Preamble

We, the people of this State which state shall henceforth be known as the state of Rhode Island, grateful to Almighty God for the civil and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and to transmit the same, unimpaired, to succeeding generations, do ordain and establish this Constitution of government.

History of Section.

Amended Nov. 5, 2020.

Compiler’s Notes.

The 2020 amendment, which substituted “this State which state shall henceforth be known as the state of Rhode Island” for “the State of Rhode Island and Providence Plantations”, was proposed by 2020 Joint Resolutions Nos. 239 and 247 and approved at the November 2020 general election by a vote of 247,261 for and 218,175 against.

NOTES TO DECISIONS

“People.”

The term “people” as used in the Constitution generally means all of the inhabitants of the state. In re Incurring of State Debts, 19 R.I. 610 , 37 A. 14, 1896 R.I. LEXIS 118 (1896).

Article I Declaration of Certain Constitutional Rights and Principles

In order effectually to secure the religious and political freedom established by our venerated ancestors, and to preserve the same for our posterity, we do declare that the essential and unquestionable rights and principles hereinafter mentioned shall be established, maintained, and preserved, and shall be of paramount obligation in all legislative, judicial and executive proceedings.

§ 1. Right to make and alter Constitution — Constitution obligatory upon all.

In the words of the Father of his Country, we declare that “the basis of our political systems is the right of the people to make and alter their constitutions of government; but that the constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”

Law Reviews.

For article, “Rhode Island’s Forgotten Bill of Rights,” see 1 R.W.U.L. Rev. 31 (1996).

Comparative Provisions.

Altering constitution:

Conn. 1965 Const., art. First, § 2.

Mass. Const. Pt. 1, Art. 7.

NOTES TO DECISIONS

Separation of Powers.

The ethics commission may not act inconsistently with the state Constitution, and thus it cannot create changes in the structure of government on the basis of its belief that such change would lead to better ethical conduct. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Collateral References.

Implied cause of action for damages for violation of provisions of state constitutions. 75 A.L.R.5th 619.

§ 2. Laws for good of whole — Burdens to be equally distributed — Due process — Equal protection — Discrimination — No right to abortion granted.

All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws. No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state, its agents or any person or entity doing business with the state. Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.

Compiler’s Notes.

The third, fourth, and fifth sentences of this section were new in the 1986 Constitution. Thus, when referencing Notes to Decisions below that concern cases decided under the pre-1986 constitution, please be aware that this section in the former constitution contained only the first two sentences.

Law Reviews.

For 2005 Survey of Rhode Island Law: Constitutional Law: Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796 (R.I. 2005), see 11 Roger Williams U. L. Rev. 765 (2006).

Daniel W. Morton-Bentley, Rhode Island’s School Funding Challenges in Historical Context, 24 Roger Williams U. L. Rev. 272 (2019).

Carla Centanni, Comment: Using ART to Make a Baby: How Rhode Island’s Insurance Coverage Mandate is Preventing Same-Sex Couples from Having Biological Children, 24 Roger Williams U. L. Rev. 331 (2019).

Comparative Provisions.

Equality at law:

Conn. 1965 Const., art. First, §§ 1, 2.

Mass. Const. Pt. 1, Art. 1.

NOTES TO DECISIONS

In General.

Before the 1986 amendment to Art. I, § 2, the Rhode Island Constitution contained only a criminal due process provision, R.I. Const., Art.I, § 10 , and did not contain a due process clause applicable to civil actions. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (R.I. 1996).

Construction.

This section is advisory and not mandatory, and is addressed to the general assembly by way of advice and direction, rather than to the courts by way of enforcing restraint upon the lawmaking power. In re Dorrance-Street, 4 R.I. 230 , 1856 R.I. LEXIS 25 (1856); Crafts v. Ray, 22 R.I. 179 , 46 A. 1043, 1900 R.I. LEXIS 74 (1900); Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916); Sepe v. Daneker, 76 R.I. 160 , 68 A.2d 101, 1949 R.I. LEXIS 100 (1949) (decided under former Constitution).

This section is advisory and is not a constitutional restraint upon the legislative power of the general assembly. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958) (decided under former Constitution).

Whether this section is advisory or mandatory with reference to the exercise of legislative power, such question is of no consequence where proposed legislation is submitted to the people and their approval in accordance with an express provision of the constitution relating specifically to such kind of legislation. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958); General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961) (decided under former Constitution).

The standard of review for determining whether legislation violates this provision, which is essentially a guarantee of equal protection of the laws, is whether the challenged statute is a capricious exercise of the legislature’s law-making power. City of Warwick v. Almac's, Inc., 442 A.2d 1265, 1982 R.I. LEXIS 817 (R.I. 1982) (decided under former Constitution).

The intent of the drafters in adding a “due process” and an “equal protection” clause to the new constitution clearly was to parallel the language of the U.S. Const., amend. 14. Jones v. Rhode Island, 724 F. Supp. 25, 1989 U.S. Dist. LEXIS 13903 (D.R.I. 1989).

Article 1, § 2, of the Rhode Island Constitution is an adoption by this state of an equal-protection and nondiscrimination clause that contains protections similar to the equal-protection guarantees contained in the Fourteenth Amendment to the United States Constitution. The record of the constitutional convention and the language of the amendment itself indicate that the convention had no intention of acting beyond that point and incorporating an ERA-type provision. The enumeration of “race, gender and handicap” was not intended to mandate, nor does it require courts to consider, issues of classification, raised under these constitutional guarantees, in any way different from actions prior to 1986 when courts addressed issued of race, gender, and handicap. Kleczek v. Rhode Island Interscholastic League, 612 A.2d 734, 1992 R.I. LEXIS 183 (R.I. 1992).

It is undisputed that intermediate scrutiny is applied to gender classifications. Intermediate scrutiny requires that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives in order to be constitutional. Kleczek v. Rhode Island Interscholastic League, 612 A.2d 734, 1992 R.I. LEXIS 183 (R.I. 1992).

The constitutional equal protection guarantee does not prohibit all legislative classifications; when a statute involves neither a suspect classification nor a fundamental right, nor a gender-based classification, the proper standard of review is minimal scrutiny. Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (R.I. 1995).

When a statutory classification does not involve a fundamental right and is not related to a suspect classification, the test for constitutionality is whether the classification is rationally related to a legitimate state interest. Rhode Island Insurer's Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 1998 R.I. LEXIS 261 (R.I. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 797, 142 L. Ed. 2d 659, 1999 U.S. LEXIS 125 (1999).

When a challenged economic statute responds to a legitimate legislative concern and the statute may achieve a resolution of that problem, the statute must be sustained on equal protection grounds. Rhode Island Insurer's Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 1998 R.I. LEXIS 261 (R.I. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 797, 142 L. Ed. 2d 659, 1999 U.S. LEXIS 125 (1999).

Contempt adjudications against print and broadcast media were set aside because they did not provide sufficient notice regarding restrictions on publishing information regarding witnesses in a celebrated murder trial, one witness in which had been murdered on the eve of trial; furthermore, the court held that the underlying prior restraints were also too restrictive to pass First Amendment muster. In re Court Order Dated October 22, 2003, 886 A.2d 342, 2005 R.I. LEXIS 158 (R.I. 2005).

Antidiscrimination clause in R.I. Const. Art. 1, § 2 is not self-executing and does not give rise to a private right of action; the clause does not set forth rules that give its principles the force of law nor does it contain a directive to the legislature for further action. Doe v. Brown Univ., 253 A.3d 389, 2021 R.I. LEXIS 77 (R.I. 2021).

Abortion.

Rhode Island General Assembly was not prohibited from enacting the Rhode Island Reproductive Privacy R.I. Gen. Laws § 23-4.13-1 Act, et seq. Furthermore, the enactment of the Act did not amount to a constitutional amendment requiring a referendum. Benson v. McKee, 273 A.3d 121, 2022 R.I. LEXIS 38 (R.I. 2022).

Burden of Proof.

The party challenging the constitutional validity of a statute carries the burden of persuading the court beyond a reasonable doubt that the legislation violates an identifiable aspect of the constitution. Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (R.I. 1995).

Businesses and Professions.

A criminal statute requiring profit corporations to pay wages weekly did not violate this section as to those corporations chartered before the statute’s enactment, where the power to alter, amend or repeal corporate charters expressly was reserved to the general assembly. State v. Brown & Sharpe Mfg. Co., 18 R.I. 16 , 25 A. 246, 1892 R.I. LEXIS 1 (1892).

G.L. 1909, ch. 193, § 3 [former § 5-37-2 ] regulating practice of medicine was not in conflict with this section, since the professional qualifications described therein constituted a reasonable classification concerning a proper subject of legislative control. State v. Heffernan, 40 R.I. 121 , 100 A. 55, 1917 R.I. LEXIS 14 (1917).

Statute regulating the business of undertaking which made no attempt to bring about any unreasonable or arbitrary classification among undertakers and which applied to all engaged in that occupation was not in violation of this section. Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 55 R.I. 454 , 182 A. 808, 1936 R.I. LEXIS 5 (1936).

The Department of Transportation’s refusal to renew an applicant’s chauffeur’s license for failure to satisfy minimum vision requirements did not violate the applicant’s constitutional right to work under the fifth amendment to the United States Constitution and article 1, § 2 of the Rhode Island Constitution. Allard v. Department of Transp., 609 A.2d 930, 1992 R.I. LEXIS 100 (R.I. 1992).

Since commercial fishermen failed to carry their burden of showing that a statute forbidding use of self-contained underwater breathing apparatus equipment to harvest shellfish from four named saltwater coastal ponds violated their equal protection and substantive due process guarantees, a trial court erred in entering summary judgment in their favor; R.I. Const. art. I, § 17 obliged the legislature to act to safeguard fishery resources for all citizens, not just commercial fishermen, and the challenged statute had a rational relationship to that duty, which was all that was required. Cherenzia v. Lynch, 847 A.2d 818, 2004 R.I. LEXIS 49 (R.I. 2004).

Rhode Island Department of Environmental Management was entitled to summary judgment on the fishermen’s claim that the lobster trap allocation scheme under R.I. Marine Fisheries Regulation 15.14.2-6 denied the fishermen their fundamental right of equal access to the fisheries as guaranteed by R.I. Const. art. I, § 17 and denied them equal protection of the laws in violation of R.I. Const. art. I, § 2 ; the LTA scheme only prohibited them from fishing for lobster by way of pot traps, and the fishermen had no fundamental right to harvest lobster using a specific method of fishing. Therefore, because the LTA scheme did not offend R.I. Const. art. I, § 17 , no fundamental right of fishery was implicated in the matter, and the 2001-2003 control period was rationally related to the legitimate government goal of conservation of the lobster fishery. Rhode Island Fishermen's Alliance, Inc. v. Dep't of Envtl. Mgmt., 2008 U.S. Dist. LEXIS 77887 (D.R.I. Oct. 3, 2008), aff'd, 585 F.3d 42, 2009 U.S. App. LEXIS 23344 (1st Cir. 2009).

— Banking Laws.

The statutory preferences and priorities set forth in the Rhode Island Depositors Economic Protection Act of 1991 do not constitute a denial to any person of the equal protection of the laws. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

This section and other provisions authorizing the appointment by the superior court of the director of the department of business regulation as the receiver for any financial institution subject to title 19 of the General Laws do not violate the procedural due process requirements of the state and federal constitutions, nor do they violate the distribution-of-powers requirement of R.I. Const. art. V . Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Creating an indemnity agreement or requiring depositors to contribute a portion of their deposits to assist in an acquisition is necessary to the type of transfers contemplated by the Depositors Economic Protection Act of 1991 and does not impair the obligation of contracts, does not constitute a taking of private property for a public use without just compensation, and does not constitute a denial to any person of the equal protection of the laws. In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356, 1991 R.I. LEXIS 173 (R.I. 1991).

— Corporations.

This section providing for a fair distribution among the citizens of the burdens of the state is not violated by G.S. 1872, ch. 38, § 1 and ch. 39, § 10 [§§ 44-3-1 and 44-3-2 ], under which a taxpayer resident in Rhode Island is liable for tax upon shares of stock owned by him in a corporation organized under the laws of another state, even though such shares are subject to tax in that other state. Dyer v. Osborne, 11 R.I. 321 , 1876 R.I. LEXIS 16 (1876).

Limited liability company’s equal protection claim under the Fourteenth Amendment and R.I. Const. art. I, § 2 based on a theory of malicious intent or bad faith failed to state a claim because an arbitrary and unlawful denial of a permit, even a denial in bad faith, did not rise above the constitutional threshold for equal protection and substantive due process claims. Pawtucket Transfer Operations, LLC v. City of Pawtucket, 539 F. Supp. 2d 513, 2008 U.S. Dist. LEXIS 22712 (D.R.I. 2008).

Limited liability company failed to state a claim for violation of its equal protection rights under the Fourteenth Amendment or R.I. Const. art. I, § 2 where even assuming that the LLC was treated selectively, it had not put forward any evidence that such treatment was unconstitutional, that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Pawtucket Transfer Operations, LLC v. City of Pawtucket, 539 F. Supp. 2d 513, 2008 U.S. Dist. LEXIS 22712 (D.R.I. 2008).

— Insurance Laws.

Section 27-34-11(b)(1), which authorizes the Rhode Island Insurers’ Insolvency Fund to recover the amounts of claims paid by insolvent insurance companies to any insured with a net worth exceeding fifty million dollars, does not violate the equal protection clause of R.I. Const., art. 1, § 2 . Rhode Island Insurer's Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 1998 R.I. LEXIS 261 (R.I. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 797, 142 L. Ed. 2d 659, 1999 U.S. LEXIS 125 (1999).

— Partnerships.

To the extent a judgment purports to bind unnamed partners in their individual capacities without their having been afforded notice and an opportunity to be heard, it is void as violative of their due process rights. Nisenzon v. Sadowski, 689 A.2d 1037, 1997 R.I. LEXIS 52 (R.I. 1997).

Causes of Action.

Female state employee who alleged that the state denied her a promotion and raise because she was a woman may not bring an action under the “equal protection” clause of this section where there are adequate statutory remedies available to her. Taylor v. State, Dep't of Mental Health Retardation & Hosp., 726 F. Supp. 895, 1989 U.S. Dist. LEXIS 14670 (D.R.I. 1989).

Applicant denied entry into the state police training academy did not have a private right of action under the equal protection clause of this section because she had alternative avenues of relief under Title VII of the Civil rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Fair Employment Practices Act, § 28-5-1 et seq. Vingi v. Rhode Island, 991 F. Supp. 44, 1996 U.S. Dist. LEXIS 21830 (D.R.I. 1996).

Plaintiff’s claim based on racial discrimination by college officials in denying him a tenure track position did not constitute a cause of action under the equal protection clause of this section because it would not provide relief otherwise unavailable to plaintiff. Eastridge v. Rhode Island College, 996 F. Supp. 161, 1998 U.S. Dist. LEXIS 2562 (D.R.I. 1998).

Given the comprehensive remedies for employer discrimination provided by the fair employment practices act and the civil rights act, it is unnecessary to create or recognize a direct remedy pursuant to the state constitution. Folan v. State/Department of Children, Youth, & Families, 723 A.2d 287, 1999 R.I. LEXIS 24 (R.I. 1999).

In a zoning case, an applicant’s claim of selective enforcement of a zoning ordinance was without merit because the applicant failed to assert a violation of its right to equal protection where no fundamental right was affected and no suspect classification was set up. Mill Realty Assocs. v. Crowe, 841 A.2d 668, 2004 R.I. LEXIS 36 (R.I. 2004).

Trial court erred in holding the exemption set forth in the Lead Hazard Mitigation Act (LHMA), R.I. Gen. Laws § 42-128.1-8(e)(4) , was unconstitutional as the challenging rental property owners failed to carry their burden of negating every conceivable rational basis that might support the exception excluding owner-occupied smaller sized dwellings from the LHMA. The classification passed constitutional muster under the Equal Protection Clauses of both the federal and State Constitutions, because the Rhode Island General Assembly rationally could have concluded that the legislation was one step toward resolving the problem of lead poisoning of children in Rhode Island and it was perfectly rational for the General Assembly to have believed that owners who lived on the premises were more likely to remedy lead hazards for their own safety and that of their families. Mackie v. State, 936 A.2d 588, 2007 R.I. LEXIS 126 (R.I. 2007).

Because the denial of a preferred license to a commercial fisherman did not implicate a fundamental right of fishery or to pursue a common occupation of life, and because R.I. Gen. Laws § 20-2.1-5 comported with both the state and federal due process and equal protection clauses, the denial by the Department of Environmental Management was upheld. Riley v. R.I. Dep't of Envtl. Mgmt., 941 A.2d 198, 2008 R.I. LEXIS 15 (R.I. 2008).

Civil Procedure.

Section 9-4-9 is not unconstitutional as a violation of the due process clauses of the United States and Rhode Island Constitutions since there is no significant taking of property and the extent of the state’s involvement in the filing of a notice of lis pendens is minimal. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

Even if the filing of a notice of lis pendens constituted a taking with sufficient state involvement, the Rhode Island lis pendens procedure provides adequate constitutional safeguards since this specifies that a plaintiff shall give notice to all named parties within seven days after recording a notice of lis pendens, and a defendant may subsequently file a motion to quash an improperly filed lis pendens; there is no constitutional requirement that the landowner be given a hearing before the notice of lis pendens is filed. Darr v. Muratore, 143 B.R. 973, 1992 U.S. Dist. LEXIS 12794 (D.R.I. 1992).

By failing to provide a preattachment hearing without at least requiring a showing of some exigent circumstance, § 10-5-5 (providing for writs of attachment after filing of equitable complaints) clearly falls short of the demands of due process. Shawmut Bank v. Costello, 643 A.2d 194, 1994 R.I. LEXIS 185 , 1994 R.I. LEXIS 188 (R.I. 1994).

In a parental rights termination proceeding, an incarcerated parent was not denied due process because the trial court properly permitted the use of the parent’s affidavit rather than a deposition at the trial where the attorneys agreed to the utility of that method given the parent’s incarceration, the affidavit afforded the parent reasonable participation, and the trial court’s refusal to grant the use of transcripts was reasonable given concern about the length of the proceedings. In re Jonathan P., 819 A.2d 198, 2003 R.I. LEXIS 87 (R.I. 2003).

Where a family court ordered that a private mental health facility become the designated treatment facility for three juveniles, but the facility was not served with process, and was deprived of notice and an opportunity to be heard in proceedings that culminated in mandatory injunctions that implicated its property interests, its due process rights under the Fourteenth Amendment and R.I. Const. art. 1, § 2 were violated. In re Stephanie B., 826 A.2d 985, 2003 R.I. LEXIS 174 (R.I. 2003).

Because a mother was represented by counsel at her termination hearing, the trial court had no duty to ensure she received due process by making findings of fact as to the reasons for her absence. In re Ariel N., 892 A.2d 80, 2006 R.I. LEXIS 13 (R.I. 2006).

— Jurisdiction.

Because an action seeking a divorce from bed and board was a quasi in rem, a Rhode Island family court had jurisdiction to hear a petition where the petitioning spouse was a Rhode Island resident and to enter child custody orders where Rhode Island had become the children’s home state; due process concerns relating to the non-petitioning spouse’s minimum contacts with the state were not a concern in an action concerning the status of Rhode Island residents. Henderson v. Henderson, 818 A.2d 669, 2003 R.I. LEXIS 52 (R.I. 2003).

Rhode Island superior court erred in its exercise of personal jurisdiction over the Ohio trustee as a nonresident defendant because the beneficiaries did not show that the trustee engaged in the business of administering the trust in Rhode Island nor that their claims against the trustee arose out of its contacts with Rhode Island; thus, the trustee’s conduct and connection with Rhode Island were such that it should not reasonably anticipate being haled into court there. Rose v. Firstar Bank, 819 A.2d 1247, 2003 R.I. LEXIS 68 (R.I. 2003).

— Retroactive Application of Statute of Limitations.

This section bars the retroactive application of § 9-1-51(b) (limitation of action based on sexual abuse of a minor, accrual from date of discovery) to claims already time-barred by a statute of limitations in effect prior to the effective date of the 1993 amendment of § 9-1-51(b) , which enlarged the period of time from three to seven years. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (R.I. 1996).

Default judgment entered against a corporation that had already been dissolved for over two years when the service was effected against it was void ab initio because R.I. Gen. Laws § 7-1.1-98 provided a two year statute of repose to bring the action and beyond that time, there was no right to maintain a cause of action against a dissolved corporation; amendments to § 7-1.1-98.1 which extended the wind-up period to five years were not applicable to a corporation where the two year limitation period had already expired before amendments allowing the five year period went into effect. There was no retroactive application of § 7-1.1-98.1, as that would have resulted in a due process violation of R.I. Const. art. I, § 2 . Theta Props. v. Ronci Realty Co., 814 A.2d 907, 2003 R.I. LEXIS 30 (R.I. 2003).

Criminal Proceedings.

The fact that § 12-19-18 provides that a failure of the Attorney General to file an information, or of a grand jury to indict on the charge that allegedly constituted a violation, entitles a deferred sentence violator, but not a probation violator, to have his sentence quashed and his imprisonment terminated does not violate equal protection. State v. McConaghy, 120 R.I. 215 , 386 A.2d 1380, 1978 R.I. LEXIS 662 (1978).

Presentation as a habitual criminal does not violate the due process and equal protection clauses, since a prosecutor’s decision to proceed under a habitual-offender statute does not violate the defendant’s rights in the absence of an “unjustifiable standard” such as race, religion, or other arbitrary classification. State v. Tregaskis, 540 A.2d 1022, 1988 R.I. LEXIS 69 (R.I. 1988).

Because the state is denied the power to deprive an accused of liberty unless every element necessary to constitute the crime charged is proven beyond a reasonable doubt, a jury instruction relieving the state of this burden violates the defendant’s due process rights. State v. Hazard, 745 A.2d 748, 2000 R.I. LEXIS 25 (R.I. 2000).

Section 12-19-21 , the habitual offender enhanced sentencing statute, does not create a separate offense and does not violate either equal protection or due process under the state or federal constitutions. State v. Clark, 754 A.2d 73, 2000 R.I. LEXIS 116 (R.I. 2000).

High court deferred to a trial court’s determination that the State had carried its burden of establishing that an African American juror had been peremptorily challenged for race-neutral reasons. State v. Price, 820 A.2d 956, 2003 R.I. LEXIS 99 (R.I. 2003).

Defendant’s rights to due process, pursuant to R.I. Const. art. I, § 2 and U.S. Const. amend. 14, were not violated where he entered a plea of nolo contendere in his plea agreement to charges stemming from an incident wherein he pointed a gun at a victim’s head, where the plea was found to have been entered into voluntarily, knowingly, and intelligently because defendant had the assistance of a Spanish interpreter and had indicated in open court that he understood the plea agreement. State v. Frazar, 822 A.2d 931, 2003 R.I. LEXIS 133 (R.I. 2003).

Revocation of defendant’s probation for failure to pay restitution, due at the rate of $100,000 per year, was neither arbitrary and capricious nor a denial of due process, since it was based on considerable evidence that defendant had enough financial resources at the time the missed payment was due to have made the payment, but chose instead to spend it on luxuries. State v. LaRoche, 883 A.2d 1151, 2005 R.I. LEXIS 195 (R.I. 2005).

As defendant failed to make out a prima facie case of purposeful discrimination by the prosecutor’s use of a peremptory challenge to remove the only Asian prospective juror, defendant’s claim that his equal protection rights were violated lacked merit; the trial court conducted a Batson analysis and determined that the prosecutor had also challenged other prospective jurors who were Caucasian and he asked all of the prospective jurors virtually the same questions. State v. Palmer, 962 A.2d 758, 2009 R.I. LEXIS 10 (R.I. 2009).

R.I. Gen. Laws § 11-37.1-15(a)(2) , as applied to defendant’s case, did not violate defendant’s right to substantive due process, because the Sex Offender Board of Review did, at a basic level, consider all the factors required by the guidelines in assessing appellant’s risk of re-offense. State v. Germane, 971 A.2d 555, 2009 R.I. LEXIS 68 (R.I. 2009).

Applicant was not entitled to postconviction relief, as the state’s failure to disclose its agreement about codefendant’s bail was inadvertent and did not prejudice him, because he knew she had been released on bail after she cooperated with state, and he was able to impeach her at trial with her cooperation agreement with the state. Had that agreement also stated that she would be released on bail if she cooperated, this would not have altered the outcome of the applicant’s trial. Gordon v. State, 18 A.3d 467, 2011 R.I. LEXIS 43 (R.I. 2011).

Applicant sought postconviction relief on grounds the state violated Brady v. Maryland by failing to disclose its withdrawal of a probation violation against the applicant’s codefendant and its reduction of her restitution obligation. This claim failed, as the state moved to violate codefendant solely to preserve her joint and several liability for the entire restitution; on the applicant’s conviction, he was ordered to pay half of the total amount and her restitution was cut in half. Gordon v. State, 18 A.3d 467, 2011 R.I. LEXIS 43 (R.I. 2011).

Trial court that revoked defendant’s probation erred in not recusing itself, because its statements to defendant before the hearing even began that, based on his record and his age, he needed to be warehoused, suggested the appearance of bias and a preconceived notion about the merits of the case. State v. Howard, 23 A.3d 1133, 2011 R.I. LEXIS 103 (R.I. 2011).

Due Process.

Before the 1986 Constitution, Rhode Island's constitution only included a criminal due process provision, Art. I, § 10, and appeals before the Rhode Island Supreme Court concerning due process in civil cases were restricted to the Fourteenth Amendment to the United States Constitution. In re Stephanie B., 826 A.2d 985, 2003 R.I. LEXIS 174 (R.I. 2003) (although there were some contrary pre-1986 decisions that applied Art. 1, § 10 in civil cases).

There is no precedent requiring a pre-deprivation hearing in the context of an eminent domain proceeding because the right to a prior hearing attaches only to the deprivation of an interest encompassed within the Due Process Clause of the Fourteenth Amendment, and the right to a hearing before the taking of private property by eminent domain is not a right encompassed within the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment and R.I. Const. art. 1, § 2 does not guarantee a property owner any particular form or method of state procedure; rather, the procedural protections due a landowner in this situation are met if the condemnee is afforded an opportunity to challenge the public use aspect of the taking, and such a remedy is available in Rhode Island. R.I. Econ. Dev. Corp. v. Parking Co. , L.P., 892 A.2d 87, 2006 R.I. LEXIS 22 (R.I. 2006).

State Housing Appeals Board (SHAB), in applying analyses required by R.I. Gen. Laws §§ 45-53-6 and 45-53-3(2) when reviewing a denial of an application to develop affordable housing, did not violate a town’s procedural due process rights, given the clear and unambiguous language of the statutes and the Rhode Island Supreme Court’s amplification of SHAB’s analytical responsibilities five months before an application for a low-income-housing permit was filed. The town’s contention that it was somehow prohibited from having an adequate opportunity to research applicable case law fell far short of a due process violation. E. Bay Cmty. Dev. Corp. v. Zoning Bd. of Review, 901 A.2d 1136, 2006 R.I. LEXIS 137 (R.I. 2006).

Where plaintiffs’ sexual assault and conspiracy suit against a church and officials was barred by the statute of limitations, plaintiffs were not denied due process when the parties’ motions for summary judgment, to recuse, and to vacate were decided without a hearing and oral argument, because plaintiffs were permitted to submit multiple memoranda and other written submissions. Ryan v. Roman Catholic Bishop, 941 A.2d 174, 2008 R.I. LEXIS 12 (R.I.), cert. denied, 555 U.S. 955, 129 S. Ct. 422, 172 L. Ed. 2d 305, 2008 U.S. LEXIS 7508 (2008).

Defendant was afforded a meaningful hearing to review his classification as a Level III, high risk sexual offender under the Sexual Offender Registration and Community Notification Act, and he failed to show that his right to procedural due process was violated because the superior court magistrate considered all written memoranda and exhibits submitted prior to the hearing, and both attorneys were granted the opportunity to develop their arguments and present further evidence at the hearing; defendant agreed to proceed on the basis of written memoranda and oral argument, and his attorney raised no objection to the scope of the hearing, nor did she inform the magistrate that she intended to call any witnesses to the stand. State v. Dennis, 29 A.3d 445, 2011 R.I. LEXIS 125 (R.I. 2011).

Defendant’s R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant was provided with the precise proceeding that defendant had requested—to forgo oral argument and proceed on the papers duly submitted— and defendant received all the process that was due. Sifuentes v. State, 43 A.3d 49, 2012 R.I. LEXIS 58 (R.I. 2012).

Defendant’s second R.I. Gen. Laws § 10-9.1-1 application for postconviction relief was properly denied because defendant’s claims regarding newly discovered evidence, a jury note, a statute of limitations defense, and defendant’s sentence were prohibited by res judicata as found in R.I. Gen. Laws § 10-9.1-8 —as they could have been, but were not, raised in defendant’s first application for postconviction relief—and defendant had no constitutional or inherent right to parole and received due process at a parole board hearing. Lyons v. State, 43 A.3d 62, 2012 R.I. LEXIS 59 (R.I. 2012).

R.I. Gen. Laws § 9-21-10(b) , which mandates 12 percent prejudgment interest in medical malpractice cases, is not unconstitutional under the due process clause. Oden v. Schwartz, 71 A.3d 438, 2013 R.I. LEXIS 80 (R.I. 2013).

Attorney’s due process rights were not violated, as the attorney was given a meaningful opportunity to be heard by a panel of the Disciplinary Board of the Rhode Island Supreme Court, presented witnesses, and admitted numerous exhibits, and was permitted to submit to the Board a post-hearing memorandum. In re McKenna, 110 A.3d 1126, 2015 R.I. LEXIS 28 (R.I. 2015).

Even if they had been properly preserved, a registrant’s due process challenges to the registrant’s sex offender risk-level classification would fail as the registrant was afforded a meaningful hearing and failed to demonstrate that his right to due process was violated. DiCarlo v. State, 212 A.3d 1191, 2019 R.I. LEXIS 106 (R.I. 2019).

Equal Burden Clause.

Because the equal burden clause is advisory and not mandatory, no separate analysis is required to determine that legislation meeting the standards of the equal protection clause also cannot be in violation of the equal burden clause. Town of Lincoln v. City of Pawtucket, 745 A.2d 139, 2000 R.I. LEXIS 27 (R.I. 2000).

Equal Protection.

R.I. Gen. Laws § 28-33-18(d) does not violate the Equal Protection Clause of R.I. Const. art. I, § 2 , because it does not infringe upon a fundamental right nor create a suspect class, and the legislature could have had a rational basis for limiting the potentially infinite and burdensome duration of partial incapacity benefits. Nichols v. R&D Constr. Co., 60 A.3d 932, 2013 R.I. LEXIS 36 (R.I. 2013).

Gender Discrimination.

The common-law policy of imposing liability only on a husband for the necessaries of his spouse is a gender-based discrimination which the modern roles of men and women in contemporary marriages can no longer justify. Landmark Medical Ctr. v. Gauthier, 635 A.2d 1145, 1994 R.I. LEXIS 2 (R.I. 1994).

Mechanics’ Lien.

Rhode Island Mechanics’ Lien Law, as amended by R.I. Gen. Laws § 34-28-17.1 , does not violate the Due Process Clauses of the Fourteenth Amendment to the United States Constitution or R.I. Const. art. 1, § 2 because, despite the lack of a showing of extraordinary circumstances and ex parte judicial review of an affidavit, the procedural safeguards that R.I. Gen. Laws § 34-28-17.1 employs, primarily the prompt post-deprivation hearing, limits the risk of erroneous deprivation. Gem Plumbing & Heating Co. v. Rossi, 867 A.2d 796, 2005 R.I. LEXIS 36 (R.I. 2005).

Municipal Corporations.

P.L. 1886, ch. 596, § 8, which provided penalties for “any person” selling liquor did not violate this section of the Constitution on the ground that § 5 of that act assessed a different penalty against pharmacists violating the act, since pharmacists are also subject to the penalty prescribed in § 8. State v. Duggan, 15 R.I. 403 , 6 A. 787, 1886 R.I. LEXIS 49 (1886).

This section did not repeal by implication the exemption from taxation of the “college estate” of Brown University granted in the charter to the university. Brown Univ. v. Granger, 19 R.I. 704 , 36 A. 720, 1897 R.I. LEXIS 11 (1897).

Statute authorizing town to purchase waterworks did not violate this section on the ground that taxpayers outside fire district would be taxed, since the authority contemplated a waterworks for the entire town, not only the fire district. Peabody v. Westerly Waterworks, 20 R.I. 176 , 37 A. 807, 1897 R.I. LEXIS 73 (1897).

The power of the general assembly to make exemptions from the burdens of the state is clear. Crafts v. Ray, 22 R.I. 179 , 46 A. 1043, 1900 R.I. LEXIS 74 (1900).

P.L. 1896, chs. 387 and 386, by which general assembly ratified acts of town council of East Providence exempting property of certain corporations from taxation under authority of P.L. 1892, ch. 1088 [§ 44-3-9 ], was not in violation of this section, where a majority of taxpayers had authorized such exemption and the town council approved. Crafts v. Ray, 22 R.I. 179 , 46 A. 1043, 1900 R.I. LEXIS 74 (1900).

A city ordinance requiring the cleaning of snow from sidewalks by the owners and occupants of land bordering the sidewalk does not violate this section, since the owners and occupants of land are collectively the inhabitants of the city. State ex rel. Egan v. McCrillis, 28 R.I. 165 , 66 A. 301, 1907 R.I. LEXIS 24 (1907).

G.L. 1909, ch. 238, § 7 [§ 32-2-8 ], providing for an apportionment and assessment by the metropolitan park commissioners of the amounts required of each city and town to meet the expense of the public parks in the district does not violate this section, since the question of distribution of expense of government is a legislative function, and the statute does not show an abuse of legislative discretion. East Shore Land Co. v. Peckham, 33 R.I. 541 , 82 A. 487, 1912 R.I. LEXIS 117 (1912).

A zoning ordinance which is not capricious and an arbitrary exercise of the lawmaking power is not invalid under this constitutional provision. Doherty v. Town Council of S. Kingstown, 61 R.I. 248 , 200 A. 964, 1938 R.I. LEXIS 68 (1938).

Provision of P.L. 1949, ch. 2373 [§ 3-7-5 ] for issuance of Class A liquor license to holders of Class E licenses did not violate this section, since provision was a reasonable classification within the police power of state over the liquor traffic. Romano v. Daneker, 77 R.I. 61 , 73 A.2d 236, 1950 R.I. LEXIS 38 (1950).

P.L. 1950, ch. 2574, §§ 48(d) and 81 [former §§ 45-32-5(d) and (j)], did not violate fair distribution of the burden clause, on the ground that public slum and redevelopment agency would sell or lease land obtained at a value less than that paid for the land by the agency. Ajootian v. Providence Redevelopment Agency, 80 R.I. 73 , 91 A.2d 21, 1952 R.I. LEXIS 11 (1952).

That portion of Public Laws 1959, ch. 97 (§ 44-18-21 ), which exempts retailers of motor vehicles from the duty of collecting sales and use taxes does not involve such discrimination as to render it unconstitutional for assuming that the clause in question discriminates in some respects against retailers who are required to collect such taxes and in favor of motor vehicle retail dealers who are exempt from doing so, even though discriminatory, such legislation would not violate constitutional provisions unless such discrimination had no basis in reason. Opinion to Governor, 89 R.I. 329 , 153 A.2d 168, 1959 R.I. LEXIS 100 (1959).

The exemption from taxation granted for religious and kindred associations is not in derogation of this section of the constitution specifying all laws should be made for the good of whole and the burdens fairly distributed among its citizens. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

Former § 45-24-4.1, which authorizes conditional zoning, is not unconstitutional on its face because it does not authorize a wholly arbitrary differentiation per se and because it is subject to former § 45-24-3 of the enabling act which prohibits any arbitrary or discriminatory exercise of the amendatory power in making zoning regulations. Sweetman v. Town of Cumberland, 117 R.I. 134 , 364 A.2d 1277, 1976 R.I. LEXIS 1608 (1976).

In obedience to the second sentence of this section, a grant of exemption from taxation is not to be presumed from the laws of this state; rather, any doubt or ambiguity in the exemption laws must be resolved in favor of the public. City of Providence v. Killoran, 447 A.2d 369, 1982 R.I. LEXIS 924 (R.I. 1982).

As legislature acted within its power in assigning capital costs to the sewer users but delegating to the town council the choice of assigning the costs of debt service to users or to all taxpayers, under 1999 Public Laws ch. 318, § 1, that law did not violate equal protection. Newport Court Club Assocs. v. Town Council, 800 A.2d 405, 2002 R.I. LEXIS 168 (R.I. 2002).

In a zoning case, an applicant’s claim of selective enforcement of a zoning ordinance was without merit because the applicant failed to assert a violation of its right to substantive due process where there was no proof that the town’s action was clearly arbitrary and unreasonable, having no substantial relation to the public’s health, safety, or welfare. Mill Realty Assocs. v. Crowe, 841 A.2d 668, 2004 R.I. LEXIS 36 (R.I. 2004).

R.I. Gen. Laws § 45-9-1 et seq., allowing the Director of the Rhode Island Department of Revenue (Director) to appoint a receiver to conduct a city’s affairs in a fiscal emergency, did not violate a mayor’s procedural due process rights when the mayor was relegated to an advisory capacity because (1) the mayor did not have a property interest in the mayor’s position, and (2) the mayor was not removed from office. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

R.I. Gen. Laws § 45-9-7 , allowing the Director of the Rhode Island Department of Revenue (Director) to appoint a receiver to conduct a city’s affairs in a fiscal emergency, did not violate the substantive due process provisions of R.I. Const. art. I, § 2 because it was not shown that R.I. Gen. Laws § 45-9-1 et seq. (the act) had no substantial relation to the public health, safety, morals, or general welfare, as the act explicitly stated at R.I. Gen. Laws § 45-9-16 that the act was necessary for the welfare of the state and the state’s inhabitants. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

R.I. Gen. Laws § 45-9-1 et seq. (the act), allowing the Director of the Rhode Island Department of Revenue to appoint a receiver to conduct a city’s affairs in a fiscal emergency, did not violate the equal protection provisions of R.I. Const. art. I, § 2 when, in R.I. Gen. Laws § 45-9-9 , the act allegedly created classes of union members and nonunion members because the two alleged classes were not similarly situated. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

“People.”

The term “people” as used in the Constitution is broad and comprehensive, and comprises in most instances all of the inhabitants of the state. State v. Kofines, 33 R.I. 211 , 80 A. 432, 1911 R.I. LEXIS 123 (1911).

Privacy.

A decision of unmarried adults to engage in private consensual sexual activities is not of such a fundamental nature and is not so implicit in the concept of ordered liberty as to warrant its inclusion in the guarantee of personal privacy. Therefore, the prosecution of an unmarried person for a violation of former version of § 11-10-1 was constitutional. State v. Lopes, 660 A.2d 707, 1995 R.I. LEXIS 175 (R.I. 1995), cert. denied, 516 U.S. 1123, 116 S. Ct. 934, 133 L. Ed. 2d 861, 1996 U.S. LEXIS 1105 (1996) (decision under prior law).

Probationers.

Imposition of probation supervision fees upon probationers convicted and placed on probation prior to the effective date of § 42-56-38 , creating the supervision fees, was not egregious or conscience-shocking and therefore did not support the probationers’ allegation that the fee imposition violated their substantive due process rights. Taylor v. Rhode Island, 101 F.3d 780, 1996 U.S. App. LEXIS 31159 (1st Cir. 1996), cert. denied, 521 U.S. 1104, 117 S. Ct. 2480, 138 L. Ed. 2d 989, 1997 U.S. LEXIS 3883 (1997).

Policy restricting the out-of-state travel of sex offender probationers did not violate the probationer’s due process rights because the probationer’s constitutional right to travel, having been legally extinguished by a valid conviction followed by imprisonment, was not revived by the change in status from prisoner to parolee, and thus, since the probationer had no right to interstate travel, he could claim no constitutional violation; moreover, the limitations on interstate travel established by the policy served a legitimate governmental interest and were reasonable. Pelland v. Rhode Island, 317 F. Supp. 2d 86, 2004 U.S. Dist. LEXIS 8125 (D.R.I. 2004).

Policy restricting the out-of-state travel of sex offender probationers did not violate the probationer’s equal protection rights because probationers had no fundamental right of interstate travel for the balance of their sentences, and without a right of interstate travel, there was no equal protection violation; moreover, the increased interstate travel restrictions on sex offender probationers were rationally related to a legitimate governmental interest since the policy promoted community safety and compliance with the laws in other states governing the interstate travel of sex offenders, and the restraints imposed by the policy served to improve the ability of the department of corrections to oversee the movements of sex offender probationers. Pelland v. Rhode Island, 317 F. Supp. 2d 86, 2004 U.S. Dist. LEXIS 8125 (D.R.I. 2004).

Because the hearing justice failed to conduct a threshold inquiry into whether the State had good cause for denying defendant the opportunity to confront anyone with personal knowledge of his probationary record in Massachusetts and failed to analyze the reliability of the State’s substitute evidence, the hearing justice committed reversible error by erroneously admitting the hearsay testimony. State v. Bernard, 925 A.2d 936, 2007 R.I. LEXIS 84 (R.I. 2007).

High court rejected defendant’s claim that his due process rights were violated when he was sentenced as a probation violator because he did not believe he was on probation after completing a five-year prison term incarcerative term, because on his release from prison, he signed papers in which he acknowledged the conditions of his probation. State v. Roberts, 59 A.3d 693, 2013 R.I. LEXIS 27 (R.I. 2013).

Public Assistance.

The department of human service’s promulgation and enforcement of a rule implementing changes in eligibility requirements under § 40-6-3.1 without providing the affected class with notice of the new incapacity standards, and without providing persons whose benefits were terminated with individualized notice of the reasons of the termination decision, deprived the class of their benefits without due process of law, contrary to Art. 1, sec. 2 of the Rhode Island Constitution and the Fourteenth Amendment of the United States Constitution.Avanzo v. Rhode Island Dep't of Human Servs., 625 A.2d 208, 1993 R.I. LEXIS 139 (R.I. 1993).

Public Officials.

There is an implied right to sue a state official individually for damages resulting from an alleged violation of the due process clause of this section. Jones v. Rhode Island, 724 F. Supp. 25, 1989 U.S. Dist. LEXIS 13903 (D.R.I. 1989).

Amendment to Rhode Island’s Incentive Pay Statute, R.I. Gen. Laws § 42-56.1-1 et seq., did not deprive a union’s members, correctional officials, of a constitutionally protected substantive due process right; no property right arose out of any contract between the correctional officials and the state, and the statute itself did not create a property interest. R.I. Bhd. of Corr. Officers v. Rhode Island, 264 F. Supp. 2d 87, 2003 U.S. Dist. LEXIS 8899 (D.R.I. 2003), aff'd, 357 F.3d 42, 2004 U.S. App. LEXIS 1266 (1st Cir. 2004).

Schools.

A statutory provision empowering a town by vote to abolish a school district and vest its school property in the town subject to appraisal by commissioners appointed by the supreme court, and providing for a tax levy on the whole town for the amount of the appraisal with remission to taxpayers of each district of their proportional share of such appraised value, is not violative of the distribution of burdens clause, as the tax and remission is virtually a tax paid into the town for the schoolhouses purchased and paid back again to the members of the respective school districts in proportion to their interest in same. In re Council of Cranston, 18 R.I. 417 , 28 A. 608, 1893 R.I. LEXIS 79 (1893).

Rule of high school sports league barring recently transferred students from participation in league games did not violate the equal protection clause of either the United States or Rhode Island constitution. Hebert v. Ventetuolo, 480 A.2d 403, 1984 R.I. LEXIS 595 (R.I. 1984).

Regulations requiring employment-background checks and criminal-record checks, including fingerprinting, for the owners and operators of pre-school programs and all other persons including full-time or part-time employees such as teachers, aides, secretaries, food handlers, bus drivers, volunteers and student teachers are valid and do not violate constitutional provisions relating to due process, equal protection, search and seizure, and the right to privacy. Henry v. Earhart, 553 A.2d 124, 1989 R.I. LEXIS 4 (R.I. 1989).

Rhode Island’s current statutory scheme for financing public education, §§ 16-7-20 and former 16-7-20.4 , does not violate either the education clause of art. 12 of the R.I. Constitution or the equal protection provision of this section. City of Pawtucket v. Sundlun, 662 A.2d 40, 1995 R.I. LEXIS 192 (R.I. 1995).

Providence school board terminated a teacher’s employment because he did not establish Providence residency within six months from the date of his elevation to regular teacher and did not otherwise qualify under the grandfather policy as applied by the school board as required by § 1210 of the Providence Home Rule Charter of 1980 at the time. The teacher failed to show any malicious or bad-faith intent by defendant in not renewing his teaching contract and did not selectively enforce § 1210 against the teacher in violation of the Fourteenth Amendment or R.I. Const. art. I, § 2 . Providence Teachers' Union Local 958, AFL-CIO, AFT v. City Council of Providence, 888 A.2d 948, 2005 R.I. LEXIS 223 (R.I. 2005).

Complaint of school committees, superintendents, students, and parents that the legislatively enacted school funding formula failed to allocate adequate resources to less affluent communities was properly dismissed because they did not present facts to suggest that the legislative enactment was devoid of any substantial relation to the public health, safety, morals, or general welfare. Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 2014 R.I. LEXIS 52 (R.I. 2014).

Streets and Highways.

An act “in relation to the laying out, etc. streets in the city of Providence,” passed at the January session of 1854, which permits assessment for benefits to adjoining land is in accord with this section, since it taxes those persons whose land is benefited in order to help pay damages. In re Dorrance-Street, 4 R.I. 230 , 1856 R.I. LEXIS 25 (1856).

An act “in amendment of an act entitled ‘an act to provide for the repairing of the streets and highways in Newport,’” passed at the May session, 1853, which provided for assessment of landowners for curbstones, was a valid constitutional exercise of the taxing power. Deblois v. Barker, 4 R.I. 445 , 1857 R.I. LEXIS 17 (1857).

P.L. 1873, ch. 313, § 4, under which assessments for a sewer in the city of Providence were made on the basis of area and frontage of abutting landowners, does not violate the last clause of this section since such assessments are a type of taxation, and determination of the assessments in the manner specified results in placing the burden chiefly where the benefit accrues, so that the statute is fair in its operation. Cleveland v. Tripp, 13 R.I. 50 , 1880 R.I. LEXIS 39 (1880).

Act ordering the director of transportation to repair and maintain a town street as a state road and as part of the state highway system did not violate this section, inasmuch as the language of this section has been construed to be advisory and not mandatory. In re Advisory Opinion to Governor, 510 A.2d 941, 1986 R.I. LEXIS 491 (R.I. 1986).

Taxation.

The failure or omission of assessors to include an owner’s taxable property on the list of ratable property in the town is violative of the constitutional requirement that the public burdens ought to be fairly distributed. McTwiggan v. Hunter, 18 R.I. 776 , 30 A. 962, 1895 R.I. LEXIS 5 (1895).

The second sentence of this section relates to and was intended to control in a general sort of way at least the framing of laws relating to taxation and clearly means that taxes ought to be fairly distributed. Brown Univ. v. Granger, 19 R.I. 704 , 36 A. 720, 1897 R.I. LEXIS 11 (1897).

The power of the general assembly to make exemptions from the burdens of the state is clear. Crafts v. Ray, 22 R.I. 179 , 46 A. 1043, 1900 R.I. LEXIS 74 (1900).

The standard of taxation “full and fair cash value” as set out in G.L. 1923, ch. 60, § 3 [§ 44-5-12 ] is not in violation of this section because it gives a substantial basis of uniformity for taxing and does it without discrimination. Allen v. Bonded Mun. Corp., 62 R.I. 101 , 4 A.2d 249, 1938 R.I. LEXIS 16 (1938).

The imposition of a tax on gross receipts as provided by statute (former § 44-10-5) was not so unfair as to violate the constitution although an identical volume of sales in one case might have represented a substantial profit for one concern and slight profit or even a loss for another. Kalian v. Langton, 96 R.I. 367 , 192 A.2d 12, 1963 R.I. LEXIS 101 (1963).

The resolutions authorizing the assessments upon improved land of $7 per frontage foot to a maximum of 75 feet and $5.25 per frontage foot for all frontage in excess of 75 feet for land with dwelling houses and $5.25 per frontage foot for all unimproved land was constitutional, such being a reasonable rate differential between improved and unimproved land. Garcia v. Falkenholm, 97 R.I. 450 , 198 A.2d 660, 1964 R.I. LEXIS 103 (1964).

Where, pursuant to a policy of reassessing all real property sold within the preceding year on the basis of the values established by such sales, the tax assessors raised the assessment of plaintiff’s property but there was no reassessment of similar, adjoining and neighboring properties, and plaintiffs failed to prove that a substantial amount of the real property assessed in the area was assessed at a lower percentage of its fair market value than their property, they failed to establish that their property was not assessed at its full and fair cash value, as required by § 44-5-12 , and this section. Merlino v. Tax Assessors, 114 R.I. 630 , 337 A.2d 796, 1975 R.I. LEXIS 1465 (1975).

Once the municipal tax assessor has established the property’s fair market value, pursuant to § 44-5-12 , if he is assessing at less than 100 percent of value, he must comply with the directive of this section and apply the same percentage factor to each piece of property being assessed. Rosen v. Restrepo, 119 R.I. 398 , 380 A.2d 960, 1977 R.I. LEXIS 2053 (1977).

Correcting past inequities in assessments without a general revaluation is not illegal per se or violative of constitutional uniformity or equal-protection provisions, but when the tax authorities act out of improper or discriminatory motives, the legitimacy of the revaluation process ends. Picerne v. DiPrete, 428 A.2d 1074, 1981 R.I. LEXIS 1105 (R.I. 1981).

Where the plaintiffs proved, not only that not all of the business tangible personal property in the city was assessed by the assessor, but that this was true also of household tangible personal property, the assessments on the business personalty of the plaintiffs are violative both of the equal protection clause of the United States Constitution, and the guarantee of R.I. Const., art. 1, § 2 , requiring that the burdens of the state be fairly distributed among its citizens, but absent proof by plaintiffs to demonstrate that the assessor intentionally sought to commit fraud or injury or selectively to discriminate against particular businesses, the trial justice properly determined that the assessment was illegal rather than void. Oster v. Tellier, 544 A.2d 128, 1988 R.I. LEXIS 89 (R.I. 1988).

Res judicata prevented relitigation in federal court of a claim that federal and state constitutional and statutory rights were violated by the repeal of a state tax exemption for certain pension income. Keating v. Rhode Island, 785 F. Supp. 1094, 1992 U.S. Dist. LEXIS 3068 (D.R.I. 1992).

Since the tax set forth in § 44-34-1 , relating to motor vehicles, is a property tax and not an excise tax, the constitutional protections of due process and equal protection are inapplicable. Cohen v. Harrington, 722 A.2d 1191, 1999 R.I. LEXIS 4 (R.I. 1999).

Taxpayer’s claim under the fair distribution clause was unavailing, because the alleged illegal assessments could not be said to be so outrageously subversive as to offend the notions of fairness given their failure to raise any red flags for years. Lehigh Cement Co. v. Quinn, 173 A.3d 1272, 2017 R.I. LEXIS 125 (R.I. 2017).

Voting.

P.L. 1948, ch. 2151 [§ 17-19-15 ] does not violate this section by limiting use of party levers on voting machines to major parties, since the act does not limit the right to vote but merely regulates the method of voting so as to promote the orderly and expeditious handling of an election. Morrison v. Lamarre, 75 R.I. 176 , 65 A.2d 217, 1949 R.I. LEXIS 29 (1949).

Workers’ Compensation.

The Workers’ Compensation Act does not violate this section since it is addressed to the general assembly by way of advice and direction and the “burdens of the state” relate to taxation. Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916).

Section 28-35-32 provision for granting costs to the employee in certain circumstances but in no circumstances to the employer is not an improper classification, since there was not improper or unreasonable inequality of treatment of employers and employees since the employers were treated alike and that all employees were treated alike; and, while the two groups were treated differently, it is because, generally speaking, they are different. Gomes v. Bristol Mfg. Corp., 95 R.I. 126 , 184 A.2d 787, 1962 R.I. LEXIS 131 (1962).

Retroactive repeal of the provision of the workers’ compensation statute allowing employers of previously injured employees to obtain reimbursement of certain payments did not violate equal protection guarantees of either the federal or state Constitutions, since the legislature’s asset-preservation purpose unquestionably furthered a legitimate state interest. D. Corso Excavating, Inc. v. Poulin, 747 A.2d 994, 2000 R.I. LEXIS 61 (R.I. 2000).

There was nothing in the record that indicated that R.I. Const. art. I, § 2 or § 5 were offended by the statutory scheme governing the employee’s workers’ compensation benefits; there was nothing therein which would require that she be granted the relief that she was seeking; that is, to discontinue her workers’ compensation benefits. Ruggiero v. City of Providence, 889 A.2d 691, 2005 R.I. LEXIS 224 (R.I. 2005).

Zoning.

Even if the limited liability company could have established that the zoning certificates gave rise to a constitutionally protected property right, it could not establish that it was deprived of that interest without due process of law; the fact that the LLC was not provided with a hearing prior to the deprivation of its purported property right did not, by itself, establish a violation of due process. Moreover, the post-deprivation procedural safeguards were more than adequate to satisfy the requirements of procedural due process. Pawtucket Transfer Operations, LLC v. City of Pawtucket, 539 F. Supp. 2d 513, 2008 U.S. Dist. LEXIS 22712 (D.R.I. 2008).

Amendment to a zoning ordinance, restricting the number of college students who could live together in single-family homes in certain residential areas in the city, did not violate the equal protection or due process rights of the property owners or the college students who rented those properties because, under rational basis review, the property owner was unable to convince the Supreme Court that the city council’s goal of maintaining the residential character of neighborhoods would not be advanced by restricting specified housing configurations; and the property owner was unable to negate every conceivable basis that might support the amendment. Fed. Hill Capital, LLC v. City of Providence, 227 A.3d 980, 2020 R.I. LEXIS 34 (R.I. 2020).

Collateral References.

Action under 42 U.S.C. § 1983 against mental institution or its staff for injuries to institutionalized person. 118 A.L.R. Fed. 519.

Adoption and application of “tainted” approach or “dual motivation” analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated. 15 A.L.R.6th 319.

Application of Class-of-One Theory of Equal Protection to Public Employment. 32 A.L.R.6th 457.

Application of equal protection principle recognized in Bush v. Gore , 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), to elections cases. 104 A.L.R.6th 547.

Application of federal constitutional guarantees or federal statutory provisions to discipline or punishment of students with disabilities. 12 A.L.R. Fed. 3d Art. 1 (2016).

Application of statute denying access to courts or invalidating contracts where corporation fails to comply with regulatory statute as affected by compliance after commencement of action. 23 A.L.R.5th 744.

Application of Stigma-Plus Due Process Claims to Education Context. 41 A.L.R.6th 391.

Constitutional claims of persons placed on federal government’s no-fly list or other terrorist watch lists. 5 A.L.R. Fed. 3d Art. 5 (2015).

Equal protection and due process clause challenges based on racial discrimination — Supreme Court cases. 172 A.L.R. Fed. 1.

Equal protection and due process clause challenges based on sex discrimination — Supreme Court cases. 178 A.L.R. Fed. 25.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 A.L.R.5th 527.

Failure of State Prosecutor to Disclose Exculpatory Physical Evidence as Violating Due Process — Evidence Other Than Weapons or Personal Items. 56 A.L.R.6th 185.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Federal and state constitutional provisions and state statutes as prohibiting employment discrimination based on heterosexual conduct or relationship. 123 A.L.R.5th 411.

Federal and state constitutional provisions as prohibiting discrimination in employment on basis of gay, lesbian, or bisexual sexual orientation or conduct. 96 A.L.R.5th 391.

Nonconsensual treatment of involuntarily committed mentally ill persons with neuroleptic or antipsychotic drugs as violative of state constitutional guaranty. 74 A.L.R.4th 1099.

Racial profiling by law enforcement officers in connection with traffic stops as infringement of federal constitutional rights or federal civil rights statutes. 91 A.L.R. Fed. 2d 1.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 A.L.R.4th 536.

Search and seizure: reasonable expectation of privacy in driveways. 60 A.L.R.5th 1.

Sex discrimination in public education under Title IX — Supreme Court cases. 158 A.L.R. Fed. 563.

Use of Informant by Federal Law Enforcement Agencies as Infringement of Defendant’s Rights to Due Process. 36 A.L.R. Fed. 3d Art. 1 (2018).

Voir dire exclusions of men from state trial jury or jury panel—Post-J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, cases. 88 A.L.R.5th 67.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes — public employment cases. 153 A.L.R. Fed. 609.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — nonemployment cases. 152 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — private employment cases. 150 A.L.R. Fed. 1.

What constitutes reverse or majority race or national origin discrimination violative of federal constitution or statutes — Public employment cases. 168 A.L.R. Fed. 1.

What constitutes reverse sex or gender discrimination against males violative of federal constitution or statutes — Nonemployment cases. 166 A.L.R. Fed. 1.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

§ 3. Freedom of religion.

Whereas Almighty God hath created the mind free; and all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend to beget habits of hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with full liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person’s voluntary contract; nor enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person’s religious belief; and that every person shall be free to worship God according to the dictates of such person’s conscience, and to profess and by argument to maintain such person’s opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.

Cross References.

Federal guaranty of freedom of religion, U.S. Const., Amend. I.

Law Reviews.

For article, “Some Notes on the Establishment Clause,” see 2 R.W.U.L. Rev. 1 (1996).

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

For symposium articles, Religious Liberty in America and Beyond: Celebrating the Legacy of Roger Williams on the 400th Anniversary of his Birth, see 10 Roger Williams U. L. Rev. 279 (2005).

For article, On Teaching Neo-Darwinism In Public Schools: Avoiding the Pall of Orthodoxy and the Threat of Establishment, see 11 Roger Williams U. L. Rev. 143 (2005).

Comparative Provisions.

Religious freedom:

Conn. 1965 Const., art. First, § 3, art. Seventh.

Mass. Const. Pt. 1, Art. 2, Pt. 1, Art. 3.

NOTES TO DECISIONS

Adoption Records.

Because an adoptee did not prove the existence of good cause for access to the adoption records, and because deferring to the adoptee’s religious beliefs would be a preferential treatment by government, in violation of R.I. Const. art. I, § 3 and the First Amendment, the trial court properly denied the adoptee’s petition. In re Philip S., 881 A.2d 931, 2005 R.I. LEXIS 185 (R.I. 2005).

Elections.

Where postponement of municipal general election scheduled for Rosh Hashanah would impose no significant hardship on city, voters or candidates, and where failure to postpone would force Jewish voters to choose between religious duties and their right to vote, and would also subject election results to later constitutional attack, there was no compelling state or municipal interest requiring that the election be held as originally scheduled. Michaelson ex rel. Lewis v. Booth, 437 F. Supp. 439, 1977 U.S. Dist. LEXIS 14182 (D.R.I. 1977).

Mediation of Disputes.

Parishioner could not maintain cause of action against church authorities for failure to mediate, in a manner that was satisfactory to her, her claims of clergy malpractice against a minister with whom she had had an affair; judicial interference in a matter of ecclesiastical discipline was impermissible. Martin v. Howard, 784 A.2d 291, 2001 R.I. LEXIS 229 (R.I. 2001).

Meeting in Public Park.

City ordinance which prohibited any person from addressing any political or religious meeting in a public park interfered with freedom of religion when, in its application, it penalized a minister of Jehovah’s Witness for preaching in a public park, although other religious groups could conduct religious services there with impunity. Fowler v. Rhode Island, 345 U.S. 67, 73 S. Ct. 526, 97 L. Ed. 828, 1953 U.S. LEXIS 2330 (1953).

Practice of Medicine.

A Christian Science practitioner charged with the unlawful practice of medicine could not raise the question that to forbid him to practice medicine was a violation of the freedom of religion guaranteed by this section, since he was not practicing medicine in the popular sense. State v. Mylod, 20 R.I. 632 , 40 A. 753, 1898 R.I. LEXIS 128 (1898).

Religious Education.

Section 16-23-2 , under which textbooks may be lent for use in sectarian schools, does not violate this section. Bowerman v. O'Connor, 104 R.I. 519 , 247 A.2d 82, 1968 R.I. LEXIS 676 (1968).

The imposition of an employment security tax on a Catholic school for payment of benefits to a discharged teacher does not create an unconstitutional burden on the school’s right to the free exercise of religion, where the school has voluntarily elected to participate in the state’s unemployment compensation system even though the services performed for the school are specifically exempt from the provisions of the Employment Security Act. St. Pius X Parish Corp. v. Murray, 557 A.2d 1214, 1989 R.I. LEXIS 74 (R.I. 1989).

Standards of Review.

While the freedom to hold religious beliefs and opinions is absolute, the freedom to act in harmony with these religious beliefs and opinions is not beyond state regulation where such restriction serves the public interest by promoting public health and safety or preserving order. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

When an individual shows that the state has interfered with an action of a sincere, religious nature, then the state must establish that there was a compelling state interest in the regulation and that such an interest could not be promoted by a less restrictive means. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

Tax Exemptions.

The people did not intend by the adoption of this section of the constitution to prohibit the legislature from exempting religious societies, organizations and their property from taxation as had been its common practice. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

Tax exemptions granted to religious societies, organizations and their property as is in common practice are not in derogation of the religious freedom clauses of the state and federal constitutions. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

Trials.

Where petitioner claimed that his act of wearing his prayer cap in the courtroom was protected by the free exercise clause of the First Amendment of the U.S. Constitution, in order to justifiably curtail the exercise of that alleged right, the trial justice should first have allowed petitioner to display the sincerity of his religious belief, and then should have balanced petitioner’s first amendment right with the interest of the court in maintaining decorum in its proceedings by regulating dress in the courtroom. In re Palmer, 120 R.I. 250 , 386 A.2d 1112, 1978 R.I. LEXIS 659 (1978).

Unemployment Compensation.

The exclusion for religious organizations in § 28-42-8 does not manifest any governmental intent or purpose to advance or promote religion. Instead, the statute reflects the wholly secular purpose of the facilitation of the administration of the unemployment benefits programs by excluding employees who are typically not fully active or permanent members of the workforce. Rojas v. Fitch, 928 F. Supp. 155, 1996 U.S. Dist. LEXIS 8122 (D.R.I. 1996), aff'd, 127 F.3d 184, 1997 U.S. App. LEXIS 27932 (1st Cir. 1997).

Collateral References.

Application of First Amendment’s “Ministerial Exception” or “Ecclesiastical Exception” to Federal Civil Rights Claims. 41 A.L.R. Fed. 2d 445.

Cause of action for clergy malpractice. 75 A.L.R.4th 750.

Constitutionality of regulation or policy governing prayer, meditation, or “moment of silence” in public schools. 110 A.L.R. Fed. 211.

Constitutionality of teaching or otherwise promoting secular humanism in public schools. 103 A.L.R. Fed. 538.

Constitutionality of teaching or suppressing teaching of Biblical creationism or Darwinian evolutionary theory in public schools. 102 A.L.R. Fed. 537.

Construction and application of establishment clause of First Amendment — U.S. Supreme Court cases. 15 A.L.R. Fed. 2d 573.

First amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

Free Exercise Clause of First Amendment — U.S. Supreme Court Cases. 37 A.L.R. Fed. 3d Art. 12 (2019).

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number. 93 A.L.R.5th 1.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs. 10 A.L.R.6th 513.

Liability of church or religious society for sexual misconduct of clergy. 5 A.L.R.5th 530.

Prisoner beard regulations as religious discrimination under First Amendment or Religious Land Use and Institutionalized Persons Act. 93 A.L.R. Fed. 2d 439.

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 (5 U.S.C. § 552a(e)(7)). 20 A.L.R. Fed. 2d 437.

Validity, construction, and application of Religious Freedom Restoration Act ( 42 U.S.C. §§ 2000bb et seq.). 135 A.L.R. Fed. 121.

What constitutes “hybrid rights” claim under Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876. 163 A.L.R. Fed. 493.

§ 4. Slavery prohibited.

Slavery shall not be permitted in this state.

Cross References.

Federal prohibition of slavery, U.S. Const., Amend. XIII.

NOTES TO DECISIONS

Prisoners.

A prisoner in Rhode Island is not a slave. Anderson v. Salant, 38 R.I. 463 , 96 A. 425, 1916 R.I. LEXIS 8 (1916).

Convict in state prison was not rendered a slave within the meaning of this section by being compelled to perform, in the state prison under control of the state, the labor imposed as part of his sentence on materials furnished by a contractor with the state under P.L. 1912, ch. 825, § 21, the convict receiving no compensation therefor. Anderson v. Salant, 38 R.I. 463 , 96 A. 425, 1916 R.I. LEXIS 8 (1916).

§ 5. Entitlement to remedies for injuries and wrongs — Right to justice.

Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which may be received in one’s person, property, or character. Every person ought to obtain right and justice freely, and without purchase, completely and without denial; promptly and without delay; conformably to the laws.

Law Reviews.

James M. Kovach, Comment: Life and Civil Death in the Ocean State: Resurrecting Life-Prisoners’ Right to Access Courts in Rhode Island, 24 Roger Williams U. L. Rev. 400 (2019).

Comparative Provisions.

Remedies at law:

Conn. 1965 Const., art. First, § 10.

Mass. Const. Pt. 1, Art. 11.

NOTES TO DECISIONS

Applicability.

Contentions that P.L. 1915, ch. 1278 delegated to the city of Providence the right to decide ex parte the necessity of a taking of property for public use and authorized such city to take possession and dispose of property without offering compensation or having value determined could not be founded on this section, as this section is intended to prohibit exactions of money from litigants for the granting of justice. Joslin Mfg. Co. v. Clarke, 41 R.I. 350 , 103 A. 935, 1918 R.I. LEXIS 50 (1918), writ of error dismissed, 251 U.S. 535, 40 S. Ct. 55, 64 L. Ed. 401, 1919 U.S. LEXIS 1809 (1919).

This section did not apply to an act which authorized the acquisition of the assets of an old company by a new company. Narragansett Elec. Lighting Co. v. Sabre, 50 R.I. 288 , 146 A. 777, 1929 R.I. LEXIS 64 (1929).

This section is not limited to a prohibition of the purchase and sale of justice. This interpretation is too narrow and ignores the clear command contained in the first sentence. Kennedy v. Cumberland Eng'g Co., 471 A.2d 195, 1984 R.I. LEXIS 444 (R.I. 1984).

There was nothing in the record that indicated that R.I. Const. art. I, § 2 or § 5 were offended by the statutory scheme governing the employee’s workers’ compensation benefits; there was nothing therein which would require that she be granted the relief that she was seeking; that is, to discontinue her workers’ compensation benefits. Ruggiero v. City of Providence, 889 A.2d 691, 2005 R.I. LEXIS 224 (R.I. 2005).

Gas company’s argument that a landowner was precluded from seeking abatement or other injunctive relief for contamination of his property by hazardous substances when the contamination violated state environmental laws was not supported by either logic or law; R.I. Gen. Laws § 10-1-1 expressly permitted a private citizen to seek abatement or injunctive relief in an action for nuisance and state environmental laws were not intended to preempt that right. Corvello v. New Eng. Gas Co., 532 F. Supp. 2d 396, 2008 U.S. Dist. LEXIS 6923 (D.R.I. 2008).

Purpose of R.I. Const., Art. I, § 5 is to forbid the total denial of access to the courts for the adjudication of a recognized claim; therefore, as a matter of state constitutional law, plaintiffs’ challenges to the constitutionality of the civil death statute, R.I. Gen. Laws § 13-6-1 , were not barred simply because R.I. Const., Art. I, § 5 , the basis for those challenges, is not self-executing. Zab v. R.I. Dep't of Corr., 269 A.3d 741, 2022 R.I. LEXIS 17 (R.I. 2022).

Civil Death Statute.

Civil death statute, R.I. Gen. Laws § 13-6-1 , implicates the rights of every person imprisoned in the Adult Correctional Institutions (ACI) for life, without distinguishing between those sentenced to life with and without the possibility of parole; entirety of statute is unconstitutional. The right infringed upon by the civil death statute is the right to seek redress for any type of injury or complaint, thereby unconstitutionally denying those persons imprisoned in the ACI for life the very right to gain access to the courts. Zab v. R.I. Dep't of Corr., 269 A.3d 741, 2022 R.I. LEXIS 17 (R.I. 2022).

Costs.

The provisions of G.S. 1872, ch. 195, §§ 26 and 27 [§ 9-22-3 and former § 9-22-2 ] which required security for costs from plaintiffs resident in the state, as well as nonresidents, did not violate this section since such a statute operates as a safeguard against vexations prosecution and to require security for costs is not a purchasing of justice. Conley v. Woonsocket Inst. for Sav., 11 R.I. 147 , 1875 R.I. LEXIS 13 (1875).

Dismissal of an action because the plaintiff failed to comply with a court order to give surety for costs under G.S. 1872, ch. 195, § 26 [former § 9-22-2 ] when the plaintiff is too poor to procure surety would be inconsistent with this section, so that in such a case the court should not order the plaintiff to give surety. Spalding v. Bainbridge, 12 R.I. 244 , 1879 R.I. LEXIS 2 (1879).

Where action was dismissed by district court for failure to furnish surety for costs under G. L. 1896, ch. 247, § 4 [§ 9-22-3 ], even though plaintiff filed timely affidavit that she was unable to furnish such surety by reason of poverty, case was remanded with direction to allow plaintiff to satisfy the court that she had a probable cause of action, because dismissal for noncompliance with order for surety for costs in such a case would practically amount to a denial of justice in violation of this section. Lewis v. Smith, 21 R.I. 324 , 43 A. 542, 1899 R.I. LEXIS 60 (1899).

This section does not empower a court to waive the provisions of former § 9-12-12 requiring an indigent person, appealing a decision in an action for possession of tenements to post bond to secure payment of rents due or which may become due pending appeal. Jones v. Aciz, 109 R.I. 612 , 289 A.2d 44, 1972 R.I. LEXIS 1225 (1972).

Fees.

Defendant charged with violation of an ordinance could not assert unconstitutionality of imposition of jury fee against him as ground for a new trial, but proper remedy was to sue the clerk for the amount paid. Hudson v. Geary, 4 R.I. 485 , 1857 R.I. LEXIS 24 (1857).

G.S. 1872, ch. 246, § 12, prescribing entry and continuance fees, was not in violation of this section. Perce v. Hallett, 13 R.I. 363 , 1881 R.I. LEXIS 39 (1881).

Judicial Immunity.

The doctrine of judicial immunity barred an action against a Superior Court judge who allegedly took a bribe where the complaint alleged that at the time of the alleged act the judge was acting in his official capacity. Estate of Sherman v. Almeida, 747 A.2d 470, 2000 R.I. LEXIS 73 (R.I. 2000).

Legislators.

A statute exempting legislators from the process of courts during the legislative session may deny a person’s right to obtain justice promptly and without delay and is therefore in violation of this section. Lemoine v. Martineau, 115 R.I. 233 , 342 A.2d 616, 1975 R.I. LEXIS 1146 (1975).

Negligent Sterilization.

Negligent performance of a sterilization procedure which results in the birth of a child is a tort for which recovery may be allowed. Emerson v. Magendantz, 689 A.2d 409, 1997 R.I. LEXIS 69 (R.I. 1997).

In an action for negligent sterilization resulting in the birth of a child, plaintiffs would be entitled to recover the medical expenses of the ineffective sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. However, no recovery would be allowed for emotional distress arising out of the birth of a healthy child. Emerson v. Magendantz, 689 A.2d 409, 1997 R.I. LEXIS 69 (R.I. 1997).

No Interference With Right.

A special act by the general assembly which conferred jurisdiction upon the court to administer the poor debtor’s oath under R. S. 1857, ch. 198 [§ 10-13-1 et seq.] to a particular tort debtor did not interfere with the creditor’s remedy and was not void under this section. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

Action of mayor in discharging members of board of canvassers and registration for malfeasance, conducting hearing and refusing to reinstate them, was not unconstitutional under this section, since such removal did not constitute any injury to person or property. Molloy v. Collins, 66 R.I. 251 , 18 A.2d 639, 1941 R.I. LEXIS 25 (1941).

The exclusive remedy provision of the Workers’ Compensation Act (§ 28-29-20 ) does not violate the First Amendment right to petition the government for the redress of grievances, the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment, or this section. Boucher v. McGovern, 639 A.2d 1369, 1994 R.I. LEXIS 118 (R.I. 1994).

The legislature’s failure to provide a remedy against state officials who fail to inform crime victims of their rights as required by § 12-28-3 does not violate this section. Bandoni v. State, 715 A.2d 580, 1998 R.I. LEXIS 259 (R.I. 1998).

Where a defendant was represented by counsel of his choice, assisted his counsel in the design of a plea agreement that prevented him from felony charges and, after thorough questioning by the hearing justice, had the opportunity to “sleep on” his decision to enter into the agreement, he could not claim his rights were violated by that agreement. State v. D'Amario, 725 A.2d 276, 1999 R.I. LEXIS 18 (R.I. 1999).

Where a plea agreement included a provision preventing the defendant from appearing pro se for a period of three years, this was a reasonable limitation that did not affect rights so fundamental as to be unwaivable, given the limited resources of the courts and the unreasonable demands on those resources posed by relentless, frivolous filings. State v. D'Amario, 725 A.2d 276, 1999 R.I. LEXIS 18 (R.I. 1999).

Recreational Use Statute.

Recreational Use Statute, R.I. Gen. Laws § 32-6-1 et seq., was not unconstitutional. Summary judgment in favor of a treasurer was proper in a suit brought by plaintiff who was injured by a swarm of bees while walking in a city park. Smiler v. Napolitano, 911 A.2d 1035, 2006 R.I. LEXIS 178 (R.I. 2006).

Restitution for Excessive Taxation.

Where the alternative relief sought by the plaintiffs is that recovery be allowed for the excess tax that was paid because not all classes of property liable to taxation were assessed at a single, uniform percentage of full and fair cash value, but the plaintiffs do not prove what portion of the tax paid constituted an illegal or disproportionate tax, the plaintiffs are not entitled to a rebate of the entire tax, and their prayer for restitution for repayment is denied. Oster v. Tellier, 544 A.2d 128, 1988 R.I. LEXIS 89 (R.I. 1988).

Right to Privacy.

This section is not authority for the recognition of the right to privacy. Henry v. Cherry & Webb, 30 R.I. 13 , 73 A. 97, 1909 R.I. LEXIS 1 (1909).

Rights of Litigants.

The Privileged Communications Act violates Article 1, § 5, of the Rhode Island Constitution by denying the state the right to fully and fairly litigate its criminal prosecution of the defendant. State v. Almonte, 644 A.2d 295, 1994 R.I. LEXIS 228 (R.I. 1994).

A plea agreement that included a provision whereby the defendant could not appear pro se for a period of three years was affirmed with a modification that it not be construed so as to prevent the defendant from defending himself or petitioning a justice to seek relief from the order in an appropriate circumstance. State v. D'Amario, 725 A.2d 276, 1999 R.I. LEXIS 18 (R.I. 1999).

Rights of Prisoners.

The right to call witnesses, like other due process rights, is circumscribed by the necessary mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

The better course at this time, when prison practices are diverse and somewhat experimental, is to leave matters of confrontation and cross-examination to the sound discretion of the officials of state prisons. La Plante v. Southworth, 484 F. Supp. 115, 1980 U.S. Dist. LEXIS 9904 (D.R.I. 1980).

A healthy adult male prisoner confined in an adult correctional institution has no right under the state or federal constitution to end his life by starvation. Laurie v. Senecal, 666 A.2d 806, 1995 R.I. LEXIS 250 (R.I. 1995).

Statute of Limitations.

Notwithstanding the fact that application of the statute of limitations would deprive the plaintiff of a remedy against the later-added defendants, the statutory limitation on plaintiff’s ability to maintain the action of medical malpractice would not result in an unconstitutional deprivation of plaintiff’s rights, as statutes of limitation are vital to the welfare of society and are favored in law. Young v. Park, 116 R.I. 568 , 359 A.2d 697, 1976 R.I. LEXIS 1308 (1976).

Section 9-1-13(b) , which requires that claims for recovery of damages involving injury-causing products must be commenced within ten years after the date the product was first purchased for use or consumption, is unconstitutional, as it completely denies products-liability claimants of their day in court, notwithstanding the merits of their claims and the direct liability of the potential defendants. If the constitutional guarantee of right of access to the courts is to have any meaning, this statute must be struck down. Kennedy v. Cumberland Eng'g Co., 471 A.2d 195, 1984 R.I. LEXIS 444 (R.I. 1984).

Section 9-1-29 , which requires that claimants who bring actions in tort against constructors of improvements to real property must do so within 10 years of the substantial completion of the improvement, does not violate this section, which guarantees access to the courts. Walsh v. Gowing, 494 A.2d 543, 1985 R.I. LEXIS 540 (R.I. 1985).

Limitation on medical malpractice actions in § 9-1-14.1 places a reasonable limit on the parties’ right to have their claims adjudicated by the courts and does not violate the open courts provision of this section. Dowd v. Rayner, 655 A.2d 679, 1995 R.I. LEXIS 53 (R.I. 1995).

Statutory Notice Requirements.

The notice requirement in § 24-5-14 does not amount to an unconstitutional denial of access to the courts in violation of this provision. This provision should not be interpreted to bar the Legislature from enacting any laws that may limit a party from bringing a claim in Rhode Island courts, and notice requirements that are imposed only on victims of governmental tortfeasors are rationally based and constitutionally valid. Hareld v. Napolitano, 615 A.2d 1015, 1992 R.I. LEXIS 203 (R.I. 1992).

Collateral References.

Contractual jury trial waivers in state civil cases. 42 A.L.R.5th 53.42 A.L.R.5th 53.

§ 6. Search and seizure.

The right of the people to be secure in their persons, papers and possessions, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, but on complaint in writing, upon probable cause, supported by oath or affirmation, and describing as nearly as may be, the place to be searched and the persons or things to be seized.

Cross References.

Federal guaranty against unwarranted search and seizure, U.S. Const., Amend. IV.

Inadmissibility of evidence illegally seized, § 9-19-25 .

Search warrants, § 12-5-1 et seq.

Law Reviews.

Survey Section: Constitutional Law, see 3 R.W.U.L. Rev. 415 (1998).

Survey Section: Criminal Procedure, see 3 R.W.U.L. Rev. 455 (1998).

2004 Survey of Rhode Island Law: Case: Criminal Law, see 10 Roger Williams U. L. Rev. 881 (2005).

Comparative Provisions.

Search and seizure:

Conn. 1965 Const., art. First, § 2.

Mass. Const. Pt. 1, Art. 14.

NOTES TO DECISIONS

Arrests, Detentions, and Stops.
— Arrest or Detention.

The legislature in the exercise of its broad police power can provide for a distinction between “detention” and “arrest”; and a period of detention reasonably limited, unaccompanied by unreasonable or unnecessary restraint and based upon circumstances reasonably suggestive of criminal involvement is lawfully distinguished from an arrest by the legislature, creating no deprivation of liberty, due process, right to bail, speedy trial, representation by counsel and habeas corpus as guaranteed by the constitution. Kavanagh v. Stenhouse, 93 R.I. 252 , 174 A.2d 560, 1961 R.I. LEXIS 102 (1961).

In attempting to ascertain whether a person was arrested at a given time, the court looks to several factors, including the following: The extent to which the person’s freedom of movement has been curtailed and the degree of force used by the police, the belief of a reasonable innocent person in the same circumstances, and whether the person had the option of not going with the police. State v. Bailey, 417 A.2d 915, 1980 R.I. LEXIS 1720 (R.I. 1980).

Defendant’s liberty was not so curtailed as to constitute an arrest where, after receiving a telephone request from police, he went to a police station for questioning, was not told that he was under arrest or that he was not free to go, and chose to remain at the station and answer questions. State v. Ferola, 518 A.2d 1339, 1986 R.I. LEXIS 561 (R.I. 1986).

Consent to enter one’s home to make a routine felony arrest cannot be deemed free or voluntary unless the person said to be consenting is aware of the purpose for which the police seeks to enter. State v. Bailey, 417 A.2d 915, 1980 R.I. LEXIS 1720 (R.I. 1980).

— Investigatory Stops.

Investigatory seizures, such as the taking of a person to police headquarters, have been held to be arrests for constitutional purposes and consequently require for their legality the existence of probable cause. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Police do not need probable cause to stop a suspect for questioning if unusual or suspicious activity leads an officer to conclude, in light of his experience, that the individual may be involved in criminal activity. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

— Probable Cause.

Where arresting officers observed no overt acts but acted upon mere suspicion in taking defendant to the police station, the officers at that time were without any grounds of probable cause that a felony had been committed or that defendant was committing one. The quantum of information which constitutes probable cause — evidence which would “warrant a man of reasonable caution in the belief” that a felony has been committed — must be measured by the facts of the particular case. State v. Dufour, 99 R.I. 120 , 206 A.2d 82, 1965 R.I. LEXIS 405 (1965).

Section 12-7-3(a) authorizing a warrantless arrest on reasonable grounds that a misdemeanor was committed meets the requirement of probable cause and was not in violation of this amendment. State v. Haigh, 112 R.I. 740 , 315 A.2d 431, 1974 R.I. LEXIS 1499 (1974).

The legality of an arrest is to be determined by the existence of probable cause at the time of the arrest and not by what subsequent events may disclose. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

The crucial issue is whether at the moment of the arrest the facts and circumstances within the police officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent person’s believing that the arrestee had committed or was committing an offense. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

While a reasonable suspicion might justify a brief investigatory stop of an individual to determine his identity or momentarily to maintain the status quo, probable cause remains a prerequisite to an arrest. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Before an officer can make a valid arrest or conduct a search, he must possess sufficient probable cause. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police do know that a crime has been committed. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Establishing probable cause to make an arrest does not require the same degree of proof needed to determine guilt. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

Probable cause to arrest depends upon whether, at the moment the arrest was made the facts and circumstances within the arresting officers’ knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

The probable-cause inquiry may focus on the collective knowledge of the police department and is not limited to what the arresting officer knew. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

Whether information an arresting officer receives through police channels can serve as the basis for a warrantless arrest depends in part on whether the information is reasonably trustworthy. State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

An officer has probable cause to make an arrest when he personally knows or reliably has been informed of facts sufficient to justify a person of reasonable caution to believe not only that a crime has been committed but also that the person to be arrested has committed the crime. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

When an arrest is made without a warrant, the standard for measuring probable cause must be at least as stringent as when a warrant is obtained. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

The “mosaic of facts and circumstances” on which the arresting officer relies in arresting a defendant may reflect the collective knowledge of the police department, as long as the arresting officer relies on that knowledge. State v. Brennan, 526 A.2d 483, 1987 R.I. LEXIS 507 (R.I. 1987).

Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis; an arrest is not fatally pretextual merely because the police officers have a dual motive for making an arrest as long as probable cause exists sufficient to justify the original stop or search. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

Existence of probable cause to arrest without a warrant depends on whether, under the totality of the circumstances, the arresting officer possesses sufficient trustworthy facts and information to warrant a prudent officer in believing that the suspect had committed or was committing an offense; the probable-cause inquiry should focus on the arresting officer’s general knowledge and experience, as well as information received by the arresting officer through official channels and via the collective knowledge of the police department. State v. Ortiz, 824 A.2d 473, 2003 R.I. LEXIS 160 (R.I. 2003).

Based on experience in narcotics, a surveillance detective determined that a suspected drug transaction had taken place between defendant and a buyer. He seized a bag suspected to be cocaine, and then relayed the information via police radio to an arresting detective who was told the location of defendant and a description of his vehicle. When the arresting officer responded to the call within minutes of the suspected drug deal, defendant’s car was still parked in the exact spot the first detective had described. The information the arresting officer received through official channels had the requisite probable cause to arrest defendant, thus, the arrest was lawful; accordingly, defendant’s extemporaneous statements were not fruits of a poisonous tree, and defendant’s motion to suppress his statements was properly denied. State v. Castro, 891 A.2d 848, 2006 R.I. LEXIS 17 (R.I. 2006).

Where an informant told police that defendant admitted killing the victim, and told them a detail about the murder that had not been released publicly, her information about defendant, coupled with his own statements and actions, furnished probable cause to arrest him without a warrant; therefore, his confession and evidence seized by police were admissible. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

— Reasonable Suspicion.

Conduct reported by a private security guard, the observation of police officers that two motor vehicles were operating without lights, and the conduct of the drivers of the motor vehicles, all taken together, provide a reasonable articulable suspicion justifying detention of the vehicles. State v. Nunez, 588 A.2d 124, 1991 R.I. LEXIS 44 (R.I. 1991).

— Transportation Following Arrest.

When a defendant in custody suspected of driving under the influence of alcohol was taken to a neighboring town, outside of the arresting officers’ jurisdiction, for breathalyzer testing, his detention beyond the borders of the arresting officers’ jurisdiction was not an unlawful arrest in violation of U.S. Const. amend. IV or Rhode Island Const. art. I, § 6, because defendant was already in custody and the officers were acting in accordance with their duty to gather and preserve evidence for use at trial. State ex rel. Town of Portsmouth v. Hagan, 819 A.2d 1256, 2003 R.I. LEXIS 80 (R.I. 2003).

Arrest Warrants.
— Impartial Issuer.

Where defendant pleaded not guilty and was released on his own recognizance, he cannot later attack a warrant issued by a justice of the peace on complaint of the chief of police on the ground that the justice is also counsel for the chief of police and therefore not an impartial magistrate. State v. Winsor, 98 R.I. 447 , 204 A.2d 427, 1964 R.I. LEXIS 192 (1964).

— Probable Cause.

Where the complainant is the officer in charge of the bureau of prosecution in the police department, his testimony as to the source of his knowledge did not vitiate the complaint, and such knowledge, so acquired, constituted probable cause. State v. Diggins, 92 R.I. 341 , 168 A.2d 469, 1961 R.I. LEXIS 37 (1961).

The state’s failure to prove that the officer who obtained and registered an arrest warrant on a computer information bank had the requisite probable cause to issue it, rendered the resulting arrest on this outstanding but unavailable warrant illegal. State v. Taylor, 621 A.2d 1252, 1993 R.I. LEXIS 82 (R.I. 1993).

Construction With Other Laws.

Where admission of evidence is not a violation of this section, § 9-19-25 is not violated. State v. Davis, 105 R.I. 247 , 251 A.2d 394, 1969 R.I. LEXIS 746 (1969).

This section has the same effect as the fourth amendment of the United States Constitution.State v. Davis, 105 R.I. 247 , 251 A.2d 394, 1969 R.I. LEXIS 746 (1969); State v. Berker, 120 R.I. 849 , 391 A.2d 107, 1978 R.I. LEXIS 733 (1978); State v. Belcourt, 425 A.2d 1224, 1981 R.I. LEXIS 1041 (R.I.), cert. denied, 454 U.S. 842, 102 S. Ct. 154, 70 L. Ed. 2d 127, 1981 U.S. LEXIS 3400 (1981).

The Supreme Court has the power and the right to provide the citizens of this state with stricter safeguards against governmental intrusions, under this section, than are provided generally under the fourth amendment. However, in most contexts the fourth amendment provides ample protection against unreasonable searches and seizures. Duquette v. Godbout, 471 A.2d 1359, 1984 R.I. LEXIS 462 (R.I. 1984).

Section 9-19-25 does nothing more than implement the language of this section. Because that language is identical to that of the fourth amendment, the Supreme Court is not required to afford a defendant greater rights than those he is afforded under the fourth amendment. State v. Mattatall, 603 A.2d 1098, 1992 R.I. LEXIS 32 (R.I. 1991), cert. denied, 506 U.S. 838, 113 S. Ct. 117, 121 L. Ed. 2d 74, 1992 U.S. LEXIS 5879 (1992).

Exclusionary Rule.

Rule of State v. Olynik, 83 R.I. 31 , 113 A.2d 123 (1955), which declared that this section did not prohibit, either in express language or by necessary implication, the admission of relevant and material evidence obtained in an illegal search and seizure, applied to trial which occurred prior to enactment of P.L. 1955, ch. 3590 [§ 9-19-25 ] prohibiting the admission of such evidence. State v. Hillman, 84 R.I. 396 , 125 A.2d 94, 1956 R.I. LEXIS 88 (1956).

Defendant’s confession was not the fruit of an illegal arrest because the arresting officer had probable cause to arrest defendant through corroboration of a dispatch and suspicious acts of the occupants of the car defendant was in. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

— Tainted Confessions.

Where the defendant’s sudden willingness to incriminate himself was the result of his being confronted with illegally seized evidence indicating his guilt, the confession was obtained by the exploitation of the illegal search and seizure and was therefore inadmissible. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Statements derived from an illegal arrest or search may be admissible if the state can establish that the connection between the unlawful action and the subsequent statement has become so attentuated as to dissipate the taint. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Since the defendant’s confession was the direct result of an illegal arrest and detention during which the defendant’s rights under the law were flagrantly violated, his statement of confession to the crime should have been suppressed. State v. Robinson, 658 A.2d 518, 1995 R.I. LEXIS 148 (R.I. 1995).

When defendant claimed it was error to deny defendant’s motion to suppress defendant’s confession since the confession was the fruit of an illegal arrest, whether defendant’s arrest was based on probable cause, under U.S. Const. amend. IV and R.I. Const. art. I, § 6 was not preserved because defendant said the confession was obtained contrary to R.I. Const. art. I, §§ 10 and 13 and U.S. Const. amends. V and VI. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

“People.”

The term “people” as used in the Constitution is broad and comprehensive, and comprises in most instances all of the inhabitants of the state. State v. Kofines, 33 R.I. 211 , 80 A. 432, 1911 R.I. LEXIS 123 (1911).

Right to Privacy.

The fourth amendment to the Constitution of the United States and this section both protect an individual’s reasonable expectation of privacy. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Removal without a warrant of a wire cord from the smashed front of a car which had been impounded after an accident was not a violation of the owner’s right to privacy. State v. Timms, 505 A.2d 1132, 1986 R.I. LEXIS 416 (R.I. 1986).

Where city employees sued a city and many officials under 42 U.S.C.S. § 1983, alleging violations of their rights under the Fourth Amendment and R.I. Const. art. I, § 6 when a call recording system was, allegedly unbeknownst to them, installed, where municipal defendants argued that no final policymaker for the city made a conscious choice among alternatives to tape all calls going into and out of the public safety complex, and they adequately established that the police chief shut down the recording system as soon as he discovered that it was operational, genuine disputes existed as to the former chief’s role in procuring the recording system; because the municipal defendants conceded that the police chief was the final policymaker, their summary judgment motion was denied. Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Where city employees sued a city and many officials under 42 U.S.C.S. § 1983, alleging violations of their rights under the Fourth Amendment and R.I. Const. art. I, § 6 when a call recording system was, allegedly unbeknownst to them, installed, where a particular defendant argued that statements that he made, which were the only evidence that he played a role in procuring the system, were inadmissible hearsay, his argument failed because the statements were admissible as an admission under Fed. R. Evid. 801(d)(2)(A). Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Where city employees sued a city and many officials under 42 U.S.C.S. § 1983, alleging violations of their rights under the Fourth Amendment and R.I. Const. art. I, § 6 when a call recording system was, allegedly unbeknownst to them, installed, where a particular defendant sought to cast himself as a supervisor, unaware of his subordinates’ decision to increase the scope of recording, his argument failed on summary judgment because plaintiffs established at least a factual question as to whether the defendant’s own actions, irrespective of any supervisory role that he might have played, directly caused the deprivation of the constitutional rights. There was sufficient evidence to create a genuine issue of material fact that the defendant’s procurement of the system was done with the knowledge that it would record all incoming and outgoing conversations. Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Where city employees sued the city and many officials under 42 U.S.C.S. § 1983 after defendants installed a call recording system at a public safety complex, as there was no indication that they had notice that their calls were being recorded, it could not be said that their asserted expectation of privacy under the Fourth Amendment and R.I. Const. art. I, § 6 was objectively unreasonable. Walden v. City of Providence, 495 F. Supp. 2d 245, 2007 U.S. Dist. LEXIS 49194 (D.R.I. 2007).

Defendant, whom an officer saw masturbating while in a van parked near a school, had no expectation of privacy as to his behavior while occupying a motor vehicle on a public highway. State v. Pitts, 960 A.2d 240, 2008 R.I. LEXIS 116 (R.I. 2008).

Search and Seizure.
— In General.

It is well established that the state bears the burden of proving that the warrantless search was reasonable under one of the delineated exceptions to the warrant requirement. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

— Abandoned Property.

Although abandoned property may be used for evidentiary purposes, it may not be used if the abandonment results from illegal police activity. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

Where the seizure of defendant was illegal because it was without a warrant and not based upon probable cause or other circumstances that would have validated any type of stop and the unlawful action of the police in seizing the defendant caused him to drop a bag containing marijuana, the dropping of the bag was not a voluntary abandonment but rather forced by the actions of the officers and being procured as a result of an illegal arrest and seizure should have been excluded at trial. State v. Bennett, 430 A.2d 424, 1981 R.I. LEXIS 1161 (R.I. 1981).

— Alcoholic Beverages.

The provisions of P.L. 1886, ch. 596, as amended by P.L. 1887, ch. 634, providing for seizures of liquor, do not violate this provision against unreasonable search and seizure when the seizures are conducted in due form. State v. Fitzpatrick, 16 R.I. 60 , 11 A. 773, 1888 R.I. LEXIS 4 (1888).

In a prosecution for a violation of G.L. 1923, ch. 127, § 8, the evidence was admissible if the liquor in question contained more alcohol than was permissible under the statute and there was no violation of this section since there is no property right in contraband goods. State v. Chester, 46 R.I. 485 , 129 A. 596, 1925 R.I. LEXIS 45 (1925).

Where inspectors from the office of the liquor control administrator were lawfully on premises by authority of §§ 3-2-2 , 3-12-3 and licensees consented to search there was no violation of licensee’s constitutional rights. Kmiec v. Liquor Control Hearing Bd., 87 R.I. 257 , 140 A.2d 133, 1958 R.I. LEXIS 49 (1958).

— Automobiles.

Where search of automobile in which burglar tools were found was reasonably related in time and place to arrest, search without warrant was proper even though defendant may not have been within the physical control of police at the scene when the search was made. State v. Moore, 106 R.I. 92 , 256 A.2d 197, 1969 R.I. LEXIS 599 (1969).

Police actions in towing a defendant’s car to a garage before obtaining a search warrant are reasonable, where the police have probable cause to believe that evidence of criminal activity is concealed in the vehicle and they secure a warrant promptly after impounding the vehicle. State v. Chiellini, 557 A.2d 1195, 1989 R.I. LEXIS 68 (R.I. 1989), overruled, State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

Exigency is no longer a requirement for the automobile exception to the Fourth Amendment. As long as the police have probable cause to believe that an automobile, or a container located therein, holds contraband or evidence of a crime, then police may conduct a warrantless search of the vehicle or container, even if the vehicle has lost its mobility and is in police custody. State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

In light of the Supreme Court’s clarification of the exigency issue, the conflicting interpretations of this provision of the Rhode Island Constitution and the Fourth Amendment to the United States Constitution are eliminated. State v. Werner, 615 A.2d 1010, 1992 R.I. LEXIS 202 (R.I. 1992).

The defendant’s commission of a misdemeanor alone (operation of a unregistered vehicle in violation of § 31-8-2 ) gave the officer probable cause to stop and detain him, and from that point on, any evidence obtained pursuant to the lawful stop, such as the odor of alcohol, slurred speech, and bloodshot eyes, would in effect be in plain view of the arresting officer and would support an arrest for suspicion of driving while under the influence. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

Police had probable cause to justify the seizure of defendant’s vehicle under the automobile exception and thus there was no violation of the Fourth Amendment or this section, and the shell casing and cell phones in the vehicle were admissible. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

Warrantless seizure of defendant’s vehicle did not violate her constitutional rights, and the trial justice did not err in denying her motion to suppress the evidence seized from the vehicle, because there was no error in the trial justice’s reliance on the collective-knowledge doctrine; the trial justice reasonably inferred from a detective’s testimony that police officers received a request to hold the vehicle to prevent disturbance of evidence relating to the ongoing criminal investigation. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

Warrantless seizure of defendant’s vehicle did not violate her constitutional rights, and the trial justice did not err in denying her motion to suppress the evidence seized from the vehicle, because the police department impounded the vehicle at the request of another police department for safekeeping after defendant’s arrest; officers secured defendant’s car in a police tow yard until the departments obtained a search warrant, and they properly held it until they obtained a warrant. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

— — Motor Vehicle Registrations.

Since motor vehicle registration information is entirely within the control and custody of the state through the Registry of Motor Vehicles, the public at large and therefore this defendant cannot have a expectation of privacy of that information from searches on the part of the state; thus, the police officers did not conduct an invalid search by running a computer check of the vehicle license plates. State v. Bjerke, 697 A.2d 1069, 1997 R.I. LEXIS 221 (R.I. 1997).

— — Passengers.

There is no requirement that an officer must have a reasonable belief or a valid reason to suspect that a person is armed and dangerous before he or she can order the person out of a lawfully stopped vehicle. Therefore, when a vehicle is lawfully stopped, no constitutional rights are violated by the officer’s ordering the defendant, a passenger, to leave the vehicle. State v. Collodo, 661 A.2d 62, 1995 R.I. LEXIS 182 (R.I. 1995).

A particularized suspicion was justifiably raised that the defendant was engaged in or was about to engage in wrongdoing since the defendant, a passenger in a speeding vehicle in which the driver was unable to produce either a driver’s license or the vehicle’s registration, was fidgeting, looking away, and since after exiting the vehicle the defendant shied away from the officer on one side. Although furtive gestures alone are not sufficient to justify a Terry type of search, these facts as available to the officer at the moment of the search were sufficiently specific and articulable to justify a pat down under Terry . State v. Collodo, 661 A.2d 62, 1995 R.I. LEXIS 182 (R.I. 1995).

Where defendant made furtive movements downward as a rear-seat passenger in a car in which cocaine had been found in plain view during a traffic stop, his conduct warranted an officer to become reasonably suspicious and place defendant in a cruiser; cocaine was also found after defendant was released from the cruiser. Because the seizure was constitutional, a trial court did not err in denying defendant’s motion to suppress the cocaine found in the cruiser. State v. Foster, 842 A.2d 1047, 2004 R.I. LEXIS 10 (R.I. 2004).

— — Roadblocks for DUI Violations.

Roadblocks or checkpoints, established to apprehend persons violating the law against driving under the influence of intoxicating beverages or drugs, operate without probable cause or reasonable suspicion and violate the Rhode Island Constitution. Pimental v. Department of Transp., 561 A.2d 1348, 1989 R.I. LEXIS 139 (R.I. 1989).

Where a defendant under arrest, when asked for the keys to his car, which was in police custody, tossed the keys to the officers, there was present a situation which suggested the probability that such act was a submission to authority rather than an intelligent waiver of his constitutional protection against search and seizure, but a finding of consent, freely and intelligently given, was not precluded and was a question to be determined by the trial justice. State v. Leavitt, 103 R.I. 273 , 237 A.2d 309, 1968 R.I. LEXIS 794 , cert. denied, 393 U.S. 881, 89 S. Ct. 185, 21 L. Ed. 2d 155, 1968 U.S. LEXIS 968 (1968).

Where defendant admitted that no one threatened him or applied any form of physical stress upon him, defendant did not provide the court with any articulable basis in support of his contention that he could not have refused consent, and he first gave oral consent and then later written consent, defendant was not coerced and his motion to suppress tangible evidence was properly denied. State v. Texter, 923 A.2d 568, 2007 R.I. LEXIS 64 (R.I. 2007).

Search of the apartment of defendant’s girlfriend was proper under the Fourth Amendment, U.S. Const. IV, and R.I. Const. art. I, § 6 as: (1) an officer viewed several items of potential evidentiary value in the girlfriend’s bedroom while the officer was in the apartment under exigent circumstances; (2) the girlfriend voluntarily consented; (3) the girlfriend’s rationale for providing consent did not preclude a determination that her consent was given voluntarily; and (4) the girlfriend was strong-willed, desired to cooperate with the police, and was given a clear option. State v. Shelton, 990 A.2d 191, 2010 R.I. LEXIS 35 (R.I. 2010).

— Crime Scene.

Although many courts have recognized the right of the police to conduct a quick and cursory check of a residence when they have reasonable grounds to believe there are other persons present who might present a security risk, the purpose of this type of search is to check for persons, not things; and the search is justified only when it is necessary to allow the police to ascertain the presence of anyone who might threaten their safety or destroy evidence. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

When police respond to the scene of a homicide, they are justified in making an immediate warrantless search of the vicinity to check if other victims or the killer is present and, during the course of this type of emergency search, police may legally seize any evidence in plain view. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

— Exigent Circumstances.

When evidence is likely to be lost, destroyed, or removed during the time required to obtain a warrant and when, because of the circumstances, it is difficult to secure a warrant, a warrantless entry and search may be justified. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

The existence of exigent-circumstances exception to the warrant requirement encompasses the situation in which police believe a person within requires immediate assistance or other victims or intruders may still be present. State v. Jennings, 461 A.2d 361, 1983 R.I. LEXIS 957 (R.I. 1983).

Exigent circumstances justified a warrantless entry into the apartment of defendant’s girlfriend and the warrantless arrest of defendant therein, where police had information from a credible eyewitness that defendant had shot his brother and the warrantless intrusion was necessary to preserve life or avoid serious injury. State v. Gonsalves, 553 A.2d 1073, 1989 R.I. LEXIS 18 (R.I. 1989).

A burning building clearly creates an exigency that justifies a warrantless entry by fire officials to fight a blaze. Once firefighters enter a building for this purpose, they may seize evidence of arson that is in plain view. An immediate threat that the blaze might rekindle also presents an exigency that justifies a warrrantless and nonconsensual postfire investigation. State v. Hoffman, 567 A.2d 1134, 1990 R.I. LEXIS 1 (R.I. 1990).

Exigency created by an explosion and fire was still present when an official investigation began, where, even though rekindling did not appear to be imminent, legitimate concerns regarding additional structural collapse did persist at the time a fire inspector began his search of the premises. State v. Hoffman, 567 A.2d 1134, 1990 R.I. LEXIS 1 (R.I. 1990).

— Inspections.

Provision of P.L. 1903, ch. 1100, § 4 [former § 5-27-27], authorizing any member of the board to enter barbershops for the purpose of “ascertaining the sanitary condition” does not violate this section, in that the entry authorized is without a warrant, since the entry is for the purpose of inspection only and not for the purpose of seizure. State v. Armeno, 29 R.I. 431 , 72 A. 216, 1909 R.I. LEXIS 33 (1909).

— Levy on Taxpayer’s Property.

Where internal revenue agents seized property under an invalid lien levy for unpaid taxes, the execution involved nondiscretionary, ministerial action and the agents and the government had no immunity from suit for damages for a seizure that was tortious or violative of the owner’s rights under this section. Nickerson v. Gilbert, 66 F.R.D. 593, 1975 U.S. Dist. LEXIS 12668 (D.R.I. 1975).

— Pat Down.

Officers’ observations of a van left running in a high-crime neighborhood, the missing license plates, defendant reaching down and stuffing something into her jacket, and defendant’s nervousness, paired with a pragmatic analysis of the facts known at the time, provided sufficient reasonable suspicion for the officers to suspect defendant of possible criminal conduct and to perform a Terry-type frisk for weapons to ensure officer safety. State v. Taveras, 39 A.3d 638, 2012 R.I. LEXIS 28 (R.I.), cert. denied, 568 U.S. 826, 133 S. Ct. 249, 184 L. Ed. 2d 44, 2012 U.S. LEXIS 6952 (2012).

— Physical or Mental Examinations.

The taking of blood, breath, or urine samples from a suspect is a search and seizure under the Fourth Amendment and this section. State v. Locke, 418 A.2d 843, 1980 R.I. LEXIS 1804 (R.I. 1980).

The administration of a breathalyzer test does not amount to an unreasonable search and seizure under the federal or state constitutions. State v. Roberts, 420 A.2d 837, 1980 R.I. LEXIS 1836 (R.I. 1980).

— Plain View Doctrine.

To sustain a warrantless search under the plain-view doctrine, the seizing officer must have lawfully been in the position which permitted the object to fall within his view, the discovery of the object must be made inadvertently; and there must be a nexus between the item to be seized and criminal behavior. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

Where, while conducting a general search, police officers, relying on the plain-view doctrine, seized a magazine found on the defendant’s nightstand, which included an article describing the inside world of the drug trade and the challenges of stopping drug trafficking, as well as a police scanner and radio guide, in light of the accusation that the defendant was involved in drug trafficking, it was reasonable for the officers to suspect that these otherwise unincriminating objects were assisting the defendant in avoiding police detection while carrying on illicit trades. Thus, the items were properly seized under the plain-view doctrine. State v. Pratt, 641 A.2d 732, 1994 R.I. LEXIS 161 (R.I. 1994).

— Regulated Businesses.

Sections 23-23-5(7) and 42-17.1-2(t) (now (20)) do not violate the fourth amendment to the U.S. Const. and R.I. Const., art. 1, § 6 , because under New York v. Burger , 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987), a warrantless search of a pervasively regulated business is reasonable if there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made, the warrantless inspections are necessary to further the regulatory scheme, and the statute’s inspection program, in terms of the certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant. Keeney v. Vinagro, 656 A.2d 973, 1995 R.I. LEXIS 101 (R.I. 1995).

— Search Incident to Arrest.

Once an arrestee is under police control, the permissible scope of a search incident to an arrest narrows. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

The right of the police to search areas into which the arrestee may be expected to move, as well as the search of articles to be handed to the arrestee, is well settled when the movement or other acts are performed at the request of the arrestee. In that situation a limited search for weapons is reasonable. State v. Robalewski, 418 A.2d 817, 1980 R.I. LEXIS 1717 (R.I. 1980).

— Students.

Warrantless search of sixth-grade student and classmates in an effort to locate a knife that was missing from the school cafeteria was reasonable under the circumstances. Brousseau v. Town of Westerly, 11 F. Supp. 2d 177, 1998 U.S. Dist. LEXIS 8715 (D.R.I. 1998).

— Text Messages.

Defendant did not have a reasonable expectation of privacy in the text messages exchanged between himself and his girlfriend contained in her cell phone, and therefore he had no standing to challenge the search and seizure of her phone, because he had no control over who could view or access the text messages having already sent the incriminating text messages. The phone was used exclusively by the girlfriend and defendant exhibited no dominion or control over it, nor did he attempt to exclude others from accessing the phone. State v. Patino, 93 A.3d 40, 2014 R.I. LEXIS 99 (R.I. 2014), cert. denied, 574 U.S. 1081, 135 S. Ct. 947, 190 L. Ed. 2d 842, 2015 U.S. LEXIS 177 (2015).

— Violation Not Found.

Search by police officers of prisoner’s cell relying upon information from fellow inmates that the defendant was the murderer was based upon reasonable or probable cause and was therefore valid without necessity of a warrant. State v. Wilmot, 461 A.2d 401, 1983 R.I. LEXIS 969 (R.I. 1983).

Search of defendant’s home did not violate the Fourth Amendment to the United States Constitution or R.I. Const. art. I, § 6 where the totality of the circumstances justified forced entry by the police and at no time during their initial search did the officers conduct an exploratory search. State v. Portes, 840 A.2d 1131, 2004 R.I. LEXIS 13 (R.I. 2004).

At no time during a search and subsequent arrest of defendant did the police violate defendant’s Fourth Amendment rights as they had probable cause to believe that defendant was involved in the breaking and entering in progress where defendant was outside the chopped up door with a hatchet; thus, the drugs which were subsequently found in defendant’s pockets were admissible. State v. Dustin, 874 A.2d 244, 2005 R.I. LEXIS 110 (R.I. 2005).

Denial of defendant’s motion to suppress the statement which defendant made at a police station was appropriate because the statement was not the fruit of an illegal seizure as defendant’s freedom was not—prior to the point at which police informed defendant that defendant was a suspect in the death of defendant’s infant child—so curtailed that a reasonable innocent person would not have felt free to leave; rather, defendant agreed to go to the police station to give statements voluntarily and did so after being informed of defendant’s rights. State v. Jimenez, 276 A.3d 1258, 2022 R.I. LEXIS 66 (R.I. 2022).

— Weapons.

There was no seizure or search within the meaning of this section where police officer walked toward and spoke to the defendant, requesting him to unpocket his right hand, and the defendant, after initially refusing, in the end did unpocket his hand, which held a knife in violation of § 11-47-42 . State v. Johnson, 414 A.2d 477, 1980 R.I. LEXIS 1636 (R.I. 1980).

— Wiretaps.

Evidence obtained by a series of wiretaps based upon an order that violated the express language of the statute regarding termination of the order was suppressed as a violation of the safeguard of one’s privacy from unwarranted and unauthorized intrusions. State v. Maloof, 114 R.I. 380 , 333 A.2d 676, 1975 R.I. LEXIS 1426 (1975).

Participant monitoring of phone conversations does not entail a significant invasion of privacy so as to violate this section. State v. Ahmadjian, 438 A.2d 1070, 1981 R.I. LEXIS 1423 (R.I. 1981).

Search Warrants.
— Affidavits.

The affidavit was sufficient to establish probable cause to issue a search warrant since the affidavit revealed information related to police by a reliable source and a concerned citizen, both of whom were known to the police, and the reports of both informants were supported by the independent corroborative observations of the police. State v. King, 693 A.2d 658, 1997 R.I. LEXIS 123 (R.I. 1997).

Franks hearing was not necessary because the alleged deficiencies in the affidavit supporting the arrest warrant were not material. State v. Pona, 926 A.2d 592, 2007 R.I. LEXIS 93 (R.I. 2007).

When considering whether facts alleged in a search warrant affidavit established probable cause to issue a warrant, the fact that the affidavit omitted that another person, other than defendant, lived in the house to be searched was not significant because (1) the house was a single-family home, and (2) nothing showed defendant did not control the entire house. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

When considering whether facts alleged in a search warrant affidavit established probable cause to issue a warrant, the fact that the affidavit alleged that cocaine residue was found on only one of twelve cut baggies found in defendant’s trash, which was consistent with personal use rather than distribution, was insignificant because the affidavit sought the issuance of a warrant to search for the presence of illegal narcotics, as well as any indicia of drug distribution. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Errors in affidavits supporting warrants to search defendant’s phone records and apartment required no suppression because the affidavits sufficed without the errors. State v. Tejeda, 171 A.3d 983, 2017 R.I. LEXIS 106 (R.I. 2017).

In a child pornography case in which the named subscriber of an IP address did not reside at the address listed in the warrant, nothing within the affidavit rose to the level of a knowing or intelligent false statement or one made with reckless disregard for the truth as the police were able to make a direct connection between the device using that IP address, the physical address listed in the warrant, and the downloaded child pornography; and, even if the name of the subscriber listed in the warrant affidavit was disregarded, there was probable cause for the search warrant, considering the information regarding the IP address and the detective’s surveillance of the physical address. Thus, the family court magistrate properly denied the respondent juvenile’s request for a Franks hearing. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

There was no error in denying defendant’s motion to suppress evidence obtained in her apartment because under the totality of the circumstances set forth in the search warrant affidavit, there was a substantial basis for concluding a search would yield evidence relating to a homicide; the affidavit recited facts that provided a basis for believing the apartment was the scene of the homicide and provided reliable information that defendant had an antagonistic relationship with the victim. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

Given the totality of circumstances set forth within the four corners of the affidavit, the trial justice did not clearly err in denying defendant’s request for a Franks hearing; because the misstatements were sloppy and made in a potentially reckless manner, it was appropriate for the trial justice to exclude the information about a detective’s experience and training when considering whether there was a sufficient basis for finding probable cause in the remaining portions of the affidavit. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

— Chemical Analysis.

Where state controlled evidence for one week before a chemical analysis was done on it, and where state exercised complete and exclusive dominion over the evidence, the failure of the state to procure a search warrant prior to the chemical analysis was unconstitutional, and the admission at trial of the results of the chemical analysis was error. State v. Von Bulow, 475 A.2d 995, 1984 R.I. LEXIS 491 , 1984 R.I. LEXIS 510 (R.I.), cert. denied, 469 U.S. 875, 105 S. Ct. 233, 83 L. Ed. 2d 162, 1984 U.S. LEXIS 3818 (1984).

— Confidential Informants.

The trial justice correctly refused to reveal a confidential informant’s identity, since the informant did not participate in any aspect of the crime and disclosure of his identity was unnecessary to issue a search warrant. State v. Riccio, 551 A.2d 1183, 1988 R.I. LEXIS 150 (R.I. 1988).

Defendant’s motion to suppress evidence seized from his residence was properly denied, as a confidential informant’s tip that he was selling drugs from his apartment was corroborated, and this corroborated tip, combined with defendant’s recent sale of cocaine in a controlled buy, satisfied the probable cause requirement to support the search warrant. State v. Cosme, 57 A.3d 295, 2012 R.I. LEXIS 160 (R.I. 2012).

— Descriptions.

It is not necessary for a search warrant to precisely describe the property to be seized since this section recognizes that in some circumstances the nature of the property will not admit of precise description. State v. Snow, 3 R.I. 64 , 1854 R.I. LEXIS 7 (1854).

A warrant to search defendant’s quarters in an old residence that has been subdivided into apartments which described the premises merely as the “multi-storied stone house” at a certain location without designating the particular apartment does not prescribe the premises “as nearly as may be” as required by this section. State v. Costakos, 101 R.I. 692 , 226 A.2d 695, 1967 R.I. LEXIS 822 (1967).

An affidavit was not invalid for failure to particularly describe the premises to be searched, where the allegations in the affidavit amply supported the inference drawn by the issuing justice that the entire dwelling unit and both occupants were involved in the storage of stolen drugs, and the issuing justice could infer on the basis of ordinary experience in the facts of life that a person engaged in the storage of a great quantity of stolen narcotics and related substances would not place it in a portion of a single-family dwelling house without having first taken the precaution of making a confederate of his tenant; in drawing these inferences from the affidavit, the justice was following the principle that affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. State v. Kowal, 423 A.2d 1380, 1980 R.I. LEXIS 1866 (R.I. 1980).

The United States and Rhode Island Constitutions require only that descriptions in search warrants be as particular as the circumstances of each case will permit. State v. Ricci, 472 A.2d 291, 1984 R.I. LEXIS 450 (R.I. 1984).

The warrant in this case was fatally flawed because it authorized the police to conduct a blanket or general search of the entire 12 acre, 18 building, 10 warehouse, 83 separate unit business complex, rented to at least 30 different tenants, and thus the evidence seized must be excluded. State v. Jeremiah, 696 A.2d 1220, 1997 R.I. LEXIS 213 (R.I. 1997).

A warrant describing the property and articles to be searched for as “any and all evidence of breaking and entering of dwellings, and possession of stolen goods, to include, but not limited to, jewelry, coins, collectors’ items, electronic equipment, etc.” was adequate and sufficiently descriptive where the defendant, who had been taken into custody during the afternoon, was likely to be released on bail or recognizance within a short time of his arrest, thus necessitating the request for authorization to execute the warrant during the nighttime. State v. Rose, 748 A.2d 1283, 2000 R.I. LEXIS 86 (R.I. 2000).

Warrant issued to search defendant’s residence did not have to specify a particular location within the residence because (1) there was probable cause to search the whole house, and (2) the place to be searched could be identified by those executing the warrant. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

For purpose of the execution of the search warrant, even though the Unit 2 listed in the warrant did not exist, and a group home was being operated at the physical address listed in the warrant, the warrant described the place to be searched and the items to be seized with sufficient particularity, and the officers were permitted to perform the search on that existing warrant. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

Defendant waived her challenge to the facial validity of a search warrant because her challenge did not present a constitutional issue based on a novel rule of law of which trial counsel could not reasonably have known during the trial proceedings; defendant’s argument that the search warrant lacked particularity fell squarely within the parameters of a United States Supreme Court ruling that a search warrant completely devoid of particularity was facially invalid. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

— Probable Cause.

Affidavit issued on complaint that several persons had visited house briefly and then left was insufficient to show probable cause for the issuance of a search warrant. State v. Butts, 97 R.I. 147 , 196 A.2d 415, 1964 R.I. LEXIS 54 (1964).

Affidavit that affiants have reason to believe that the defendant is conducting a resort for gambling, that they were informed and had investigated that the defendant on a certain date registered a bet, and that they had long had him under surveillance, without setting out reasons for such belief, the source of their information, nor the results of their investigation and surveillance was not a sufficient basis for finding of probable cause for issuance of a search warrant. State v. Le Blanc, 100 R.I. 523 , 217 A.2d 471, 1966 R.I. LEXIS 472 (1966).

Probable cause did not exist, nor was the affidavit proper, where only suspicions without facts were set forth that a bet was accepted by telephone on a number supplied by an informer, and the informer’s credibility, reliability and/or first-hand knowledge was not alleged. State v. Connell, 113 R.I. 605 , 324 A.2d 331, 1974 R.I. LEXIS 1215 (1974).

A search warrant may not be challenged as issued without probable cause merely because one or more of the persons toward whom the probable cause pointed turned out ultimately to be innocent: any contrary rule would require the evidentiary support necessary for probable cause to rise to the level of proof beyond a reasonable doubt. State v. Kowal, 423 A.2d 1380, 1980 R.I. LEXIS 1866 (R.I. 1980).

An affidavit establishes probable cause for the issuance of a search warrant, where the affidavit asserts that a confidential informant had furnished information in the past leading to the arrest and conviction of an individual for a narcotics offense, and the credibility of the informant is supported by an independent police investigation that corroborates the informant’s account. State v. Riccio, 551 A.2d 1183, 1988 R.I. LEXIS 150 (R.I. 1988).

Only the probability, and not a prima facie showing, of criminal activity is required to establish probable cause, and the issuing justice’s determination of probable cause should be paid great deference by reviewing courts. State v. Baldoni, 609 A.2d 219, 1992 R.I. LEXIS 142 (R.I. 1992).

Where the affidavit submitted in support of an apartment search warrant described the defendant’s purchase of approximately 29 pounds of marijuana and the subsequent forfeiture of approximately 26 pounds by an undercover officer to the police department, and where the affidavit further expressed the police department’s belief that the defendant “had given or sold those (missing) three pounds to person or persons unknown”, because the affidavit was devoid of any facts or other evidence to support the conclusion that the defendant had actually sold the marijuana, the issuing magistrate could reasonably conclude that the defendant had not sold or given away the drugs, but in fact still possessed them in his home. State v. Pratt, 641 A.2d 732, 1994 R.I. LEXIS 161 (R.I. 1994).

The issuing magistrate had probable cause to issue a search warrant based on an affidavit referencing a written statement obtained from the defendant’s roommate describing defendant’s behavior when he arrived at their apartment after the charged offense occurred. State v. Correia, 707 A.2d 1245, 1998 R.I. LEXIS 104 (R.I. 1998).

Requisite nexus between contraband described in a search warrant affidavit and the place to be searched need not be based on direct observation of the suspect with the contraband at or near the area to be searched. Rather, it may be found in the type of crime, the nature of the items sought, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide items of the sort sought in the warrant. State v. Byrne, 972 A.2d 633, 2009 R.I. LEXIS 78 (R.I. 2009).

As a reasonable inference could be drawn from the facts alleged in a detective’s affidavit that defendant would take home the easily transportable digital camera he used to take photos beneath a child’s skirt, a warrant to search defendant’s home for cameras was supported by probable cause under U.S. Const. amend. IV and R.I. Const. art. I, § 6 . State v. Byrne, 972 A.2d 633, 2009 R.I. LEXIS 78 (R.I. 2009).

Search warrant affidavit established probable cause to issue a search warrant for defendant’s residence, under the totality-of-the-circumstances test, because the confluence of an anonymous tip, twelve cut plastic baggies from defendant’s trash, cocaine residue on one baggie, defendant’s non-drug-related criminal history, and inferences therefrom showed a “fair probability” that drugs and indicia of drug distribution would be found at the residence. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Totality of the circumstances presented in an affidavit in support of a search warrant allowed the magistrate to reasonably infer that drugs would be found in defendant’s apartment, as the affiant stated that a confidential informant reported the sale of cocaine by a black male from an apartment, and police determined that defendant was that male and lived in that apartment. State v. Cosme, 57 A.3d 295, 2012 R.I. LEXIS 160 (R.I. 2012).

Respondent juvenile’s motion to suppress was properly denied because the warrant was based on probable cause as the warrant application listed the correct IP address that was suspected of involvement with child pornography and the correct physical address linked to that IP address; and the fact that the named subscriber did not reside at the physical address listed in the warrant did not invalidate the warrant. In re Austin B., 208 A.3d 1178, 2019 R.I. LEXIS 85 (R.I. 2019).

— Scope.

In a murder case, police did not exceed the scope of a second warrant in seizing a camera and its contents from defendant’s residence where the camera was metal or hard plastic and was a compact piece of equipment that could have been swung to inflict serious pain, and thus it fell within the language of the warrant. State v. Depina, 245 A.3d 1222, 2021 R.I. LEXIS 12 (R.I. 2021).

— Staleness.

Evidence obtained by search was inadmissible where information in affidavit supporting warrant was 11 months old. State v. Tella, 113 R.I. 303 , 321 A.2d 87, 1974 R.I. LEXIS 1178 (1974).

Two-month-old tip relied on to obtain a warrant to search defendant’s residence was not stale because trash seized from the residence shortly before the warrant was issued refreshed the tip, as evidence found in the trash was directly consistent with the tip. State v. Storey, 8 A.3d 454, 2010 R.I. LEXIS 110 (R.I. 2010).

Standing.

In light of United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980), standing to seek suppression of evidence based on search or seizure is now established by proof of a legitimate expectation of privacy in either the evidence seized or the property searched. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

The owner of a vehicle had standing to seek suppression of evidence obtained from his vehicle. State v. Frazier, 421 A.2d 546, 1980 R.I. LEXIS 1857 (R.I. 1980).

Defendant who had permission to use his father’s automobile whenever needed and presented a history of regular use of the vehicle had standing to challenge a search of the automobile. State v. Milette, 702 A.2d 1165, 1997 R.I. LEXIS 299 (R.I. 1997).

Collateral References.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 A.L.R.5th 1.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor relative. 152 A.L.R. Fed. 475.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s adult relative other than spouse. 160 A.L.R. Fed. 165.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse. 154 A.L.R. Fed. 579.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse (resident or nonresident) — state cases. 65 A.L.R.5th 407.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant — state cases. 68 A.L.R.5th 343.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property — state cases. 61 A.L.R.5th 1.

Allowable use of federal pen register and trap and trace device to trace cell phones and internet use. 15 A.L.R. Fed. 2d 537.

Applicability of “Third-Party Intervention” or “Private Search” Doctrine to Warrantless Search of Home or Other Place of Residence. 24 A.L.R.7th Art. 3 (2017).

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment cocaine cases. 4 A.L.R.6th 599.

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment — Marijuana Cases. 35 A.L.R.6th 497.

Application of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment in murder, homicide or manslaughter prosecution — State cases. 101 A.L.R.6th 331.

Application of collective knowledge doctrine or fellow officer’s rule under Fourth Amendment in prosecution for prostitution, pornography, or other sexually based offense — State cases. 101 A.L.R.6th 299.

Application of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment in prosecution for robbery, burglary, larceny, or other theft offense — State cases. 103 A.L.R.6th 347.

Application of Fourth Amendment to evidence seized in foreign jurisdiction. 3 A.L.R. Fed. 3d Art. 4 (2015).

Application of Leon good faith exception to exclusionary rule where police fail to comply with knock and announce requirement during execution of search warrant. 2 A.L.R.6th 169.

Assessment of Constitutionality of Officer’s Entry into Home To Execute Arrest Warrant Under Payton v. New York Framework — Federal Appellate Cases. 36 A.L.R. Fed. 3d Art. 4 (2018).

Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises. 64 A.L.R.5th 637.

Border Search or Seizure of Traveler’s Laptop Computer, or Other Personal Electronic or Digital Storage Device. 45 A.L.R. Fed. 2d 1.

Civilian participation in execution of search warrant as affecting legality of search. 68 A.L.R.5th 549.

Construction and Application of Consent-Once-Removed Doctrine, Permitting Warrantless Entry Into Residence by Law Enforcement Officers for Purposes of Effectuating Arrest or Search Where Confidential Informant or Undercover Officer Enters with Consent and Observes Criminal Activity or Contraband in Plain View. 50 A.L.R.6th 1.

Construction and application of Supreme Court’s holding in Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 47 A.L.R. Fed. 2d 657 (2009), that police may search vehicle incident to recent occupant’s arrest only if arrestee is within reaching distance of passenger compartment at time of search or it is reasonable to believe vehicle contains evidence of offense — Pretextual traffic offenses and other criminal investigations. 56 A.L.R.6th 1.

Construction and application of Supreme Court’s holding in Florida v. Jardines, that canine sniff on front porch of home constitutes “search” for purposes of Fourth Amendment in subsequent similar factual circumstances. 15 A.L.R.7th Art. 3 (2016).

Constitutionality of secret video surveillance. 91 A.L.R.5th 585.

Effect of retroactive consent on legality of otherwise unlawful search and seizure. 76 A.L.R.5th 563.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 A.L.R.5th 463.

Expectation of privacy in internet communications. 92 A.L.R.5th 15.

Expectation of privacy in text transmissions to or from pager, cellular telephone, or other wireless personal communications device. 25 A.L.R.6th 201.

Expectation of Right to Privacy in Rental Vehicles Under Fourth Amendment. 27 A.L.R. Fed. 3d Art. 3 (2018).

Federal and state constitutions as protecting prison visitor against unreasonable searches and seizures. 85 A.L.R.5th 261.

Hospital as within constitutional provision forbidding unreasonable searches and seizures. 28 A.L.R.6th 245.

Necessity of Rendering Medical Assistance as Circumstance Permitting Warrantless Entry or Search of Building or Premises. 58 A.L.R.6th 499.

Observation through binoculars as constituting unreasonable search. 59 A.L.R.5th 615.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 A.L.R.5th 397.

Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.). 78 A.L.R.5th 309.

Permissibility Under Fourth Amendment of Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate Matters Not Related to Offense — State Cases Post Rodriguez v. U.S. 40 A.L.R.7th Art. 5 (2019).

Permissibility Under Fourth Amendment of Detention of Motorist by Police, Following Lawful Stop for Traffic Offense, to Investigate with Canine Matters Not Related to Offense — Federal Cases Post Rodriguez v. U.S. 39 A.L.R. Fed. 3d Art. 6 (2019).

Prisoner’s rights as to search and seizure under state law or Constitution — Post-Hudson cases. 14 A.L.R.5th 913.

Propriety of Execution of No-Knock Search Warrant. 59 A.L.R.6th 311.

Propriety of execution of search warrant at nighttime. 41 A.L.R.5th 171.

Propriety of stop and search by law enforcement officers based solely on drug courier profile. 37 A.L.R.5th 1.

Racial profiling by law enforcement officers in connection with traffic stops as infringement of federal constitutional rights or federal civil rights statutes. 91 A.L.R. Fed. 2d 1.

Reverse-Franks claims, where police arguably omit facts from search or arrest warrant affidavit material to finding of probable cause with reckless disregard for the truth — Underlying sexual offenses. 74 A.L.R.6th 69.

Search and seizure of bank records pertaining to customer as violation of customer’s rights under state law. 33 A.L.R.5th 453.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 A.L.R.4th 536.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle. 62 A.L.R.5th 1.

Search and seizure: reasonable expectation of privacy in driveways. 60 A.L.R.5th 1.

Search and seizure: reasonable expectation of privacy in tent or campsite. 66 A.L.R.5th 373.

Search and seizure: what constitutes abandonment of real property within rule that search and seizure of abandoned property is not unreasonable. 99 A.L.R.6th 397.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 A.L.R.5th 165.

State constitutional requirements as to exclusion of evidence unlawfully seized — post-Leon cases. 19 A.L.R.5th 470.

Sufficiency of information provided by anonymous informant to provide probable cause for federal search warrant — Cases decided after Illinois v. Gates , 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). 178 A.L.R. Fed. 487.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past. Cases decided after Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). 196 A.L.R. Fed. 1.

Sufficiency of Showing to Support No-Knock Search Warrant — Cases Decided After Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997). 50 A.L.R.6th 455.

Timeliness of execution of search warrant. 27 A.L.R.6th 491.

Unconstitutional Search or Seizure as Warranting Suppression of Evidence in Removal Proceeding. 40 A.L.R. Fed. 2d 489.

Use of Medical Marijuana as Defense to Driving Offense or Challenge to Search of Motor Vehicle and Occupants. 43 A.L.R.7th Art. 4 (2019).

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of Fourth Amendment. 150 A.L.R. Fed. 399.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions. 117 A.L.R.5th 407.

Validity and Application of Anticipatory Search Warrant — Federal Cases. 31 A.L.R. Fed. 2d 123.

Validity of anticipatory search warrants — state cases. 67 A.L.R.5th 361.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 A.L.R.5th 557.

Validity of routine roadblocks by state or local police for purpose of discovery of driver’s license, registration, and safety violations. 116 A.L.R.5th 479.

Validity of search and reasonable expectation of privacy as affected by no trespassing or similar signage. 45 A.L.R.6th 643.

Validity of search and seizure warrant, and execution thereof, to disclose records and electronic communications relating to specific e-mail address. 15 A.L.R.7th Art. 5 (2016).

Validity of search conducted pursuant to parole warrant. 123 A.L.R.5th 221.

Validity of Search of Cruise Ship Cabin. 43 A.L.R.6th 355.

Validity of search or seizure of computer, computer disk, or computer peripheral equipment. 84 A.L.R.5th 1.

Validity of use of cellular telephone or tower to track prospective, real time, or historical position of possessor of phone under Fourth Amendment. 92 A.L.R. Fed. 2d 1.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated — Cases decided since Colonnade Catering Corp. v. U.S. , 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970). 182 A.L.R. Fed. 467.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics. 115 A.L.R.5th 477.

Validity of warrantless search of motor vehicle based on odor of marijuana — Federal cases. 188 A.L.R. Fed. 487.

Validity of warrantless search of motor vehicle based on odor of marijuana — State cases. 114 A.L.R.5th 173.

Validity of warrantless search of motor vehicle driver based on odor of marijuana — State cases. 123 A.L.R.5th 179.

Validity of warrantless search of other than motor vehicle or occupant of motor vehicle based on odor of marijuana — Federal cases. 191 A.L.R. Fed. 303.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana — State cases. 122 A.L.R.5th 439.

Validity of warrantless search under extended border doctrine. 102 A.L.R. Fed. 269.

Validity of warrantless search of motor vehicle occupant based on odor of marijuana — Federal cases. 192 A.L.R. Fed. 391.

Validity of warrantless search of motor vehicle passenger based on odor of marijuana. 1 A.L.R.6th 371.

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 A.L.R.5th 1.

When are facts offered in support of search warrant for evidence of federal drug offense so untimely as to be stale. 13 A.L.R. Fed. 2d 1.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale. 187 A.L.R. Fed. 415.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale — State cases. 111 A.L.R.5th 239.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases. 113 A.L.R.5th 517.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance — State cases. 112 A.L.R.5th 429.

When are facts relating to marijuana, provided by police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance — State cases. 114 A.L.R.5th 235.

When is consent voluntarily given so as to justify search conducted on basis of that consent — Supreme Court cases. 148 A.L.R. Fed. 271.

Whether police scan of magnetic strip on credit or debit card violates reasonable expectation of privacy under Fourth Amendment. 5 A.L.R.7th Art. 1 (2015).

§ 7. Requirement of presentment or indictment — Information by attorney-general — Grand juries — Double jeopardy.

Except in cases of impeachment, or in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger, no person shall be held to answer for any offense which is punishable by death or by imprisonment for life unless on presentment or indictment by a grand jury, and no person shall be held to answer for any other felony unless on presentment or indictment by a grand jury or on information in writing signed by the attorney-general or one of the attorney-general’s designated assistants, as the general assembly may provide and in accordance with procedures enacted by the general assembly. The general assembly may authorize the impaneling of grand juries with authority to indict for offenses committed any place within the state and it may provide that more than one grand jury may sit simultaneously within a county. No person shall be subject for the same offense to be twice put in jeopardy. Nothing contained in this article shall be construed as in any wise impairing the inherent common law powers of the grand jury.

Cross References.

Controlled substances violation proceedings, § 21-28-4.12 .

NOTES TO DECISIONS

Construction With Other Provisions.

Sections 7, 10, and 15 of this article should be read together to determine the constitutional guaranties of one accused of a capital or infamous crime. In re Opinion to Governor, 62 R.I. 200 , 4 A.2d 487, 1939 R.I. LEXIS 17 (1939).

Double Jeopardy.

Indictment of defendant for being a common seller of liquor under section of a statute which required three sales as evidence of being a common seller did not subject defendant to double jeopardy on the ground that he was subject to indictment under another section of the statute for each sale of liquor, since the defendant was not indicted for making any one sale, but for being a common seller. State v. Johnson, 3 R.I. 94 , 1855 R.I. LEXIS 1 (1855).

A defendant could not plead prior jeopardy on the ground that he had previously been charged with the same offense where the district court which had power to try or bind over had dismissed the prior charge for failure to prosecute after a plea of not guilty. State v. Munroe, 26 R.I. 38 , 57 A. 1057, 1904 R.I. LEXIS 8 (1904).

Discharge on writ of habeas corpus of prisoner indicted for murder who had been imprisoned without trial for a period of six months contrary to provisions of G.L. 1909, ch. 354, § 17 [§ 12-13-7 ] did not constitute a discharge for the offense of murder but was only a discharge from prison under the indictment so that when state nol-prossed and a new grand jury returned another indictment for murder, the prior discharge was not a bar to the prosecution. State v. Deslovers, 40 R.I. 89 , 100 A. 64, 1917 R.I. LEXIS 15 (1917).

Acquittal on charge of assault could not be pleaded as a bar to a subsequent charge for rape where the prior court did not have jurisdiction to try the offense of rape. State v. Pearson, 49 R.I. 386 , 143 A. 413, 1928 R.I. LEXIS 73 (1928).

Where sentence of petitioner was to to begin after expiration of prior sentence he was then erroneously thought to be serving and it was later discovered that he was not serving a prior sentence, a correction of the sentence four days later, when he was again brought before the court, did not constitute two sentences on one indictment and was not a violation of his constitutional rights under this provision. Sanford v. Langlois, 93 R.I. 1 , 170 A.2d 283, 1961 R.I. LEXIS 69 (1961).

Defendant’s acquittal on charge of driving under the influence of liquor does not preclude the introduction of such evidence in the trial of defendant for driving so as to endanger, death resulting, and the defendant’s right against double jeopardy is not thereby violated. State v. Amaral, 109 R.I. 379 , 285 A.2d 783, 1972 R.I. LEXIS 1196 (1972).

It was double jeopardy to indict on both a crime of violence and assault with a dangerous weapon where all elements of the former crime were included in those of the latter. State v. Boudreau, 113 R.I. 497 , 322 A.2d 626, 1974 R.I. LEXIS 1203 (1974).

The granting of a Rule 29 motion for judgment of acquittal under the Rules of Criminal Procedure of the Superior Court did not preclude on double jeopardy grounds a changed ruling and submission of the original charges to the jury, where the granting of the motion only had the effect of reducing certain charges and was never communicated to the jury. State v. Iovino, 524 A.2d 556, 1987 R.I. LEXIS 449 (R.I. 1987).

The record was barren of any evidence of a manifest necessity that would justify the declaration of a mistrial due to the sudden illness of a juror, where there was a strong possibility that the juror could have returned to his duties after a few days away from the courthouse, and, therefore, the defendant’s retrial was barred by the constitutional prohibition against double jeopardy. State v. Sanchez, 541 A.2d 455, 1988 R.I. LEXIS 59 (R.I. 1988).

Double jeopardy does not bar the state from proceeding on all three available theories of murder in the second degree where a charge of second-degree murder has been reinstated without limitation one day after the grant of a judgment of acquittal on the charge. State v. Iovino, 554 A.2d 1037, 1989 R.I. LEXIS 31 (R.I. 1989).

The defendant’s convictions on abominable and detestable crime against nature counts violates the prohibition against double jeopardy, where some, if not all, of the actions underlying the conviction are the same acts that constituted the basis of the defendant’s first degree sexual assault convictions. State v. Barnes, 559 A.2d 136, 1989 R.I. LEXIS 95 (R.I. 1989).

Where the same set of facts give rise to the charges as contained in counts 2, 4, and 7 of a criminal information lodged against a defendant, who argues that the information is multiplicious and a violation of his Federal and State Constitutional protections against double jeopardy and that counts 4 and 7 are lesser included offenses of count 2 and do not require proof of any additional facts, the trial justice is correct in denying the defendant’s motion to compel election because the state can prove any one of the charges at trial if the evidence elicited supports a guilty verdict, and because the defendant can adequately prepare a defense, as he is effectively put on notice of the possible conviction of a lesser offense supported by the evidence. State v. Tessier, 589 A.2d 1199, 1991 R.I. LEXIS 78 (R.I. 1991).

Defendant, who was convicted on two counts of first-degree sexual assault, is not placed in double jeopardy, where two separate acts, one occurring outdoors in the woods and one in a bathroom, properly constitute the basis for two separate charges of first-degree sexual assault. State v. Purro, 593 A.2d 450, 1991 R.I. LEXIS 133 (R.I. 1991).

Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion. State v. Perez, 605 A.2d 1305, 1992 R.I. LEXIS 69 (R.I. 1992).

The double-jeopardy clause did not bar the state from prosecuting a juvenile defendant in the superior court following his participation in a waiver-of-jurisdiction hearing in the family court, since the double-jeopardy clause applies only to proceedings that are “essentially criminal”, subjecting the defendant to the possibility of punitive incarceration. State v. Grabowski, 644 A.2d 1282, 1994 R.I. LEXIS 196 (R.I. 1994).

Although first-degree murder and second-degree murder constitute the “same offense” under Rhode Island law, the defendant’s retrial for second-degree murder, the lesser-included offense, following his acquittal on the charge of first-degree murder, did not violate his constitutional rights against double jeopardy, since first-degree murder also requires proof of premeditation of more than a momentary duration and proof of deliberation, whereas second-degree murder does not, thus satisfying the applicable “same evidence” test. State v. Grabowski, 644 A.2d 1282, 1994 R.I. LEXIS 196 (R.I. 1994).

Defendant never properly brought the defense of double jeopardy to the trial justice’s attention, nor did the facts give rise to one of the limited situations wherein the court would address a double jeopardy claim despite its improper assertion. State v. Thomas, 654 A.2d 327, 1995 R.I. LEXIS 38 (R.I. 1995).

In determining whether a defendant is threatened with being twice prosecuted for the same offense, the “same evidence” test is applied; that is, whenever a defendant is charged under multiple statutory provisions based on a single criminal episode, that defendant may be prosecuted for each offense only if each crime requires proof of an element distinct from the other. There can be no doubt that assault with a dangerous weapon under § 11-5-2 and leaving the scene of an accident under § 31-26-1 require proof of different elements. State v. Sabetta, 672 A.2d 451, 1996 R.I. LEXIS 64 (R.I. 1996).

Since possession of the same shotgun and possession of the same cocaine served as the basis for charges of possession of cocaine while having available a shotgun, and possession of a shotgun while committing a crime of violence, being in possession of cocaine, double jeopardy attached. In re Malik D., 730 A.2d 1070, 1999 R.I. LEXIS 136 (R.I. 1999).

Prior finding that a confined juvenile who refused to participate in required psychiatric treatment was in civil contempt did not preclude, on double jeopardy grounds, a later prosecution for criminal contempt based on continued noncompliance. State v. Price, 820 A.2d 956, 2003 R.I. LEXIS 99 (R.I. 2003).

Standard for determining whether an accused is in danger of being twice placed in jeopardy for the same offense, in violation of R.I. Const. art. 1, § 7 , precluding such conduct, is the same standard that is enunciated in the Blockburger test; because of the similar wording and purpose underlying § 7 and U.S. Const. amend. V on this subject, Rhode Island cases have hewed closely to United States double-jeopardy law when applying R.I. Const. art. 1, § 7 . State v. Rodriguez, 822 A.2d 894, 2003 R.I. LEXIS 113 (R.I. 2003).

If the Blockburger test is satisfied, then a court can impose separate and cumulative sentences because such sentences can be given after conviction of two or more crimes that are not the “same” offense under Blockburger ; but if the crimes are found to be the “same” under Blockburger , then the court must examine the challenged statutes to ascertain whether the legislature intends to authorize cumulative sentencing in the circumstances of the case at bar. State v. Rodriguez, 822 A.2d 894, 2003 R.I. LEXIS 113 (R.I. 2003).

Defendant waived an argument that convictions and separate sentences for second-degree murder and carrying a dangerous weapon in the commission of a crime of violence violated double jeopardy guarantees by failing to raise it in a pretrial motion; nonetheless, the court ruled on the merits and held in furtherance of Rodriguez , that the two crimes were separate for double jeopardy purposes as each required an element that the other did not, namely, commission of a murder and the carrying of a dangerous weapon. State v. McGuy, 841 A.2d 1109, 2003 R.I. LEXIS 209 (R.I. 2003).

Collateral estoppel, under R.I. Const. art. I, § 7 , did not bar State from prosecuting defendant for firearms violations because, although the offenses had been tried in a probation violation hearing, an appeals court had quashed that judgment; thus it was a nullity and had no preclusive effect. State v. Santiago, 847 A.2d 252, 2004 R.I. LEXIS 82 (R.I. 2004).

Defendant’s convictions for first-degree murder and discharging a firearm while committing a crime of violence, resulting in death did not violate the Double Jeopardy Clause in R.I. Const. art. I, § 7 . State v. Feliciano, 901 A.2d 631, 2006 R.I. LEXIS 140 (R.I. 2006).

Rhode Island trial court properly denied defendant’s motion to dismiss, on double jeopardy grounds, a kidnapping charge due to his conviction in New York of felony murder, with the same kidnapping being the predicate felony. Defendant did not show that the cooperative efforts of officials of both states in investigating and prosecuting him defeated the dual sovereignty rule. State v. Rodriguez, 917 A.2d 409, 2007 R.I. LEXIS 30 (R.I. 2007).

Dual convictions for carrying a dangerous weapon when committing a crime of violence and first-degree robbery did not constitute a double jeopardy violation because each offense included an additional element of proof that was not contained in the other; the jury could have returned a verdict of guilty on the robbery charge based on either defendant’s use of a dangerous weapon or the injury inflicted upon the victim, while the conviction for committing a crime of violence while armed or having available a firearm did not require that the weapon be used or that there be an injury to the victim. State v. Stone, 924 A.2d 773, 2007 R.I. LEXIS 77 (R.I. 2007).

Because the court determined that defendant’s actions, which resulted in robbery, felony assault, and obstruction charges being filed against him, violated his probation, but it never convicted or punished him for those offenses, the State’s subsequent prosecution of defendant for those offenses did not implicate double jeopardy considerations under R.I. Const. art. I, § 7 . State v. Yates, 934 A.2d 222, 2007 R.I. LEXIS 97 (R.I. 2007).

Charges of assault with a dangerous weapon and assault and battery resulting in serious injury did not merge, as defendant’s assault of the victim with a screwdriver supported the former, while the dislocation of the victim’s shoulder supported the latter. State v. Scanlon, 982 A.2d 1268, 2009 R.I. LEXIS 127 (R.I. 2009).

Defendant did not preserve for review a merger claim under the Double Jeopardy Clauses of the United States and Rhode Island Constitutions, U.S. Const. amend. IV, and R.I. Const. art. I, § 7 as the merger issue was not raised before the trial justice as required by R.I. Super. Ct. R. Crim. P. 12 (b)(2), and the trial justice did not rule on the issue; however, defendant could seek relief under R.I. Super. Ct. R. Crim. P. 35 within 120 days of the opinion. State v. Shelton, 990 A.2d 191, 2010 R.I. LEXIS 35 (R.I. 2010).

Convictions for robbery and using a firearm during a violent crime did not violate the Double Jeopardy Clauses of the state and federal constitutions, where the General Assembly expressed a clear directive that consecutive sentences be imposed for certain violence crimes committed by use of a firearm. State v. Marsich, 10 A.3d 435, 2010 R.I. LEXIS 118 (R.I. 2010).

There was no double jeopardy violation under the Double Jeopardy Clauses of the federal and Rhode Island Constitutions in defendant’s conviction of assault with a dangerous weapon (ADW) and larceny since ADW was not a lesser included offense of larceny, and the ADW and larceny convictions were based on distinct acts as the larceny occurred after the ADW and was not related to the ADW, which was motivated by defendant’s rage against the victim. State v. Oliver, 68 A.3d 549, 2013 R.I. LEXIS 117 (R.I. 2013).

Defendant’s convictions and sentences for using a firearm to commit second-degree murder and second degree murder did not violate double jeopardy because (1) each crime required proof of a fact the other did not, and (2) the legislature intended consecutive sentences under the circumstances. Linde v. State, 78 A.3d 738, 2013 R.I. LEXIS 135 (R.I. 2013).

Defendant was not entitled to acquittal on double jeopardy grounds as to convictions for discharging a firearm in commission of a crime of violence and assault with intent to murder because the legislature clearly intended multiple sentences for such convictions arising from one incident. State v. Young, 78 A.3d 787, 2013 R.I. LEXIS 142 (R.I. 2013).

Although the question of double jeopardy was not properly raised prior to trial under the rules of criminal procedure, and the issue was waived, nonetheless, there was no double jeopardy violation to remedy; defendant stood convicted of (and punished for) assault by strangulation, and was acquitted of assault with a dangerous weapon. State v. Funches, 160 A.3d 981, 2017 R.I. LEXIS 72 (R.I. 2017).

— Civil Fines.

A fine assessed against a former mayor for violations of the Code of Ethics may represent punishment to the extent that it would bar a subsequent prosecution for criminal acts under double jeopardy analysis, if the fine is not merely remedial but also serves a retributive or deterrent purpose. State v. Levesque, 694 A.2d 411, 1997 R.I. LEXIS 118 (R.I. 1997).

— Civil Forfeitures.

Civil in rem forfeiture proceedings do not implicate the double jeopardy clause and are not per se quasi-criminal. State v. One 1990 Chevrolet Corvette, 695 A.2d 502, 1997 R.I. LEXIS 201 (R.I. 1997).

— Retrial.

A retrial following a mistrial was not barred, where the record did not indicate any attempt by the prosecution or the court to goad defendant into seeking a mistrial. State v. Mallett, 604 A.2d 1263, 1992 R.I. LEXIS 65 (R.I. 1992).

Even though the necessity for a mistrial was brought about by the state’s failure to comply with the rules of discovery, double-jeopardy principles did not preclude a second trial. There is only one exception to the general rule that a mistrial requested by a defendant does not bar a retrial: when the prosecutorial conduct in question was intended to “goad” the defendant into moving for a mistrial. State v. McIntyre, 671 A.2d 806, 1996 R.I. LEXIS 63 (R.I. 1996).

Reprosecution was not barred since the prosecution did not in any way deliberately intend to cause the resulting mistrial by eliciting improper testimony from a state trooper on the witness stand. State v. Beltre, 764 A.2d 190, 2000 R.I. LEXIS 208 (R.I. 2000).

Because it was undisputed that the State’s discovery violation was unintentional, there were no double jeopardy issues that would preclude a new trial. State v. Gonzalez, 923 A.2d 1282, 2007 R.I. LEXIS 83 (R.I. 2007).

Trial court properly denied defendant’s motion to dismiss an indictment for murder and assault on double jeopardy grounds, after he was granted a mistrial in the first trial as a result of the prosecutor eliciting testimony from a witness that referenced defendant’s purported drug business, as there was no evidence that the prosecution goaded defendant into moving for a mistrial based on mistakenly eliciting the testimony. The record and transcript indicated that both the prosecution and the defense were surprised by the witness’s testimony and prosecutorial mistake did not, in and of itself, constitute goading. State v. O'Connor, 936 A.2d 216, 2007 R.I. LEXIS 124 (R.I. 2007).

Retrial on the charge of kidnapping did not violate double jeopardy, as there was not abuse of discretion by the trial judge when he determined that the jury was “genuinely deadlocked” after he had made a prudent examination of the jury’s progress, provided supplemental instructions, and requested that the jurors return to deliberations for a reasonable period. State v. Gordon, 30 A.3d 636, 2011 R.I. LEXIS 133 (R.I. 2011).

Trial court properly denied defendant’s motion to dismiss a charge of second-degree sexual assault on double jeopardy grounds under R.I. Const. art. 1, § 7 and the Fifth Amendment to the United States Constitution because sufficient evidence supported the trial court’s finding that the prosecutor’s production during trial of a revised statement from the complaining witness was not intended to provoke a mistrial. State v. Rolle, 84 A.3d 1149, 2014 R.I. LEXIS 16 (R.I. 2014).

Superior court properly denied defendant’s motion to dismiss, on double jeopardy grounds, a criminal information charging him with breaking and entering a dwelling; while the prosecutor’s comment during closing argument indirectly addressed defendant’s failure to take the witness stand, the comment was likely the result of a mistake and was not intended to goad defendant into seeking a mistrial. The prosecutor’s misconduct did not occur when the case was unraveling, the prosecutor’s experience was minimal, and the trial justice considered all of the arguments presented by the parties and performed a balanced and conscientious analysis of the objective facts and circumstances in the case. State v. Corleto, 161 A.3d 504, 2017 R.I. LEXIS 81 (R.I. 2017).

Defendant’s right to be free from double jeopardy was not violated because he merely asserted that admitting the acquitted conduct into evidence, under R.I. R. Evid. 404 (b), would force him to relitigate issues already decided by a valid judgment of acquittal, but defendant did not argue that the jury in the first trial necessarily decided the ultimate issue in count five, one of the first-degree sexual assault counts, which resulted in a deadlocked jury and was the only count for which the State sought a retrial; and his argument that admitting the acquitted conduct into evidence would force defendant to relitigate those same issues already decided by a valid judgment of acquittal conflated a double jeopardy contention with one that was evidentiary. State v. Forlasto, 217 A.3d 489, 2019 R.I. LEXIS 117 (R.I. 2019).

Grand Jury.

This provision gives to an accused the right to insist that the indictment be found by a legally constituted grand jury. State v. Muldoon, 67 R.I. 80 , 20 A.2d 687, 1941 R.I. LEXIS 75 (1941).

An indictment would be quashed as invalid, when properly challenged, where any one member of grand jury was drawn or qualified by a person other than the one designated by law. State v. Muldoon, 67 R.I. 80 , 20 A.2d 687, 1941 R.I. LEXIS 75 (1941).

Grand jurors from cities not drawn and qualified by appointed jury commissioner in compliance with P.L. 1939, ch. 700 [§ 9-9-1 et seq.] after its effective date but taken from list of those drawn and qualified by clerk of superior court under pre-existing law were not grand jurors within the meaning of this section. State v. Muldoon, 67 R.I. 80 , 20 A.2d 687, 1941 R.I. LEXIS 75 (1941).

The presence of an officially-appointed court stenographer, serving within the conditions imposed by the statute which authorizes the use of the stenographer appointed by court under certain circumstances to report stenographically the testimony given before grand jury and to be present only during the taking thereof would not deprive an accused of any rights guaranteed under either the state or federal constitutions. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

The term “county” is used to define the territorial limits of the jurisdiction of the grand jury, and since it is merely an appendage of the court for which it is summoned and authorized to inquire, its jurisdiction may be made coextensive with that of the court’s jurisdiction and the territory over which such jurisdiction extends, and not necessarily confined to the geographical lines of any county. Therefore it is clear that the legislature by the enactment of § 37 of General Laws 1938, ch. 506, now § 12-11-2 , expressly provided that the jurisidiction of the grand jury would be coextensive with that of the court when sitting for those counties. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

Since the jurisdiction of the superior court includes geographically both counties, and since the jurisdiction of the grand jury is coextensive with that of the court under whose supervision it is impaneled, it is the court’s opinion that with respect to grand jury proceedings the combined counties are a “county” within the meaning of the declarement of common law where all members of the grand jury must be residents of the county for which they are sworn to inquire. Therefore, there is no merit in defendant’s contention that the statute which authorized the Bristol residents to serve on the instant grand jury is unconstitutional. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

Upon discovery that the jurisdiction of a charge of assaulting with a dangerous weapon was in the family court by reason of the fact that the victim was the defendant’s wife, it was improper for the superior court to refer the case to the family court notwithstanding the fact that the indictment had been returned by the superior court grand jury and the family court had no grand jury. State v. Perry, 103 R.I. 6 , 234 A.2d 115, 1967 R.I. LEXIS 568 (1967).

A validly convened grand jury could authorize an agent to receive medical records subsequently delivered to the assistant attorney general. State v. Guido, 698 A.2d 729, 1997 R.I. LEXIS 252 (R.I. 1997).

Prosecutors were not required to introduce “substantially exculpatory” evidence to the grand jury, where the exculpatory evidence in a charge of first degree sexual assault under R.I. Gen. Laws § 11-37-2 was merely the defendants’ claim of consensual sex. The proposed evidence in the case that the two defendants had consensual sex with the woman allegedly victimized was not clearly substantially exculpatory, but instead went to the competency of the state’s evidence. State v. Russell, 950 A.2d 418, 2008 R.I. LEXIS 80 (R.I. 2008).

Indictment.

Unlike the federal system, the criminal charging process created by this constitutional provision permits a defendant to be charged by either grand jury indictment or by information filed by the Attorney General or his or her designated assistant. State v. Guido, 698 A.2d 729, 1997 R.I. LEXIS 252 (R.I. 1997).

— Amendment.

An indictment can be amended only by the grand jury which returned it, or with the consent of the accused. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916).

This section may be waived by the accused and was not violated by the trial of a defendant with his consent on an affidavit that contained his correct name on the jacket but a wrong name in the body of the indictment, where the court with the consent of the accused amended the indictment by correcting the name in the body. Picillo v. Sharkey, 107 R.I. 147 , 265 A.2d 644, 1970 R.I. LEXIS 751 (1970).

Defendant’s presumption of innocence was neither affirmed nor infringed where jury failed to find sufficient guilt for the larger indicted offense but rendered guilty verdict on a lesser included offense of the indictment, such common law conviction being statutorily and constitutionally valid under § 12-17-4 . State v. Walsh, 113 R.I. 118 , 318 A.2d 463, 1974 R.I. LEXIS 1146 (1974).

— Bill of Particulars.

Simplified indictment for embezzlement authorized by G.L. 1909, ch. 345, § 18, under which the court may order a bill of particulars, did not violate this section, because bill of particulars is not an amendment of an indictment nor does it supply a defect therein. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916).

— Specific Crimes.

Where the object of the conspiracy is unlawful in itself, neither the statement of the means by which the conspirators intended to accomplish the object, nor its successful accomplishment, is essential to the indictment. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

Indictment for possession of obscene material couched in the language of G.L. 1938, ch. 610, § 13 [§ 11-31-1 ] was not objectionable on the ground that it deprived the defendant of the constitutional right to know the cause of the accusation, if all of the essential elements of the offense clearly appeared in the indictment. State v. Ephraim, 80 R.I. 321 , 96 A.2d 641, 1953 R.I. LEXIS 70 (1953).

Since a conviction under R.I. Gen. Laws § 11-9-5.3 carried a minimum sentence of five years’ imprisonment, a prosecution for violation of the statute could only be commenced via an information or indictment, and the felony complaint filed against defendant did not commence the prosecution. It merely provided an instrument under which bail could be set. State v. Jennings, 944 A.2d 171, 2008 R.I. LEXIS 35 (R.I. 2008).

Information.

Neither statutory requirements nor constitutional guarantees mandate the obtaining of affidavits from the complaining witness by the Attorney General’s office when prosecution is sought through information charging. State v. O'Brien, 441 A.2d 532, 1982 R.I. LEXIS 805 (R.I. 1982).

Juveniles.

Pursuant to R.I. Const. art. I, § 7 , dismissal of the separate cases brought against the defendants, in the Superior Court and in the District Court, respectively, would not be proper despite the fact that those courts did not have jurisdiction over the defendants because they were only 17-years-old at the time they committed the alleged offenses. Rather, the proper thing to do would be to transfer those cases to the court having exclusive original jurisdiction, which was the Family Court pursuant to R.I. Gen. Laws § 14-1-5 . State v. Greenberg, 951 A.2d 481, 2008 R.I. LEXIS 88 (R.I. 2008).

Petit Jury.

P.L. 1918, ch. 1877, § 23 [§ 9-10-8 ], determining the period of service of petit jurors, did not violate this section. State v. Visciani, 42 R.I. 419 , 108 A. 418, 1920 R.I. LEXIS 1 (1920).

Collateral References.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — Modern view. 97 A.L.R.5th 201.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges. 2 A.L.R.5th 262.

Double jeopardy considerations in federal criminal cases — Supreme Court cases. 162 A.L.R. Fed. 415.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

What constitutes accused’s consent to court’s discharge of jury or to grant of motion for mistrial which will constitute waiver of former jeopardy plea — Silence or failure to object or protest. 103 A.L.R.6th 137.

§ 8. Bail, fines and punishments.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted; and all punishments ought to be proportioned to the offense.

Cross References.

Federal guaranties, U.S. Const., Amend. 8.

Bail and recognizance generally, § 12-13-1 et seq.

Law Reviews.

Mackenzie McBurney, Comment: Paying the Price: Eliminating Life Without Parole Sentences for Juveniles in Rhode Island, 23 Roger Williams U. L. Rev. 553 (2018).

Comparative Provisions.

Excessive bail and fines:

Conn. 1965 Const., art. First, § 8.

Mass. Const. Pt. 1, Art. 26.

NOTES TO DECISIONS

Consecutive Sentences.

Imposition of two consecutive terms of life imprisonment for first-degree murder and using a firearm while committing a crime of violence resulting in death did not violate Eighth Amendment or R.I. Const. art. I, § 8 ; the sentence imposed was mandatory and the crime was precisely that type the Legislature intended to address when it provided for a mandatory consecutive life sentence for using a firearm while committing murder. State v. Monteiro, 924 A.2d 784, 2007 R.I. LEXIS 81 (R.I. 2007).

Defendant’s consecutive life sentence for using a firearm to commit second-degree murder did not violate the Eighth Amendment or R.I. Const. art. I, § 8 because (1) no violation had been found in the context of first-degree murder, and that holding did not depend on the classification of murder, and (2) the legislature intended the sentence to apply to crimes such as defendant’s. Linde v. State, 78 A.3d 738, 2013 R.I. LEXIS 135 (R.I. 2013).

Cruel Punishment.

The penalty prescribed in G.L. 1896, ch. 163, § 1, as amended [§ 5-15-10 ][now repealed] of both fine and imprisonment was not unusual, oppressive, or cruel, so as to come within the prohibition of this section. State v. Foster, 22 R.I. 163 , 46 A. 833, 1900 R.I. LEXIS 72 (1900).

A defense argument that the user of an addictive drug is afflicted with a disease, and that to punish him for an affliction is constitutionally impermissible is irrelevant where there is no evidence that the defendant is a user and he is charged, not with using, but with possession of cannabis. State v. Carufel, 106 R.I. 739 , 263 A.2d 686, 1970 R.I. LEXIS 983 (1970).

Section 12-19-21 is consistent with the requirement of R.I. Const., art. 1, § 8 , that the punishment should be in proportion to the offense. The statute reflects the legislature’s determination that a third or subsequent offense is more serious than a first or second offense and accordingly should be punishable as such. State v. Tregaskis, 540 A.2d 1022, 1988 R.I. LEXIS 69 (R.I. 1988).

Imposing an additional 25 years pursuant to the habitual-criminal statute, after the imposition of two life sentences without eligibility for parole, was not cruel and unusual punishment, where the defendant had two prior convictions for rape of a child under the age of 16 in Massachusetts for which he received prison sentences, and where he was found guilty and convicted of the murders and torture of two children with a screwdriver in Rhode Island. State v. Smith, 602 A.2d 931, 1992 R.I. LEXIS 18 (R.I. 1992).

Section 12-19-21 , the habitual offender enhanced sentencing statute, does not create a separate offense and does not violate either equal protection or due process under the state or federal constitutions. State v. Clark, 754 A.2d 73, 2000 R.I. LEXIS 116 (R.I. 2000).

Supreme Court of Rhode Island adopted the narrow application of proportionality announced by the United States Supreme Court in the Ewing decision, and applied it to claims under both the federal and Rhode Island constitutions by a post-conviction relief petitioner who challenged a sentence to which petitioner had agreed; since the sentence was neither illegal nor grossly disproportionate to petitioner’s offenses, the agreement was enforced. McKinney v. State, 843 A.2d 463, 2004 R.I. LEXIS 30 (R.I. 2004).

Defendant’s sentence for second-degree child molestation of 20 years, with 15 years to be served at the Adult Correctional Institutions and the other five years suspended, did not constitute cruel and unusual punishment under U.S. Const. amend. VIII or R.I. Const. art. 1, § 8 because the sentence fell within the range set out in R.I. Gen. Laws § 11-37-8.4 and a departure from the sentencing benchmarks was proper based on defendant’s criminal history. Alessio v. State, 924 A.2d 751, 2007 R.I. LEXIS 71 (R.I. 2007).

Excessive Bail.

Bail of $25,000 was not excessive where defendant was charged with embezzling bank funds of at least $50,000, even though the penalty for larceny is only $5,000 fine or five years imprisonment, since bail should give reasonable security in relation to the offense charged. Ex parte Snow, 1 R.I. 360 , 1850 R.I. LEXIS 16 (1850).

The supreme court will not disturb the lower court’s decision on amount of bail unless it appears that the lower court exceeded reasonable discretion. Ex parte Snow, 1 R.I. 360 , 1850 R.I. LEXIS 16 (1850).

While in the supreme court’s judgment there is merit in petitioner’s contention that, under all the circumstances, he having tried to escape from an adult correctional institution after having as a youth been incarcerated for an offense of nonviolent nature, he being a lifelong resident of the state, the sum of $20,000 was excessive, the court was not prepared to agree that the sum of $2,500 suggested by him would reasonably tend to guarantee his presence on demand. Benoit v. Langlois, 96 R.I. 129 , 189 A.2d 805, 1963 R.I. LEXIS 59 (1963).

Excessive Fines.

Fine of twenty dollars for each partridge unlawfully possessed provided in G.L. 1896, ch. 112, § 4, was not so clearly excessive as to violate this section. In re Stone, 21 R.I. 14 , 41 A. 658, 1898 R.I. LEXIS 13 (1898).

An exemplary award of $225,000 against a bank in the circumstances of a case is well within the discretion of the trier of fact to determine for a deliberate conversion of funds, where the liability of a successor bank (which in a merge agreement, agrees to assume all liabilities of the predecessor bank) for this award is a matter of voluntary assumption of liability and does not implicate either the due process of the federal constitution or the excessive fines clause of the state constitution. Douglas v. Bank of New Eng., 566 A.2d 939, 1989 R.I. LEXIS 161 (R.I. 1989).

Civil penalties assessed by state ethics commission in the amount of $15,000 against former governor for violations of §§ 36-14-5 and 36-14-6 were fair and reasonable and did not violate this section. DiPrete v. Morsilli, 635 A.2d 1155, 1994 R.I. LEXIS 7 (R.I. 1994).

No Interference With Rights.

Where a defendant was represented by counsel of his choice, assisted his counsel in the design of a plea agreement that prevented him from felony charges and, after thorough questioning by the hearing justice, had the opportunity to “sleep on” his decision to enter into the agreement, he could not claim his rights were violated by that agreement. State v. D'Amario, 725 A.2d 276, 1999 R.I. LEXIS 18 (R.I. 1999).

Pension Forfeiture.

The termination of the pension of an active retired justice, found guilty of various unethical acts involving the use of his position for financial gain, did not constitute a disproportionate remedy in violation of this provision. The judge’s actions motivated by the desire for personal gain operated to harm the public trust and confidence in the Judiciary as a whole and to affect adversely the honor and integrity of the very position he held and the capacity in which he served. In re Almeida, 611 A.2d 1375, 1992 R.I. LEXIS 144 (R.I. 1992). But see § 36-10.1-1 et seq.

Proportionality.

The proportionality of sentence analysis should be guided by objective criteria, including: (i) the gravity of the offense and the harshness of the penalty, and (ii) the sentences imposed on other criminals in the same jurisdiction. State v. Ouimette, 479 A.2d 702, 1984 R.I. LEXIS 532 (R.I. 1984).

Defendant’s claim that a life sentence was grossly disproportional to the offense was rejected given that he pled guilty to second-degree murder, and life imprisonment was within the purview of R.I. Gen. Laws § 11-23-2 , which prescribed the penalties for murder. State v. Miguel, 101 A.3d 880, 2014 R.I. LEXIS 139 (R.I. 2014).

Collateral References.

Application of constitutional rule of Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), that execution of mentally retarded persons constitutes “cruel and unusual punishment” in violation of Eighth Amendment. 122 A.L.R.5th 145.

Construction and application of rule announced in Miller v. Alabama that sentences of life without parole for persons under 18 at time of committing homicide offense violate Eighth Amendment if mandatory and imposed without considering youth-related factors. 16 A.L.R.7th Art. 4 (2015).

Excessive fines clause of Eighth Amendment — Supreme Court cases. 172 A.L.R. Fed. 389.

Liability of Prison Guard, Official, or Supervisor for Rape or Sexual Abuse of Inmate in Violation of Eighth Amendment “Deliberate Indifference” Standard, Post-Farmer Cases — Federal Appellate Opinions. 41 A.L.R. Fed. 3d Art. 7 (2019).

Prison inmate’s or pretrial detainee’s Eighth Amendment rights, or rights related to claims of “deliberate indifference,” with respect to pregnancy. 6 A.L.R.7th Art. 7 (2016).

Propriety of carrying out death sentences against mentally ill individuals. 111 A.L.R.5th 491.

Retroactive application, in postconviction proceedings, of constitutional rule of Miller v. Alabama , 132 S. Ct. 4255, 183 L. Ed. 2d 407 (2012), that mandatory life sentence without parole for those under age of 18 at time of their homicide crimes violates Eighth Amendment’s prohibition of cruel and unusual punishments. 102 A.L.R.6th 637.

Substantive challenges to propriety of execution by lethal injection in state capital proceedings. 21 A.L.R.6th 1.

When does forfeiture of currency, bank account, or cash equivalent violate excessive fines clause of Eighth Amendment. 164 A.L.R. Fed. 591.

When does forfeiture of motor vehicle pursuant to federal statute violate excessive fines clause of Eighth Amendment. 169 A.L.R. Fed. 615.

When does forfeiture of real property violate excessive fines clause of Eighth Amendment — Post-Austin cases. 168 A.L.R. Fed. 375.

§ 9. Right to bail — Habeas corpus.

All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by imprisonment for life, or for offenses involving the use or threat of use of a dangerous weapon by one already convicted of such offense or already convicted of an offense punishable by imprisonment for life, or for offenses involving the unlawful sale, distribution, manufacture, delivery, or possession with intent to manufacture, sell, distribute or deliver any controlled substance or by possession of a controlled substance punishable by imprisonment for ten (10) years or more, when the proof of guilt is evident or the presumption great. Nothing in this section shall be construed to confer a right to bail, pending appeal of a conviction. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety shall require it; nor ever without the authority of the general assembly.

History of Section.

A proposed amendment to Article I, Section 9 of the R.I. Constitution by Joint Resolution 262 was approved by a majority of the electorate voting in a statewide referendum on November 8, 1988.

Compiler’s Notes.

The pre-1986 constitution did not contain the exclusion for certain controlled substances offenses.

Cross References.

Habeas corpus, suspension by federal government, U.S. Const., Art. I, § 9.

Bail and recognizances generally, § 12-13-1 et seq.

Habeas corpus, § 10-9-1 et seq.

Comparative Provisions.

Bail and habeas corpus:

Conn. 1965 Const., art. First, §§ 8, 12.

Mass. Const. Pt. 1, Art. 26, Pt. 2, C. 6, Art. 7.

NOTES TO DECISIONS

Bail After Conviction.

A justice of the superior court was entitled to require defendant to post additional bail of $8,000 after he was found guilty of manslaughter, notwithstanding that prior bail of $2,500 had not been defaulted or broken, since the state was entitled under this provision to a guaranty in sufficient amount that the defendant would be in court when required. In re Mariano, 4 R.I. 534 , 84 A. 1086, 1912 R.I. LEXIS 81 (1912).

This section confers the right to bail only in those cases in which the accused has not had a trial and does not confer that right pending appeal from a conviction. Quattrocchi v. Langlois, 100 R.I. 741 , 219 A.2d 570, 1966 R.I. LEXIS 506 (1966); City of Warwick v. Robalewski, 120 R.I. 119 , 385 A.2d 669, 1978 R.I. LEXIS 642 (1978).

Despite heavy proof of guilt, post conviction bail remains within trial court’s discretion based on good faith appellate grounds, likelihood of new violent acts, community and family ties and severity and circumstances of sentence with conviction of violent crime not an automatic bar. State v. Abbott, 113 R.I. 430 , 322 A.2d 33, 1974 R.I. LEXIS 1195 (1974).

Denial of bail on appeal of rape and kidnapping convictions was abuse of discretion where based only on nature of the offense and amount of proof. State v. Abbott, 113 R.I. 430 , 322 A.2d 33, 1974 R.I. LEXIS 1195 (1974).

Bail pending appeal of an unsuccessful collateral attack on a final conviction should be granted only in exceptional cases. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The supreme court requires an applicant who requests bail to show that incarceration pending review of his application for post-conviction relief would be manifestly unjust. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

In assessing applications for bail pending direct appeal consideration should be given to: (1) whether the appeal is taken for delay or in good faith on grounds not frivolous but fairly debatable; (2) the habits of the individual regarding respect for the law insofar as they are relevant on the question of whether an applicant’s release would pose a threat to the community; (3) local attachments to the community by way of family ties, business or investment; (4) the severity of the sentence imposed, and circumstances relevant to the question of whether a defendant would remove himself from the jurisdiction of the court. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

For purposes of granting bail, the supreme court shall treat an appeal from a denial of an application for post-conviction relief as equivalent to a denial of a writ of habeas corpus following a final conviction. Thus, the court’s inherent power to grant bail pending review of a habeas challenge to a final conviction is incorporated in a review of the merits of an application for post-conviction relief. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

Bail Opposed by State.
— Burden of Proof.

Where the right to bail is sought after a party has been indicted for murder, where the state opposes bail, it must carry the burden of proving that guilt is evident or presumption great, since a person is innocent until proven guilty. Taglianetti v. Fontaine, 105 R.I. 596 , 253 A.2d 609, 1969 R.I. LEXIS 793 (1969).

Bail Pending Retrial.

Where defendant was convicted of second-degree murder and sentenced to 25 years’ imprisonment but conviction was subsequently vacated and a new trial ordered, defendant was entitled to bail pending retrial, since case of North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), precluded imposition of life imprisonment or any other enhanced penalty on retrial. Clarke v. Moran, 451 A.2d 577, 1982 R.I. LEXIS 1060 (R.I. 1982).

Bail Revocation.

The requirements of due process apply to bail revocation proceedings; therefore, a defendant awaiting a revocation hearing has the right to a speedy determination of his status. Mello v. Superior Court, 117 R.I. 578 , 370 A.2d 1262, 1977 R.I. LEXIS 1729 (1977).

A bail revocation hearing must be conducted with the same promptness as the hearing which follows state opposition to the granting of bail (see § 12-13-1.1 and Super. R. Crim. P. 5); a two-week delay in the bail revocation hearing is clearly unlawful. Mello v. Superior Court, 117 R.I. 578 , 370 A.2d 1262, 1977 R.I. LEXIS 1729 (1977).

The standard of proof applicable in bail revocation hearings is that evidence must “reasonably satisfy that there had been a violation”; this standard requires the state to go beyond probable cause and affords a defendant the necessary due process. Mello v. Superior Court, 117 R.I. 578 , 370 A.2d 1262, 1977 R.I. LEXIS 1729 (1977).

Conditions Imposed on Bail.

The action of the trial court in imposing the condition of good behavior on a defendant requesting release on bail is not unconstitutional. Mello v. Superior Court, 117 R.I. 578 , 370 A.2d 1262, 1977 R.I. LEXIS 1729 (1977).

This section does not provide a continuing, renewable right to bail on the same charge where a bail condition has been breached. Mello v. Superior Court, 117 R.I. 578 , 370 A.2d 1262, 1977 R.I. LEXIS 1729 (1977).

Denial of Bail.

Although this section states that bail may be denied only when defendant has been charged with a crime which is punishable by death or life imprisonment, it is not confined to crimes which carry mandatory life sentences, but applies also to crimes where death or life imprisonment could possibly be imposed. Fountaine v. Mullen, 117 R.I. 262 , 366 A.2d 1138, 1976 R.I. LEXIS 1622 (1976).

Even where both conditions for denying bail are satisfied, denial of bail is not mandatory, but rather the hearing judge should determine whether defendant should be granted bail as a matter of discretion. Fountaine v. Mullen, 117 R.I. 262 , 366 A.2d 1138, 1976 R.I. LEXIS 1622 (1976); DiMasi v. Mullen, 117 R.I. 281 , 366 A.2d 1149, 1976 R.I. LEXIS 1624 (1976).

It is constitutionally permissible to hold a defendant without bail in order to prevent danger to the community. Witt v. Moran, 572 A.2d 261, 1990 R.I. LEXIS 58 (R.I. 1990).

Section 12-13-5.1 , which provides that no absolute right to bail exists for defendants charged with the delivery of a controlled substance when the proof of guilt is evident or the presumption great, is constitutional. However, the trial justice may not rely solely on the statute in denying a defendant’s bail. In deciding whether to grant bail, the trial justice must make findings of fact on the record that relate to the individual defendant’s dangerousness. Witt v. Moran, 572 A.2d 261, 1990 R.I. LEXIS 58 (R.I. 1990).

Detention.

G.L. 1938, ch. 625, § 68, cl. 11, as amended by P.L. 1941, ch. 982 [former § 12-7-13 ], under which a defendant could be detained twenty-four hours before arraignment, did not violate the defendant’s right to be admitted to bail since G.L. 1938, ch. 501, § 1 [§ 12-10-1 ] did not mean that the courts must be open twenty-four hours a day for the transaction of criminal business. State v. Wax, 83 R.I. 319 , 116 A.2d 468, 1955 R.I. LEXIS 68 (1955).

The legislature in the exercise of its broad police power can provide for a distinction between “detention” and “arrest”; and a period of detention reasonably limited, unaccompanied by unreasonable or unnecessary restraint and based upon circumstances reasonably suggestive of criminal involvement is lawfully distinguished from an arrest by the legislature, creating no deprivation of liberty, due process, right to bail, speedy trial, representation by counsel and habeas corpus as guaranteed by the constitution. Kavanagh v. Stenhouse, 93 R.I. 252 , 174 A.2d 560, 1961 R.I. LEXIS 102 (1961).

Determining Factors.

In determining whether the proof of guilt is evident or the presumption great, the hearing judge at a pretrial bail hearing shall not make any determination of guilt, but shall merely determine whether the evidence, viewed in the light most favorable to the state, is legally sufficient to sustain a guilty verdict. Fountaine v. Mullen, 117 R.I. 262 , 366 A.2d 1138, 1976 R.I. LEXIS 1622 (1976); DiMasi v. Mullen, 117 R.I. 281 , 366 A.2d 1149, 1976 R.I. LEXIS 1624 (1976).

In determining whether the proof of guilt is evident or the presumption great, a confession obtained in violation of defendant’s Miranda rights may not be relied upon and denial of bail based solely upon such a confession is improper. Massey v. Mullen, 117 R.I. 272 , 366 A.2d 1144, 1976 R.I. LEXIS 1623 (1976).

In determining whether the proof of guilt is evident or the presumption great, under the test set out in Fountaine v. Mullen, 117 R.I. 262 , 366 A.2d 1138 (1976), the court need not assess the credibility of witnesses, since the evidence is to be viewed in the light most favorable to the state. DiMasi v. Mullen, 117 R.I. 281 , 366 A.2d 1149, 1976 R.I. LEXIS 1624 (1976).

Juveniles.

The right to bail guaranteed by this section extends only to persons imprisoned; juveniles held pending delinquency proceedings are not so detained. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

Juveniles seeking release pending adjudication are not situated like adults applying for bail pending trial. A child does not have the unqualified right of individual liberty that an adult has because a child is subject to parental control. Therefore, the full basis for bail does not exist with regard to children, for a child released on bail would not gain individual freedom from custody but would simply be restored to parental control. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

When the court grants custody of the child to the state, it is placing him in the care of surrogate parents who exercise parental authority, not penal authority; accordingly the right to bail guaranteed to adults, on whom the state cannot impose parental authority, is inapplicable to the family court detention decision. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

Collateral References.

Right of extraditee to bail after issuance of governor’s warrant and pending final disposition of habeas corpus claim. 13 A.L.R.5th 118.

§ 10. Rights of accused persons in criminal proceedings.

In all criminal prosecutions, accused persons shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against them, to have compulsory process for obtaining them in their favor, to have the assistance of counsel in their defense, and shall be at liberty to speak for themselves; nor shall they be deprived of life, liberty, or property, unless by the judgment of their peers, or the law of the land.

Cross References.

Federal guaranties as to criminal proceedings, U.S. Const., Amend. VI.

Federal guaranties as to deprivation of life, liberty, or property, U.S. Const., Amend. V, Amend. XIV, § 1.

Indictments, informations and complaints, § 12-12-1.4 et seq.

Process for defense witnesses, § 12-17-8 .

Public defender, § 12-15-1 et seq.

Right to speedy trial, § 12-13-7 .

Trials in criminal cases, § 12-17-1 et seq.

Law Reviews.

For note, “Erosion of the Confrontation Clause in the Ocean State: Admitting Declarations of a Decedent Made In Good Faith,” see 1 R.W.U.L. Rev. 137 (1996).

Survey Section: Criminal Law, see 3 R.W.U.L. Rev. 443 (1998).

2001 Survey of Rhode Island Law, see 7 Roger Williams U.L. Rev. 403 (2002).

2002 Survey of Rhode Island Law, see 8 Roger Williams U.L. Rev. 421 (2003).

2006 Survey of Rhode Island Law: Case: Criminal Law: State v. Snell, 892 A.2d 108 (R.I. 2006), see 12 Roger Williams U. L. Rev. 558 (2007).

For note and comment, Know Your Client: The Mundane Case of Wiggins v. Smith, see 10 Roger Williams U. L. Rev. 581 (2005).

Philip Primeau, 2019 Survey: State v. Roscoe, 25 Roger Williams U. L. Rev. 583 (2020).

Comparative Provisions.

Rights of accused:

Conn. 1965 Const., art. First, § 8.

Mass. Const. Pt. 1, Art. 12.

NOTES TO DECISIONS

In General.

This section is based upon the following provision contained in Magna Charta: “No freemen shall be taken, or imprisoned, or disseized, or outlawed, or banished, or in any way destroyed; nor will we pass upon him, or send upon him, unless by legal judgment of his peers, or by the law of the land.” Henry v. Cherry & Webb, 30 R.I. 13 , 73 A. 97, 1909 R.I. LEXIS 1 (1909).

This section requires no greater certainty in criminal pleading than did the common law, and perhaps less. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916); State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

Sections 7, 10, and 15 of this article should be read together to determine the constitutional guaranties to one accused of a capital or infamous crime. In re Opinion to Governor, 62 R.I. 200 , 4 A.2d 487, 1939 R.I. LEXIS 17 (1939).

Before the 1986 amendment to Art. I, § 2, the Rhode Island Constitution contained only a criminal due process provision, R.I. Const., Art. I, § 10 , and did not contain a due process clause applicable to civil actions. Kelly v. Marcantonio, 678 A.2d 873, 1996 R.I. LEXIS 187 (R.I. 1996) (although there were some contrary pre-1986 decisions that applied Art. 1, § 10 in civil cases, see, e.g., Reynolds v. Randall, 12 R.I. 522 , 1880 R.I. LEXIS 16 (1880); Carr v. Brown, 20 R.I. 215 , 38 A. 9, 1897 R.I. LEXIS 90 (1897)).

Assistance of Counsel.

Petitioner was not deprived of a fair trial in appellate proceedings by denial of the right to have public defenders appear for him where petitioner was not indigent, was of above average intelligence, had a broad knowledge of criminal proceedings, and refused to engage counsel of his own. Ex parte Lee, 123 F. Supp. 439, 1954 U.S. Dist. LEXIS 3031 (D.R.I.), aff'd, 217 F.2d 647, 1954 U.S. App. LEXIS 3177 (1st Cir. 1954).

Motion to suppress admission of guilt on the ground that the defendant was denied his constitutional right to counsel unless he made such admission was properly overruled since the defendant has the opportunity to object to the admission of his confession at the trial. State v. Olivieri, 86 R.I. 211 , 133 A.2d 767, 1957 R.I. LEXIS 78 (1957).

It cannot be said that the petitioner was denied counsel even if he assumed that he had a right to counsel at the time of being given a deferred sentence, where it appeared that at the time of hearing his counsel of record being in the South another attorney appeared for him and upon the court stating it would hear counsel to the extent of the penalty to be imposed, it does not appear that counsel spoke in petitioner’s behalf but said attorney had requested a continuance which was denied. Powers v. Langlois, 90 R.I. 45 , 153 A.2d 535, 1959 R.I. LEXIS 109 (1959), cert. denied, 362 U.S. 905, 80 S. Ct. 615, 4 L. Ed. 2d 556, 1960 U.S. LEXIS 1585 (1960).

Petitioner’s contention that his constitutional rights were violated when the superior court accepted his plea of nolo contendere to indictment without benefit of counsel was not established by a preponderance of the evidence showing that he did not intelligently and understandingly waive his right to counsel, there being no claim made by petitioner that he was not advised of his right to have counsel nor does he allege he requested or was denied the opportunity to engage counsel. Hanley v. Langlois, 93 R.I. 309 , 175 A.2d 182, 1961 R.I. LEXIS 109 (1961), cert. denied, 368 U.S. 1002, 82 S. Ct. 632, 7 L. Ed. 2d 540, 1962 U.S. LEXIS 1938 (1962).

The ruling of the justice of the superior court that the petitioner must appear in person to plead to the indictments was not a ruling that the petitioner could not have the assistance of counsel, therefore there was no merit in his contention that the act of the court deprived him of his constitutional right to have the assistance of counsel in his defense. Suitor v. State, 95 R.I. 469 , 187 A.2d 926, 1963 R.I. LEXIS 24 (1963).

An indigent charged with a misdemeanor for which he could be imprisoned for more than six months is entitled to counsel supplied by the court and to be informed of this right upon arraignment. State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

Consistent with the constitutional fair-play doctrine, a trial court should suppress all evidence from pretrial confrontation made without benefit of attending counsel. State v. Grenier, 112 R.I. 498 , 313 A.2d 661, 1973 R.I. LEXIS 1012 (1973).

There is no constitutionally protected right to counsel at the moment of decision concerning the taking of the breathalyzer test. Dunn v. Petit, 120 R.I. 486 , 388 A.2d 809, 1978 R.I. LEXIS 693 (1978).

The right to counsel first arises after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment. State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979).

Where a lineup took place shortly after the commission of the crime, well before the initiation of any former judicial proceedings, defendant had no right to counsel. State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979).

A police lineup held three hours after the crime was not a phase of criminal prosecution for the purpose of requiring right to counsel. State v. Delahunt, 121 R.I. 565 , 401 A.2d 1261, 1979 R.I. LEXIS 1872 (1979).

The state constitution provides no right to counsel at a post-arrest photographic display. State v. Edwards, 122 R.I. 228 , 405 A.2d 1161, 1979 R.I. LEXIS 2153 (1979).

Even if the defendant had requested to speak with his aunt or mother prior to interrogation, such requests would not have served to invoke his right to remain silent or his right to counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

The child and his parents in delinquency proceedings must be notified that the child has a right to the assistance of counsel at the proceedings and that, if the family is indigent, counsel will be appointed to represent the child. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

This section does not require assistance of counsel at any stage earlier than its federal counterpart. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

When a suspect is in custody for interrogation purposes, he must be advised that he has a legal right to remain silent and that he may have an attorney present during the interrogation. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Search by courthouse officials of an attorney who has activated a magnetometer, the search of the attorney’s briefcase, and the prohibition against the attorney’s bringing his or her briefcase into the courthouse cell block did not constitute violations of the fourth amendment’s protection against unreasonable searches and seizures nor the effective representation of a client by counsel guaranteed by the Sixth Amendment and this section. Rhode Island Defense Attorneys Ass'n v. Dodd, 463 A.2d 1370, 1983 R.I. LEXIS 1045 (R.I. 1983).

The Rhode Island Constitution requires the appointment of counsel for an indigent defendant if the potential sentence exceeds six months’ imprisonment even in the event that the trial justice predetermines that no prison sentence will be imposed. State v. Medeiros, 535 A.2d 766, 1987 R.I. LEXIS 578 (R.I. 1987).

The question regarding a defendant’s request for a continuance to secure alternate counsel is a matter properly left to the sound discretion of the trial justice. State v. Kennedy, 586 A.2d 1089, 1991 R.I. LEXIS 31 (R.I. 1991).

Although a defendant has an absolute right to adequate representation, the court also must ensure that cases are processed in an orderly fashion. Counsel cannot be permitted to represent to the court that a defendant is ready for trial and then request a continuance because that defendant is not ready. Such activity would create havoc with the court’s calendar and would constitute a waste of judicial resources. State v. Usenia, 599 A.2d 1026, 1991 R.I. LEXIS 157 (R.I. 1991).

The State of Rhode Island is not required by the Rhode Island Constitution to provide free counsel to indigent persons if the trial court determines that no incarceration will be imposed. In re Advisory Opinion to the Governor, 666 A.2d 813, 1995 R.I. LEXIS 253 (R.I. 1995).

There is no per se conflict of interest when one public defender must argue the incompetence of another public defender from the same office which would result in the denial of a client’s right to counsel. Simpson v. State, 769 A.2d 1257, 2001 R.I. LEXIS 88 (R.I. 2001).

Absent any showing of good cause for a defendant’s repeated refusal to accept the services of competent court-appointed defense counsel, defendant's actions demonstrated clearly the voluntary waiver of his right to counsel and that he was not in any way unconstitutionally forced to proceed pro se; such refusal was equivalent to a voluntary waiver of the right to counsel. State v. Laurence, 848 A.2d 238, 2004 R.I. LEXIS 100 (R.I. 2004).

Defendant’s conviction for sexual assault was reversed where the defendant was denied his right to counsel because his supposed waiver of that right was not established; the court failed to make sure that the record revealed that the defendant’s waiver of his right to counsel was not merely voluntary, but was also knowing and intelligent. The evidence showed that: (1) the defendant did not know that his decision to fire his privately retained attorney just before trial would be construed as a waiver of his right to counsel; (2) he was denied a continuance to seek new counsel; (3) the court rebuffed the prosecutor’s suggestion that the court inquire into defendant’s ability to represent himself; and (4) the defendant strenuously objected to proceeding to trial on a pro se basis, even with standby counsel, and he insisted that he was not acting as his own attorney. State v. Bluitt, 850 A.2d 83, 2004 R.I. LEXIS 106 (R.I. 2004).

Defendant was not entitled to continuance of a probation violation hearing as his request for counsel’s discharge had been rejected 11 days prior and defendant had not taken any steps to engage new counsel; the full panoply of rights afforded to a defendant at a criminal trial were not available at a violation hearing including the right to a continuance in order to secure counsel of his own choice. State v. Goncalves, 941 A.2d 842, 2008 R.I. LEXIS 19 (R.I. 2008).

Where a defendant voluntarily waived the right to counsel, the defendant’s revocation of the waiver of counsel did not require the appointment of counsel since the defendant requested counsel on the first day of trial for purposes of further undue delay. State v. Eddy, 68 A.3d 1089, 2013 R.I. LEXIS 116 (R.I. 2013).

Where a pro se defendant chose to be absent from the defendant’s trial, neither federal nor state constitutional provisions for assistance of counsel required appointment of counsel in the absence of the defendant in view of the voluntary nature of the absence. State v. Eddy, 68 A.3d 1089, 2013 R.I. LEXIS 116 (R.I. 2013).

— Effectiveness.

A defendant is not prejudiced by trial counsel’s failure to object with specificity to a first-degree murder jury instruction, even though a second-degree murder instruction is not warranted, where there is no reasonable probability on the evidence presented that the jury will find the defendant guilty of second-degree murder. Tarvis v. Moran, 551 A.2d 699, 1988 R.I. LEXIS 154 (R.I. 1988).

Because counsel’s decision not to subpoena certain medical records was a tactical decision made after what appeared to have been thoughtful consideration, the trial court properly denied defendant’s R.I. Gen. Laws tit. 10, ch. 9.1 application for postconviction relief based on ineffective assistance of counsel. Lyons v. State, 880 A.2d 839, 2005 R.I. LEXIS 174 (R.I. 2005).

Inmate’s counsel was not ineffective for failing to object when the State presented a witness it had not disclosed during discovery, failing to object to the admission of the sex assault victim’s medical records, and failing to advise the inmate not to testify where counsel denied these charges and the victim’s testimony was sufficient to support a conviction without this evidence. Bryant v. Wall, 896 A.2d 704, 2006 R.I. LEXIS 70 (R.I. 2006).

Application for postconviction relief, under R.I. Gen. Laws § 10-9.1-1 , was properly denied because the applicant’s claim of ineffective assistance of counsel was without merit where: (1) there was an eminently rational basis for concluding that the applicant understood the consequences of pleading guilty and that he did not do so under force or coercion because the applicant stated, under oath, that he had discussed the agreement with his attorney prior to entering his plea and that he had no difficulty understanding the implications of his guilty plea; (2) the applicant’s attorney conducted an extensive investigation of the case and interviewed several relevant witnesses; (3) the attorney met with the applicant approximately fifteen times in person, and the two conferred numerous times by telephone and by exchange of written correspondence; and (4) in view of the evidence that the State had presented and in view of the real possibility that his client might receive the harshest possible penalty permitted under Rhode Island law, the attorney’s advice to his client that he plead to a negotiated sentence was well within the acceptable range of competence. Gonder v. State, 935 A.2d 82, 2007 R.I. LEXIS 110 (R.I. 2007).

Applicant’s petition for postconviction relief was properly denied because the applicant failed to sustain his burden of proving that his attorney, who was a seasoned and respected trial lawyer, did not provide an adequate defense and failed to undertake reasonable efforts on the applicant’s behalf. Azevedo v. State, 945 A.2d 335, 2008 R.I. LEXIS 49 (R.I. 2008).

Because at the time of the appeal from the judgment of conviction it was reasonable for defendant’s counsel to conclude that the trial justice’s decision to close the courtroom for a child witness’ testimony was not a strong issue for appeal, and since defendant’s counsel made a considered tactical decision not to object to the amended indictment, there was no ineffective counsel requiring postconviction relief. Chalk v. State, 949 A.2d 395, 2008 R.I. LEXIS 76 (R.I. 2008), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

When analyzing counsel’s performance under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), defendant did not meet his burden of proving that counsel’s performance was deficient. Therefore, in a R.I. Gen. Laws § 10-9.1-1(a)(1) motion for postconviction relief, there was no need to address whether counsel’s representation was deficient in the context of U.S. Const. amend. VI and R.I. Const. art. 1, § 10 . Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

A hearing justice erred when she granted an application for postconviction relief based on ineffective assistance of counsel because of counsel’s failure to object, under R.I. Gen. Laws § 9-17-23 , to certain portions of pastors’ testimony. The clergy privilege did not apply to a pastor who was not acting in that capacity; even if counsel was deficient by not raising the privilege with respect to portions of another pastor’s testimony, there was ample evidence sufficient for a jury to convict the applicant. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Given that a court on direct appeal found a bolstering issue to be without merit, counsel’s failure to specify that his objection was based on impermissible bolstering was not ineffective assistance because no prejudice could have resulted from such an omission. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

There was nothing in the record that allowed a court to conclude that counsel’s failure to compel production of a pastor’s notes prejudiced a postconviction relief applicant in any way; the notes never were produced, even at the postconviction-relief proceeding, and the hearing justice’s supposition that the notes may have been critical material was insufficient to demonstrate the necessary prejudice to the applicant that was needed to meet Strickland’s second prong. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Applicant for postconviction relief failed to meet his burden of proving by a preponderance of the evidence that his application should have been granted; he never presented any evidence concerning his counsel’s failure to object to a pastor’s testimony as to the pastor’s status as an expert witness—the pastor had testified as to his counseling sessions with the applicant and that the pastor had dealt with a lot of sex offenders. Furthermore, even if the applicant had presented some evidence on this issue and as a result that court were to conclude that counsel was deficient in this regard, there was no evidence that the applicant was prejudiced by this deficiency because there was other compelling evidence of the applicant’s guilt beyond a reasonable doubt. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Even if a reviewing court agreed with a postconviction hearing justice’s declaration that it was unthinkable to elicit testimony from an applicant’s daughter that she did not believe that the victim told her that the applicant molested the victim and that the daughter did not believe the victim, such a decision did not justify a finding of ineffective assistance of counsel. The claim lacked merit because eliciting the testimony was trial strategy; counsel attempted to cast doubt on the victim’s credibility by offering the daughter’s testimony. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Hearing justice erred in finding that counsel was deficient for failing to review copies of discovery motions or police reports prior to trial. Both the postconviction applicant and counsel testified that counsel reviewed the discovery materials with the applicant. Brown v. State, 964 A.2d 516, 2009 R.I. LEXIS 16 (R.I. 2009), overruled, Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

Trial court properly denied defendant’s post-conviction petition as defendant had failed to overcome the strong presumption that his counsel’s performance was reasonably professional, in that counsel testified that he first learned of the traffic stop, which would provide an alibi for defendant in his murder case, just before trial, two years into his representation of defendant, and that, because no detail surrounding the stop were provided and because defendant had waited so long to provide him with this information, counsel refrained from pursuing an investigation and from seeking a continuance. The ever-shifting nature of defendant’s story served to confirm the hearing justice’s conclusion that the information about the traffic stop was withheld and disclosed only when defendant thought he could safely do so and discredited the testimony of defendant and his wife that they discussed the stop with the attorney in the early stages of his representation. Hazard v. State, 968 A.2d 886, 2009 R.I. LEXIS 39 (R.I. 2009).

Post-conviction relief (PCR) applicant’s claim of ineffective assistance of counsel failed as the PCR application did not show that the applicant was prejudiced by any asserted deficiency as there was overwhelming evidence that the applicant was guilty of first-degree murder. Otero v. State, 996 A.2d 667, 2010 R.I. LEXIS 94 (R.I. 2010).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to uncover the State’s alleged misconduct with respect to a witness’s testimony; no R.I. Super. Ct. R. Crim. P. 16 or Brady violation occurred in regard to arrest photographs, and the hearing justice repeatedly made note of trial counsel’s effectiveness. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Superior court did not err in denying an applicant’s petition for postconviction relief because the applicant did not receive ineffective assistance of counsel due to trial counsel’s failure to elicit evidence suggesting that the police later found the gun used as the murder weapon in the hands of another criminal; there was no evidence of any misconduct by the State for trial counsel to ‘uncover,‘ and trial counsel’s failure to present evidence of the whereabouts of the gun months after the crime did not prejudice the applicant because there was no reasonable probability that the jury would have returned with a different verdict. Spratt v. State, 41 A.3d 984, 2012 R.I. LEXIS 45 (R.I. 2012).

Applicant’s claim of ineffective assistance of counsel failed because assuming arguendo that the prosecutor improperly vouched for an accomplice’s truthfulness during closing argument by referring to his promise in his plea agreement to testify truthfully, the applicant did not establish that his counsel’s failure to object or to request a cautionary instruction was objectively unreasonable or that the applicant was prejudiced by the prosecutor’s single reference to the plea bargain. Jaiman v. State, 55 A.3d 224, 2012 R.I. LEXIS 137 (R.I. 2012).

Where a defendant voluntarily waived the right to counsel, the defendant’s revocation of the waiver of counsel did not require the appointment of counsel since the defendant requested counsel on the first day of trial for purposes of further undue delay. State v. Eddy, 68 A.3d 1089, 2013 R.I. LEXIS 116 (R.I. 2013).

Trial counsel was not ineffective for failing to properly cross-examine witnesses about the complainant’s motive to lie because counsel did not know the specifics of the ongoing animosity between the families, and it was reasonable to not pursue the issue any further; trial counsel examined the complainant for any potential influence and argued that issue to the jury, and thus, trial counsel was not constitutionally deficient with respect to the complainant’s motive to lie. Merida v. State, 93 A.3d 545, 2014 R.I. LEXIS 106 (R.I. 2014).

Because a doctor’s conclusion was equivocal, and the expert advice that trial counsel received did not contradict it, trial counsel’s performance was not constitutionally deficient based on counsel’s decision to not present a medical expert to testify; the trial court did not err in concluding that it was a reasonable tactical decision to fail to request a continuance in light of the fact that the doctor’s testimony was equivocal. Merida v. State, 93 A.3d 545, 2014 R.I. LEXIS 106 (R.I. 2014).

Farce-and-mockery standard for ineffective assistance of counsel claims has no place in assessing such claims after Strickland because (1) the standard has been rejected in favor of a standard requiring reasonably competent or effective assistance, (2) nothing in Strickland purports to revive the standard, and (3) the standard is rooted in the due process clause of U.S. Const. amend. V, while claims of ineffective assistance of counsel are grounded in the guarantee of the assistance of counsel contained in U.S. Const. amend. VI and R.I. Const. Decl. Rights art. 1, § 10 , so, henceforth, claims of ineffective assistance of counsel—whether the attorney is privately retained or court-appointed—shall continue to be decided by reference to the familiar performance and prejudice prongs of the Strickland standard. Reyes v. State, 141 A.3d 644, 2016 R.I. LEXIS 99 (R.I. 2016).

— Pro Se Representation.

The trial justice erred in not allowing defendant to proceed pro se, where defendant acknowledged that he was ill-equipped to defend himself but nevertheless maintained his desire to proceed pro se. State v. Kennedy, 586 A.2d 1089, 1991 R.I. LEXIS 31 (R.I. 1991).

— Substitution.

The trial justice did not abuse her discretion in refusing to allow substitution of counsel on the eve of trial, where the defendant had been allowed to substitute court-appointed counsel once previously, where at no time was the defendant’s preferred counsel in court with an appearance ready to proceed with the case, and where a court-appointed attorney was prepared and ready to proceed with jury selection and the trial. State v. Austin, 642 A.2d 673, 1994 R.I. LEXIS 170 (R.I. 1994).

Trial court did not abuse its discretion in denying defendant’s motion for a continuance to secure other counsel as defendant established no exceptional circumstances to constitute good cause to discharge his lawyer just before the trial was to begin. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

Conduct of Trial Court.

Charge of trial court which stated that action of defense counsel in interviewing state witness prior to trial “was an unfortunate circumstance to say the least” violated the right of the defendant to ascertain how witnesses for the state would testify, and any misconduct of counsel should be left solely to the court for discipline and not to the jury in determining guilt or innocence. State v. Papa, 32 R.I. 453 , 80 A. 12, 1911 R.I. LEXIS 63 (1911).

Confrontation.

The provisions of P.S. 1882, ch. 80, § 3 [§ 11-30-5 ] permitting persons to testify that the reputation of a place was bad, not of their own knowledge but by hearing others say so, does not violate the confrontation provision of this section, as the witnesses who must confront the accused are the persons testifying against him, not those making or repeating statements about him. State v. Waldron, 16 R.I. 191 , 14 A. 847, 1888 R.I. LEXIS 29 (1888).

Upon demonstration that a person in custody of the state might or would be a witness at trial and that his testimony would be relevant on the question of guilt or innocence, defendant had a pretrial right to interview such consenting witness. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973); State v. Anil, 417 A.2d 1367, 1980 R.I. LEXIS 1718 (R.I. 1980).

Furnishing defendant with a record of a witness’ testimony at a bail hearing plus a transcript of that witness’s grand jury testimony before cross-examination obviated the error of the trial justice in denying defendant’s motion to interview a witness in the custody of the state prior to the trial. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

Where the confession of a joint defendant who did not take the stand was introduced in evidence after the deletion of all references to the other two defendants, the court held that, since the connection of the two defendants with the confessing defendant was established by the independent testimony of two witnesses who were fully cross-examined, their constitutional right to confront witnesses under this section and U.S. Const., Amend. 14, was not infringed. State v. Wilbur, 115 R.I. 7 , 339 A.2d 730, 1975 R.I. LEXIS 1111 (1975), overruled in part, State v. Aurgemma, 116 R.I. 425 , 358 A.2d 46, 1976 R.I. LEXIS 1291 (1976).

Statute enacted to protect minors against stigma of disclosure of criminal records is unavailable in instances where defendant’s constitutional right of confrontation and attack upon credibility is withheld. State v. Myers, 115 R.I. 583 , 350 A.2d 611, 1976 R.I. LEXIS 1562 (1976).

Trial judge’s substitution of his personal knowledge drawn from other cases for proof at trial of a drug’s prohibited hallucinogenic character deprived defendant of his right to challenge the identity or expertise of those through whom the judge acquired his knowledge of the drug. State v. Welch, 117 R.I. 107 , 363 A.2d 1356, 1976 R.I. LEXIS 1605 (1976).

In drug case, where defense sought to impeach state witness by showing that she had been charged with prostitution but that the charge later was reduced, defendant’s right to effective cross-examination was not compromised by the exclusion of such evidence, as the defense could not impugn the witness’ moral character without some proof that the reduction of the charge was related to the witness’ decision to testify. State v. Eckhart, 117 R.I. 431 , 367 A.2d 1073, 1977 R.I. LEXIS 1708 (1977).

The scope of cross-examination is subject to the exercise of the trial justice’s sound discretion. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

The exercise of discretion by the trial justice in limiting the scope of cross-examination will not be disturbed except for clear abuse, and then only when such abuse constitutes prejudicial error. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

It is the essence of a fair trial that reasonable latitude be given the cross-examiner. This latitude should include an opportunity for a defendant to establish or reveal possible bias, prejudice, or ulterior motives as they may relate to the case being tried. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

Even though no obligation is imposed upon the court to protect the witness from being discredited by revealing his motivation for testifying, the court does have a duty to protect him from questions that go beyond the proper bounds of cross-examination. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

Questions exceeding the proper limits of cross-examination are those that harass, annoy, or humiliate the witness, or questions that are irrelevant or offer no probative value. Questions of this nature are subject to the control of the trial justice. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

The defense is entitled to show that an accomplice-witness may have good reason to cooperate with the prosecution. This is one reason why it is important that a defendant be allowed to explore the partiality of a witness in order to establish interest, bias, or motive, thereby to discredit the witness and affect the weight of his testimony. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

To completely limit the defense from examining the motive for testifying or the possible bias of an accomplice-witness is clearly an abuse of discretion. The issue in such a case becomes whether defense counsel was afforded an adequate opportunity to bring out considerations relevant to motive or bias. State v. Anthony, 422 A.2d 921, 1980 R.I. LEXIS 1852 (R.I. 1980).

Although the U.S. Supreme Court has ruled that a probationer or a parolee had a right at a revocation hearing to confront and cross-examine witnesses, the right of confrontation is satisfied if the trial justice has determined that the out-of-court declarant is available for cross-examination. State v. Potter, 423 A.2d 67, 1980 R.I. LEXIS 1864 (R.I. 1980).

If the out-of-court declarant is not available for cross-examination, then the trial justice is to make a specific finding that there is just cause for not permitting confrontation before the hearsay testimony is admitted into evidence. State v. Potter, 423 A.2d 67, 1980 R.I. LEXIS 1864 (R.I. 1980).

Not only is the right of cross-examination guaranteed and made applicable to the states by the federal constitution but this section also establishes the right. State v. Byrnes, 433 A.2d 658, 1981 R.I. LEXIS 1235 (R.I. 1981).

Where defendant was charged with the murder of his infant daughter and prior to his trial caused a subpoena duces tecum to be issued to the department for children and their families seeking access to records pertaining to the child and her mother (the state’s principal witness against defendant), defendant’s right to effective cross-examination, guaranteed by U.S. Const., amendments 6 and 14, and by this section, was denied by quashing of subpoena. State v. Anthony, 440 A.2d 736, 1982 R.I. LEXIS 791 (R.I. 1982).

Where cross-examination on the issue of bias of a prosecution witness has been totally precluded by the trial court, the per se error standard applies to review of that decision. State v. DeBarros, 441 A.2d 549, 1982 R.I. LEXIS 810 (R.I. 1982).

A defendant is entitled to cross-examine a witness granted immunity with regard to his bias or interest in testifying on behalf of the state, and this encompasses the nature of the immunity agreement and any additional promises made to or understandings reached with the witness. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Where prosecution witness refused at defendant’s trial to repeat his testimony given against defendant at earlier bail hearing, introduction of earlier testimony at trial was error where defendant had not been allowed at bail hearing to cross-examine witness regarding effect of promise of immunity on witness’ motivation to testify and where defendant cited circumstances affirmatively demonstrating untrustworthiness of the earlier testimony. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

To support a finding that a witness is unavailable due to illness, expert testimony must establish that the witness’ illness makes testifying relatively impossible, not merely inconvenient. State v. Hannagan, 473 A.2d 291, 1984 R.I. LEXIS 484 (R.I. 1984).

Where the sole witness’ credibility was a vital element in establishing defendant’s guilt and where the trial justice precluded the defendant from raising and probing the issues of motive, bias, or prejudice, effectively cutting off defendant’s right to test the witness’ credibility, the defendant’s constitutional right to confrontation was abrogated. State v. Freeman, 473 A.2d 1149, 1984 R.I. LEXIS 479 (R.I. 1984).

Since the purpose of cross-examination is to impeach a witness’ credibility, the general rule that confines the scope of cross-examination to facts brought out during direct examination is inapplicable when the questions are designed either to explain, contradict, or discredit any testimony given by the witness on direct examination or to test his accuracy, memory, veracity, or credibility. State v. Soto, 477 A.2d 945, 1984 R.I. LEXIS 519 (R.I. 1984).

The partiality of a witness may be explored at trial, and is always relevant for the purposes of discrediting a witness and thereby affecting the weight of his testimony; however, this does not permit a defendant to introduce evidence which is irrelevant to showing a witness’ purported bias. State v. Edwards, 478 A.2d 972, 1984 R.I. LEXIS 575 (R.I. 1984).

A per se error rule is applicable to cases in which a trial justice totally precludes cross-examination by defense counsel of the state’s key witness as to his motive or bias. State v. Parillo, 480 A.2d 1349, 1984 R.I. LEXIS 570 (R.I. 1984).

Trial court’s denial of defense motion to examine and introduce medical records of only surviving eyewitness constituted a denial of his right to confrontation. State v. Parillo, 480 A.2d 1349, 1984 R.I. LEXIS 570 (R.I. 1984).

Town’s failure to preserve a sample of defendant’s breath used in breathalyzer test did not violate defendant’s right to confront and cross-examine the evidence against him. State v. Williams, 480 A.2d 1383, 1984 R.I. LEXIS 596 (R.I. 1984).

Defendant’s state and federal constitutional rights to confrontation were not violated by the restriction of defense counsel’s cross-examination of a police officer who was the first to arrive at the scene of the murder where defendant’s purpose in attempting the cross-examination (to highlight the racial overtones of the entire incident) was ultimately served by the admission of other evidence. State v. White, 512 A.2d 1370, 1986 R.I. LEXIS 530 (R.I. 1986).

A criminal defendant’s right to cross-examination is guaranteed by U.S. Const., Amend. 6 and by this section, but, where the trial court allowed sufficient cross-examination to permit the jury fully to consider the question of the witness’ possible bias in favor of the alleged victim, defendant’s right to confrontation was satisfied. State v. Burke, 522 A.2d 725, 1987 R.I. LEXIS 433 (R.I. 1987), limited, State v. DiPetrillo, 922 A.2d 124, 2007 R.I. LEXIS 54 (R.I. 2007).

Where the only evidence defendant was allowed to place before the jury regarding a witness’ mental condition was that he had a “problem” with his memory and defense counsel was not permitted to elicit from the witness for the benefit of the jury the witness’ treatment for premature Alzheimer’s disease and that many other different conditions for which he was being treated, applying the harmless-error analysis to the facts, and particularly those elements of cross-examination that were not permitted concerning witness’ mental disease and the inferences that might be drawn therefrom, the error was not only harmless beyond a reasonable doubt but extremely harmful to the development of defendant’s defense by restricting his ability to attack the credibility of the most important witness presented in support of the charges against him. State v. Manocchio, 523 A.2d 872, 1987 R.I. LEXIS 452 (R.I. 1987).

Trial justice did not abuse his discretion in denying defendant in a murder prosecution the opportunity to cross-examine witnesses as to the collateral matter of another suspect’s activities, where defendant failed to make an offer of proof or to introduce any evidence tending to show that the suspect could have committed the murder for which defendant was being tried. State v. Brennan, 526 A.2d 483, 1987 R.I. LEXIS 507 (R.I. 1987).

Error in restricting cross-examination of an assault victim regarding her alleged threats of suicide was not prejudicial, where the jury was presented with documented evidence that not only impugned her credibility but also supported defendant’s theory that the victim’s injuries were self-inflicted. State v. Carrera, 528 A.2d 331, 1987 R.I. LEXIS 525 (R.I. 1987).

A violation of the right to confrontation is subject to a harmless error analysis. State v. Payano, 528 A.2d 721, 1987 R.I. LEXIS 530 (R.I. 1987).

The denial of an opportunity to cross-examine an adverse witness does not fall into the category of constitutional errors that are automatically deemed prejudicial. State v. Canning, 541 A.2d 457, 1988 R.I. LEXIS 62 (R.I. 1988).

Once sufficient examination has been given to satisfy the right of confrontation, the trial justice has the discretion to determine the proper subjects and scope of inquiry. Appellate review is limited to disturbing the trial justice’s ruling only in those cases wherein he or she has clearly abused his or her reasonable discretion. State v. Canning, 541 A.2d 457, 1988 R.I. LEXIS 62 (R.I. 1988).

It is within the trial justice’s discretion to limit cross-examination once there has been sufficient cross-examination to satisfy the defendant’s right to confrontation. State v. Padula, 551 A.2d 687, 1988 R.I. LEXIS 146 (R.I. 1988); State v. Toole, 640 A.2d 965, 1994 R.I. LEXIS 134 (R.I. 1994).

The defendant has a right to have the department of children and their families (DCF) records relating to a corroborating witness produced pursuant to his right to cross-examination under the confrontation clauses of both the United States and the Rhode Island Constitutions. State v. Kelly, 554 A.2d 632, 1989 R.I. LEXIS 24 (R.I. 1989).

Statutory rebuttable presumption of § 11-37-13.2 that a child 13 or younger is unable to testify before the court without suffering unreasonable and unnecessary mental or emotional harm violates the confrontation clauses of both the federal and Rhode Island Constitutions. State v. Taylor, 562 A.2d 445, 1989 R.I. LEXIS 143 (R.I. 1989).

In a prosecution for sexual assault, admitting videotaped testimony of out-of-state physicians taken while the defendant is absent from the courtroom does not violate the defendant’s constitutional right to confront witnesses, where the defendant voluntarily absents himself and waives his right to confront the witnesses deposed in his absence. State v. Griffin, 567 A.2d 796, 1989 R.I. LEXIS 170 (R.I. 1989).

A state witness, on cross-examination, disclosed his substantial criminal record, including the fact that at the time of his testimony he was on probation and was subject to a deferred sentence. Only when defense counsel attempted to elicit the witness’s understanding of what a deferred sentence entailed did the trial justice sustain the state’s objections. By that point in the cross-examination defendant’s constitutional right to confrontation had been amply satisfied, and the trial justice’s decision to limit questioning could not be considered an abuse of discretion. State v. Powers, 566 A.2d 1298, 1989 R.I. LEXIS 166 (R.I. 1989).

Defendant who declined to challenge witness’ competence and who repeatedly pointed out on cross-examination witness’ history of mental illness was not denied an opportunity for effective cross-examination. State v. Lopez, 583 A.2d 529, 1990 R.I. LEXIS 177 (R.I. 1990).

Unconstitutional restriction of defendant’s right to cross-examine an alleged victim and her husband to determine whether they had fabricated a sexual-assault complaint against defendant in retaliation for his having accused the husband of stealing charitable donations is prejudicial error. State v. Texter, 594 A.2d 376, 1991 R.I. LEXIS 144 (R.I. 1991).

The right of confrontation does not bar the admission of all hearsay evidence. State v. Correia, 600 A.2d 279, 1991 R.I. LEXIS 174 (R.I. 1991).

When an out-of-court statement is offered and the declarant is not available, courts must engage in a case-by-case analysis to determine whether the right of confrontation of the accused is violated. The reliability of the hearsay is determinative of the statement’s admissibility. State v. Correia, 600 A.2d 279, 1991 R.I. LEXIS 174 (R.I. 1991).

The defendant’s right to cross-examine his accusers was violated since the trial court precluded the defendant from cross examining a witness, who placed him at the scene of a burglary, regarding any criminal activities she may have engaged in with her current boyfriend who was also charged with breaking and entering. The evidence was relevant and should have been admitted because it was evidence that tended to make the existence of a motive by the witness to testify more or less probable than it would be without the evidence. State v. Olsen, 610 A.2d 1099, 1992 R.I. LEXIS 123 (R.I. 1992).

The trial justice properly sustained the state’s objection to the defense’s inquiry into the victim-witness’ prior posting of a bond where extensive inquiry was otherwise permitted on his status as an illegal alien, his fraudulent use of an alias, and prosecutorial immunity offers. State v. Tutt, 622 A.2d 459, 1993 R.I. LEXIS 92 (R.I. 1993).

The defendant’s right to be confronted with the witnesses against him was violated where the trial justice improperly refused to allow defendant’s counsel to cross-examine key prosecution witnesses on their motives or biases in testifying for the state. In re Douglas L., 625 A.2d 1357, 1993 R.I. LEXIS 160 (R.I. 1993).

In a murder trial, the trial justice did not err in refusing to permit defense counsel to inquire whether a prosecution witness, who had already been examined to show that he had been indicted for the felony of child molestation, was aware of the penalty for first-degree child molestation. The defendant was provided an adequate opportunity to bring out considerations relevant to motive or bias. State v. Sifuentes, 649 A.2d 500, 1994 R.I. LEXIS 255 (R.I. 1994).

In a prosecution for driving with a suspended license, a driver’s abstract from the Registry of Motor Vehicles was clearly admissible under Rules 901(b)(7) and 902(4) of the Rhode Island Rules of Evidence, and was not excluded under Rule 803(8)(B) because it did not contain information observed by police officers or law-enforcement personnel. Also, the admission of this abstract did not violate the defendant’s right to confrontation under the United States and Rhode Island Constitutions by allowing, in effect, New York officials to testify about violations in that state. The report did not contain any statements by New York officials, only a notation of the New York violation. State v. D'Alo, 649 A.2d 498, 1994 R.I. LEXIS 256 (R.I. 1994).

The trial court did not commit an abuse of discretion amounting to prejudicial error by limiting the defendant’s cross-examination of a police detective who received information from another officer. Requiring the officer from whom the detective heard the information to be present increased reliability and was within the court’s discretion, particularly when the detective had no first-hand knowledge of the information. State v. Tempest, 651 A.2d 1198, 1995 R.I. LEXIS 2 (R.I. 1995).

The defendant’s right to confrontation was improperly limited since the defense counsel was prohibited from questioning the alleged sexual abuse victim about the allegations that she made against other men to the Department of Children, Youth and Families investigator, and therefore, the defense was denied the opportunity to cross-examine victim fully for the purpose of presenting to the jury its theory that she had a pattern of accusing her mother’s boyfriends of sexually assaulting her. State v. Pettiway, 657 A.2d 161, 1995 R.I. LEXIS 103 (R.I. 1995).

In a violation of probation hearing, there was no abuse of discretion when the hearing court found that the defendant’s minor son was psychologically unavailable to testify for or against the defendant. The detrimental effects of forcing the son to testify for the defendant and then face cross-examination would equal those of testifying on behalf of the state. State v. Casiano, 667 A.2d 1233, 1995 R.I. LEXIS 255 (R.I. 1995).

Five factors that are considered in making a determination whether a restriction on cross-examination constitutes harmless error include: 1) the importance of a witness’ testimony in the prosecution’s case; 2) whether the testimony is cumulative; 3) the presence or absence of evidence corroborating or contradicting the testimony of a witness on material points; 4) the extent of cross-examination otherwise permitted; and 5) the overall strength of the prosecution’s case. State v. Wiley, 676 A.2d 321, 1996 R.I. LEXIS 140 (R.I. 1996).

The defendant’s constitutional rights to confrontation were not violated by the restriction of the defense counsel’s cross-examination since the trial court allowed the counsel sufficient latitude to establish a defense theory and show witness bias, and the counsel’s further exploration would have been simply cumulative. State v. Wiley, 676 A.2d 321, 1996 R.I. LEXIS 140 (R.I. 1996).

There was no abuse of discretion in the trial court’s ruling limiting the cross-examination of a witness in a criminal trial about what she might have believed regarding her sister’s civil action under the Criminal Injuries Compensation Act, Chapter 25 of Title 12, of which the witness testified she was unaware. State v. Doctor, 690 A.2d 321, 1997 R.I. LEXIS 47 (R.I. 1997).

Decision of trial court to exclude evidence sought to be introduced to show bias in a witness was proper where the evidence sought to be introduced concerned the value of the defendant’s marital property; the defendant was not competent to testify to the market value of the property. State v. Cote, 691 A.2d 537, 1997 R.I. LEXIS 58 (R.I. 1997).

The right to cross examination is not unlimited. Accordingly, since there was no evidence whatsoever that the witness had taken drugs on the day of the incident, or at any time thereabouts, such that the drug use would have affected the witness’ ability to observe and recall accurately the events of the day, there was no error in the trial court’s ruling precluding the introduction of the witness’ medical history referencing drug use. State v. Gasparico, 694 A.2d 1204, 1997 R.I. LEXIS 193 (R.I. 1997).

Constitutional safeguards regarding confrontation of witnesses are satisfied once sufficient cross-examination has been allowed, and any further cross-examination is left within the sound discretion of the trial justice. State v. Hazard, 745 A.2d 748, 2000 R.I. LEXIS 25 (R.I. 2000).

A trial justice has an obligation to restrict laborious and repetitious cross-examination. State v. Hazard, 745 A.2d 748, 2000 R.I. LEXIS 25 (R.I. 2000).

A defendant ought to be granted wide latitude by the trial court when inquiring into the possible bias, motive, or prejudice of a witness, including the witness’s subjective expectations. State v. Bustamante, 756 A.2d 758, 2000 R.I. LEXIS 178 (R.I. 2000).

Because the contested statements were clearly against the penal interest of the declarant coconspirator, and because the circumstances surrounding the statements and other corroborating evidence provided indicia of reliability, the statements were properly admitted although the declarant was unavailable for cross-examination. State v. Pacheco, 763 A.2d 971, 2001 R.I. LEXIS 3 (R.I. 2001).

There was no denial of confrontation rights in the case of a defendant charged with sexually assaulting his estranged wife who unsuccessfully sought to introduce evidence of her prior paternity proceedings against several men, her statements many years earlier that she had been raped as a child, and her mental health history; the defendant failed to explain how any of this evidence was relevant to the issue of his wife’s credibility. State v. Dorsey, 783 A.2d 947, 2001 R.I. LEXIS 230 (R.I. 2001).

Former recorded testimony of a State’s witness was properly admitted at defendant’s second trial and did not violate the Confrontation Clause or R.I. Const. art. I, § 10 where: (1) defendant cross-examined the witness at defendant’s first trial; (2) the State made a good faith effort to procure the witness’s attendance at the second trial; and (3) the State was not required to notify the witness that his attendance at a second trial might be required. State v. Sosa, 839 A.2d 519, 2003 R.I. LEXIS 232 (R.I. 2003).

When defendant’s and codefendant’s trials were severed under Bruton and a detective read the codefendant’s statement to the jury, this denied defendant his right to confrontation under the Sixth Amendment and R.I. Const. art. I, § 10 . The error was not harmless because the detective had subsequently testified that after getting the codefendant’s statement, he prepared to arrest defendant. State v. Alston, 900 A.2d 1212, 2006 R.I. LEXIS 134 (R.I. 2006).

In defendant’s trial for conspiracy to possess marijuana and conspiracy to possess marijuana with intent to distribute, defendant’s right to confrontation under U.S. Const. Amend. VI and R.I. Const. art. 1, § 10 was not violated when the trial court did not permit defendant to question a state’s witness about the witness’s failure to declare income from drug dealing on his income tax returns because the witness was cross-examined extensively about the lenient sentence he received in exchange for his testimony, and about his lucrative drug dealing, and the witness admitted that most of his income came from selling marijuana. Defendant was afforded ample opportunity to cross-examine the witness about his drug dealing as well as his cooperation agreement; therefore, even if the trial justice did err in precluding questioning about the witness’s potential income tax evasion, that error would have been harmless. State v. Stansell, 909 A.2d 505, 2006 R.I. LEXIS 164 (R.I. 2006).

Limitation on defendant’s cross-examination of a corrections officer regarding a complaint defendant filed alleging that defendant suffered personal injuries at the hands of corrections officers did not violate defendant’s rights under the Sixth Amendment or R.I. Const. art. 1, § 10 , because the officer had no personal knowledge of the complaint, which defendant believed had been served on the officer. State v. Lyons, 924 A.2d 756, 2007 R.I. LEXIS 73 (R.I. 2007).

Where a witness invoked the right not to testify under U.S. Const. amend. V and then disappeared from the courtroom and was deemed “unavailable” pursuant to R.I. R. Evid. 804 (a)(5), the trial court did not abuse its discretion or violate defendant’s confrontation rights under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 by reading to the jury prior recorded testimony under Rule 804(b)(1) provided by the witness in a matter that had resulted in a mistrial. State v. Ramirez, 936 A.2d 1254, 2007 R.I. LEXIS 130 (R.I. 2007).

Where a child’s father caught defendant molesting the child, defendant’s first-degree child molestation conviction was upheld because the admission of the recording of the father’s 911 call did not violate the Confrontation Clause since the 911 call was not testimonial in nature. State v. Bergevine, 942 A.2d 974, 2008 R.I. LEXIS 25 (R.I. 2008).

Defendant’s Confrontation Clause rights were not violated when a jury was allowed to hear recorded statements that defendant made to a cellmate who died before defendant’s trial for murder, first-degree robbery, and other offenses. The cellmate’s statements were not offered to prove the truth of the matters asserted, but were offered to provide context showing defendant’s knowledge of the crimes. State v. DeJesus, 947 A.2d 873, 2008 R.I. LEXIS 64 (R.I. 2008).

In defendant’s prosecution for the murder of his estranged wife’s boyfriend, defendant’s right to confrontation was not violated under U.S. Const. amend. VI or R.I. Const. art. I, § 10 when the trial court permitted the State to read into evidence significant portions of testimony given by the wife at defendant’s probation violation hearing as defendant had a meaningful opportunity to cross-examine the wife at the hearing, which was shown by the fact that the hearing officer had found the wife’s testimony to be inconsistent. State v. Gautier, 950 A.2d 400, 2008 R.I. LEXIS 89 (R.I. 2008).

Trial court did not improperly limit defendant’s cross examination of the 12-year-old victim of defendant’s alleged molestation or of the 18-year-old niece who defendant allegedly molested between 8 and 12 years before trial and, thus, did not violate defendant’s right to confront witnesses in violation of U.S. Const. amend. VI and R.I. Const. art. I, § 10 . The trial court properly limited the cross-examination, especially since defendant was challenging their general credibility and had held a voir dire of the niece pursuant to R.I. R. Evid. 608 (b) for the purpose of exploring an allegation of theft regarding her, and defendant did not pursue a theory or motive or bias against those two witnesses. State v. Merida, 960 A.2d 228, 2008 R.I. LEXIS 118 (R.I. 2008).

Defendant’s right to confrontation under R.I. Const. art. I, § 10 was not violated by the trial justice’s restricting of defense counsel’s cross-examination of the victim on a collateral matter. State v. Albanese, 970 A.2d 1215, 2009 R.I. LEXIS 59 (R.I. 2009).

Trial justice limited defendant’s cross-examination pursuant to R.I. R. Evid. 611 (b) of the mothers of his sexual assault victims in an appropriate manner, as defendant’s questions were clearly outside the limited scope of direct examination; accordingly, his confrontation rights under U.S. Const. amend. VI and R.I. Const. art. I, § 10 were not violated. State v. Rivera, 987 A.2d 887, 2010 R.I. LEXIS 24 (R.I. 2010).

Defendant’s claim that the trial court erred in limiting his examination of two witnesses and frustrated his attempt to proceed on a theory that the two witnesses, family members, were acting in collusion in order to have him falsely accused lacked merit, because nothing was produced that would have tended to show that the complaining witnesses were affected or influenced in any way by the two witnesses. State v. Dubois, 36 A.3d 191, 2012 R.I. LEXIS 19 (R.I. 2012).

Where defendant had ample opportunity to confront the witness who undertook the critical stage of a DNA analysis, supervised over and had personal knowledge of the protocols and process of all stages involved in the DNA testing, reviewed the notes and data produced by all previous analysts, and testified to the controls employed by the testing lab to safeguard against the possibility of testing errors, the right to confrontation under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 was satisfied. State v. Lopez, 45 A.3d 1, 2012 R.I. LEXIS 91 (R.I. 2012).

Trial justice did not abuse his discretion in sustaining the State’s objection to defendant’s asking a friend of defendant whether, after speaking to police, she believed defendant was a suspect, because defendant made no offer of proof that the cross-examination he intended to embark on would lead to relevant evidence. State v. Alston, 47 A.3d 234, 2012 R.I. LEXIS 94 (R.I. 2012).

Under the “raise or waive” rule, defense counsel’s objection to a witness’s hearsay testimony without explanation was insufficient to preserve the confrontation clause issue on appeal, and the narrow exception to the “raise or waive” rule was inapplicable because defendant’s constitutional argument was not novel at the time the witness testified. State v. Moten, 64 A.3d 1232, 2013 R.I. LEXIS 81 (R.I. 2013).

Because defendant conducted an extensive cross-examination of the victim and was not barred from exploring the issues of motive, bias, or prejudice in the victim’s testimony, and because the trial justice allowed testimony as to the couple’s relationship, and their disagreements over families, household work, and finances, which the couple worked on at therapy, the trial justice did not abuse her considerable discretion or prejudice defendant by excluding certain counseling records that were not relevant, and would not help determine factually what happened on the night of the alleged assault; thus, defendant’s rights to confrontation and to cross-examination were not violated. State v. Van Dongen, 132 A.3d 1070, 2016 R.I. LEXIS 31 (R.I. 2016).

Trial court did not abuse its discretion in preventing defendant from asking the fingerprint expert about inaccuracies because the impact of a particular FBI investigation on the entire field of fingerprint analysis was irrelevant to the prosecution; defendant’s right to cross-examination was not violated because defendant was afforded substantial leeway to question the expert about the overall reliability of fingerprint evidence and the procedures the expert followed. State v. Isom, 135 A.3d 1210, 2016 R.I. LEXIS 37 (R.I. 2016).

Defendant was not deprived of his constitutional rights to confront and cross-examine the complaining witness by the exclusion of evidence of the prior sexual-abuse allegations the complaining witness purportedly made against her biological father when she was five years old. While both allegations were of sexual misconduct against father figures, the prior accusations defense counsel sought to introduce were different from the specific allegations against defendant of sexual penetration and the taking of nude photographs; and defense counsel had the opportunity to thoroughly attack the complaining witness’s credibility as defendant was afforded an opportunity to inquire into her purported motive to bring false accusations against defendant. State v. Danis, 182 A.3d 36, 2018 R.I. LEXIS 38 (R.I. 2018).

Introduction of out-of-court statements of deceased declarants, both through a retired police detective’s testimony and through the closing argument of the prosecutor, violated the Confrontation Clause; although the actual words spoken by the deceased witnesses were not themselves elicited at trial, the content of their statements—that the deceased murder victim had not been involved in a relationship at the time of the victim’s death—was readily inferred. State v. Roscoe, 198 A.3d 1232, 2019 R.I. LEXIS 7 (R.I. 2019).

In a case in which defendant was convicted of two counts of first-degree robbery and one count of conspiracy to commit robbery and contended that his constitutional right to confront witnesses was violated, the admission of an out-of-court statement made by an alleged coconspirator was harmless beyond a reasonable doubt. Three witnesses testified at trial that it was defendant who wielded a firearm during the robberies; and the statement attributed to the coconspirator by the testifying police officer was relatively unimportant in light of the testimony of the three witnesses who claimed that defendant had used the gun, and it was wholly cumulative of the overwhelming evidence of defendant’s guilt that was presented by the State. State v. Sanchez, 206 A.3d 115, 2019 R.I. LEXIS 59 (R.I. 2019).

— Confidential Communications.

A proposal absolutely barring from evidence at trial confidential communications between a sexual assault counselor and a sexual assault victim violated the right of an accused to confront his or her accusers, to obtain compulsory process, and to offer testimony. Advisory Opinion to House of Representatives, 469 A.2d 1161, 1983 R.I. LEXIS 1110 (R.I. 1983).

In a prosecution for sexual abuse, the trial court did not err in refusing to grant the defendant broad access to the victim’s psychotherapy records on the alleged grounds that the victim has waived her psychotherapist-patient privilege by testifying about her discussions of the abuse with her doctor. The trial court’s in camera review of the privileged information struck the requisite balance between the defendant’s constitutional right to effective cross-examination and the victim’s right to confidentiality. A determination by the trial court that the victim’s psychotherapy records were irrelevant rendered unnecessary any consideration of whether the psychotherapist-patient privilege had been waived. State v. Kholi, 672 A.2d 429, 1996 R.I. LEXIS 41 (R.I. 1996).

In a prosecution for child molestation sexual assault, denial of defendant’s request for copies of the victim’s Department of Children, Youth and Families records did not violate his constitutional right to confrontation because in camera inspection of the records by the trial justice adequately protected his rights and properly furthered the victim’s and the state’s interest in shielding confidential information. State v. Holmes, 715 A.2d 576, 1998 R.I. LEXIS 235 (R.I. 1998).

— Cross-Examination, Additional Cases.

The failure of defense counsel to object to an inappropriate question posed by the prosecutor on direct examination did not transmogrify that improper question or its line of inquiry into a proper one for purposes of defense counsel’s cross-examination. State v. Barrett, 768 A.2d 929, 2001 R.I. LEXIS 87 (R.I. 2001).

Trial justice did not abuse his discretion or violate defendants’ constitutional rights under R.I. Const. art. I, § 10 or U.S. Const. amend. VI, in limiting defendants’ cross-examinations of witnesses at trial as the sufficiency of defendants’ cross-examinations was evidenced by the fact that they were able to solicit from the witnesses numerous admissions of their uncertainty about several details of the fight which led to the victim’s death. State v. DePina, 810 A.2d 768, 2002 R.I. LEXIS 221 (R.I. 2002).

State and federal rights of confrontation were not violated by the trial court’s placement of reasonable limits on cross-examination; while defendant had a right to try to show that others could have committed the murder in question, there was no right to engage in pure speculation, and counsel had not backed up these theories with any offer of proof. State v. Wright, 817 A.2d 600, 2003 R.I. LEXIS 26 (R.I. 2003).

Defendant was not impermissibly limited in his right to cross-examine witnesses in his criminal trial pursuant to U.S. Const. amend. VI and R.I. Const. Decl. Rights art. I, § 10 , where he was given “reasonable latitude” to make his relevant inquiries; his requests to cross-examine were either irrelevant and immaterial. State v. Werner, 831 A.2d 183, 2003 R.I. LEXIS 145 (R.I. 2003), cert. denied, 540 U.S. 1123, 124 S. Ct. 1083, 157 L. Ed. 2d 921, 2004 U.S. LEXIS 356 (2004).

Limitations placed on defendant’s cross-examination of police did not deny defendant’s confrontation rights; the trial court merely refused to permit an in-court re-enactment of the arrest. State v. Fisher, 844 A.2d 112, 2004 R.I. LEXIS 55 (R.I. 2004).

Improper denial of an opportunity to cross-examine a witness on a particular matter does not fall into the category of constitutional errors that are automatically deemed prejudicial; if the error is harmless, the conviction need not be set aside. State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

In determining whether an erroneous limitation on cross-examination is harmless, an appellate court considers: (1) the importance of the witness’s testimony to the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradictory evidence; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

Right to cross-examination does not include an unfettered license to ask any question that a defendant may desire; a trial justice may properly act within his or her discretion to restrict unduly harassing or repetitive interrogation. State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

The court may limit a proposed line of questioning if it is not relevant to an issue, or if the proposed questioning, even if relevant, is outweighed by any of the reasons prescribed in R.I. R. Evid. 403 . State v. D'Alessio, 848 A.2d 1118, 2004 R.I. LEXIS 70 (R.I. 2004).

Trial court’s refusal to allow defendant to inquire into the victim’s mental health in his criminal action, based upon an assault with a knife where defendant’s claim was that the victim was the aggressor and that he was acting in self-defense, did not violate defendant’s confrontation rights under U.S. Const. amend. VI or R.I. Const. art. 1, § 10 , as defendant put forward his version of events in front of the jury, and the restriction imposed on the scope of the cross-examination of the victim was reasonable; inquiry was prohibited into the victim’s mental health status because without a showing of sufficient probative worth, the concern that the victim’s mental health would confuse or mislead the jury required limitation pursuant to R.I. R. Evid. 403 . State v. Lorenzo, 891 A.2d 864, 2006 R.I. LEXIS 24 (R.I. 2006).

In defendant’s trial for sexual assault and other charges, the trial court erred in prohibiting the defense from impeaching complainant with evidence of a prior false claim of sexual assault made by her, as the prohibition precluded defendant from effectively cross-examining the complainant in violation of his rights under U.S. Const. amend. VI and R.I. Const. art. I, § 10 . State v. Dennis, 893 A.2d 250, 2006 R.I. LEXIS 35 (R.I. 2006).

In a parole revocation hearing arising from the alleged robbery of an apartment tenant, the trial court did not improperly limit the scope of defendant’s cross-examination of the tenant as to the tenant’s past cooperation with law enforcement. The trial court only prohibited the tenant from revealing the name of an officer to whom he had previously provided information in drug cases, and when the State indicated that the officer was not involved in the present case, defendant did not offer other arguments as to why the name would be relevant. State v. Johnson, 899 A.2d 478, 2006 R.I. LEXIS 101 (R.I. 2006).

Trial court properly precluded defendant from cross-examining his girlfriend, who was a witness in his criminal trial, regarding her claim that she was not violent by asking her about another witness’s comment that the victim had been fearful of the girlfriend, as such question would have been irrelevant, it would have invaded the jury’s province of determining the credibility of the witnesses, and accordingly, defendant’s right to confrontation under U.S. Const. amend. VI and R.I. Const. art. 1, § 10 was not violated. State v. Drew, 919 A.2d 397, 2007 R.I. LEXIS 40 (R.I. 2007).

Trial court erred in limiting defendant in defendant’s felony assault case from cross-examining the victim, other than as to the single question about whether the victim planned to civilly sue defendant. As a result of the limitation, defendant was not permitted to fully confront the victim about his bias toward defendant and potential need to exaggerate the his injuries after the victim stated that he did indeed intend to civilly sue defendant. State v. Tiernan, 941 A.2d 129, 2008 R.I. LEXIS 5 (R.I. 2008).

Because it was clear that the trial justice’s decision not to permit one particular question to be posed to the victim’s brother did not preclude defense counsel from being able to mount a vigorous record-based attack on the credibility of that witness, as the jury had been made aware during the trial of the involvement of the above-referenced persons in the drug business, any error regarding the scope of cross-examination under R.I. R. Evid. 806 was harmless. State v. Lopez, 943 A.2d 1035, 2008 R.I. LEXIS 29 (R.I. 2008).

R.I. Super. Ct. R. Crim. P. 16 , U.S. Const. amend. VI, and R.I. Const. art. 1, § 10 , were not violated by a trial court’s refusal to give defendant a transcript of a witness’s immunity hearing. The prosecutor’s summary of the immunity hearing and the justice’s comments when granting the witness immunity provided defendant the information he needed in order to meaningfully cross-examine the witness as to the grant of immunity. State v. Diefenderfer, 970 A.2d 12, 2009 R.I. LEXIS 55 (R.I. 2009).

In an action charging defendant with battery against a maintenance worker, defendant’s right to cross-examination under R.I. Const. art. I, § 10 was not violated by the trial justice’s refusal to allow testimony regarding a temporary restraining order issued against the property management company, because such evidence would have been cumulative. State v. Albanese, 970 A.2d 1215, 2009 R.I. LEXIS 59 (R.I. 2009).

Defendant was properly prevented under R.I. Const. art. I, § 10 and U.S. Const. amend. VI from cross-examining a victim with regard to the victim’s purported previous accusation of molestation against the victim’s godfather as defendant sought to introduce the prior accusation to undermine the victim’s general credibility, and not as evidence of the victim’s motive, possible bias, or to show that the victim had a pattern of alleging sexual assault under R.I. R. Evid. 404 (a) and 608(b); the State’s apparent decision not to prosecute the godfather was not evidence that the allegation was false. State v. Manning, 973 A.2d 524, 2009 R.I. LEXIS 105 (R.I. 2009).

Defense counsel was afforded ample opportunity to cross-examine a victim sufficient to satisfy the defendant’s constitutional right of confrontation under the Sixth Amendment, U.S. Const. amend. VI and R.I. Const. art. I, § 10 as the victim was visibly pregnant at the trial, and it was proper to preclude the victim’s cross-examination based upon a theory of sexual naivete; without a persuasive rationale for the probative value of allowing the line of questioning to impeach the victim’s general credibility, the trial justice properly considered the possible prejudicial effects of allowing an inquiry into a collateral matter. State v. Manning, 973 A.2d 524, 2009 R.I. LEXIS 105 (R.I. 2009).

Trial court’s limitation of defendant’s cross-examination of the employer, the victim, was not an abuse of discretion, because defendant’s attempted impeachment missed the mark where defendant’s out-of-court statement, that she did not do any of it, did not explain or contradict the employer’s testimony that defendant could not provide the employer with an explanation for the missing funds. State v. St. Michel, 37 A.3d 95, 2012 R.I. LEXIS 21 (R.I. 2012).

Trial justice did not violate defendant’s right to cross-examine the complaining witness because the justice gave defendant reasonable latitude to establish possible bias against defendant or ulterior motives of the complaining witness, the justice was within the justice’s discretion to properly limit cross-examination, and the justice did not abuse the justice’s discretion by not permitting defendant to question the complaining witness whether the complaining witness had asked another person to make a corroborating statement. State v. Garcia, 263 A.3d 724, 2021 R.I. LEXIS 100 (R.I. 2021).

Defendant waived her argument that the trial judge violated her Confrontation Clause rights by preventing her cross-examination of a witness regarding the promises, rewards, and inducements detectives offered the witness because at no point did defendant raise such an argument relating to the questioning; defendant raised no basis for the admission and wholly failed to press the issue, and the record did not support her contention that the testimony she was trying to bring out was obvious. State v. Hudgen, 272 A.3d 1069, 2022 R.I. LEXIS 35 (R.I. 2022).

— Harmless Error.

Although it was error to deny the defendant an opportunity to inquire into the possible bias of a witness, the error was harmless in view of the extensive record of inculpatory evidence presented in the case. State v. Bustamante, 756 A.2d 758, 2000 R.I. LEXIS 178 (R.I. 2000).

Discovery.

Defendant’s murder conviction is reversed and his case is remanded for a new trial, where the chief prosecution witness’s perjury, elicited by the FBI, constitutes material exculpatory evidence withheld in violation of the defendant’s due-process rights. Lerner v. Moran, 542 A.2d 1089, 1988 R.I. LEXIS 79 (R.I. 1988).

In a prosecution for sexual offenses, the defendant’s motion, filed under Super. Ct. R. Crim. P. Rule 16 a year before the trial began, requesting the names of all physicians who may have treated or examined the victim for a four-and-a-half-year period was premature, and was overbroad in regard to the period covered and the type of information requested. State v. Brown, 709 A.2d 465, 1998 R.I. LEXIS 106 (R.I. 1998).

In a child molestation case, police reports were not discoverable under R.I. Super. Ct. R. Crim. P. 16 , as only two of them contained written or recorded verbatim statements by the victim, neither of which related to the case, and none of them related to the incidents that were the subject of the trial; accordingly, the state’s failure to provide the reports did not violate Brady or Rule 16. State v. Burnham, 58 A.3d 889, 2013 R.I. LEXIS 14 (R.I. 2013).

Due Process.

“Due process of law” or “the law of the land” means law in its regular course of administration through courts of justice. State v. Conragan, 58 R.I. 313 , 192 A. 752, 1937 R.I. LEXIS 45 (1937).

The presence of an officially-appointed court stenographer, serving within the conditions imposed by the statute which authorizes the use of the stenographer appointed by court under certain circumstances to report stenographically the testimony given before the grand jury and to be present only during the taking thereof would not deprive an accused of any rights guaranteed under either the state or federal constitutions. State v. Edwards, 89 R.I. 378 , 153 A.2d 153, 1959 R.I. LEXIS 96 (1959).

The legislature in the exercise of its broad police power can provide for a distinction between “detention” and “arrest”; and a period of detention reasonably limited, unaccompanied by unreasonable or unnecessary restraint and based upon circumstances reasonably suggestive of criminal involvement is lawfully distinguished from an arrest by the legislature, creating no deprivation of liberty, due process, right to bail, speedy trial, representation by counsel and habeas corpus as guaranteed by the constitution. Kavanagh v. Stenhouse, 93 R.I. 252 , 174 A.2d 560, 1961 R.I. LEXIS 102 (1961).

The ordinance of the city of Warwick under which the defendant was found guilty for behaving in a disorderly manner, was so vague, indefinite and uncertain as to have deprived him of liberty and property without due process of law. State v. Berker, 114 R.I. 72 , 328 A.2d 729, 1974 R.I. LEXIS 1062 (1974).

Denial of a bifurcated trial on the issues of guilt and sanity did not abridge defendant’s constitutional right to due process. State v. Smith, 512 A.2d 818, 1986 R.I. LEXIS 489 (R.I. 1986).

Where defendant was tried for committing offenses which, if committed by an adult, would constitute first-degree child molestation sexual assault, his claim that his due process right to present a defense was violated because the charges lacked specificity as to time and place was meritless. The victim testified about the location where and the approximate time period when the events occurred; as defendant denied ever spending time alone with the victim, whether he did not do so on a specific date was irrelevant. In re Miguel A., 990 A.2d 1216, 2010 R.I. LEXIS 38 (R.I. 2010).

There is no basis under the Rhode Island criminal due process clause, R.I. Const. art. 1, § 10 , for holding that mandatory recording of custodial interrogations is constitutionally required. A criminal defendant in Rhode Island is provided with ample procedural safeguards to ensure a fundamentally fair trial, even in the absence of such an additional requirement. State v. Barros, 24 A.3d 1158, 2011 R.I. LEXIS 113 (R.I. 2011).

Defendant’s due process rights were not violated by the trial court’s exclusion of certain testimony where it would have been unnecessarily cumulative pursuant to R.I. R. Evid. 403 . State v. Lomba, 37 A.3d 615, 2012 R.I. LEXIS 17 (R.I. 2012).

— Criminal Offenses, Scienter In.

Conviction of a defendant of violation of a statute prescribing course of conduct for motorist colliding with unattended vehicle does not deprive him of liberty without due process of law because of the omission of the word “knowingly” from such statute, such knowledge being implied as a prerequisite to the violation of the statute. State v. Lemme, 104 R.I. 416 , 244 A.2d 585, 1968 R.I. LEXIS 662 (1968).

Evidence and Presumptions.

P.L. 1881, ch. 889, § 23, which provided for criminal penalties if a person kept “a place in which it is reputed that intoxicating liquors are kept for sale,” violated this section since a house could erroneously have this reputation and yet the owner would be liable. State v. Kartz, 13 R.I. 528 , 1882 R.I. LEXIS 32 (1882).

P.S. 1882, ch. 127, which made it unlawful to sell adulterated milk and P.L. 1882, ch. 276, § 3, which set forth certain standards under which, if not met, milk will be deemed adulterated were not unconstitutional since testimony relating to the analysis of samples of milk taken by an inspector could be controverted by evidence showing that the analysis was incorrect. State v. Groves, 15 R.I. 208 , 2 A. 384, 1885 R.I. LEXIS 26 (1885).

In the trial of a defendant who admitted killing his wife, with the only question before the jury that of whether defendant was guilty of first degree murder or voluntary manslaughter, the erroneous admission of testimony of other violent acts of the defendant and the exhibition of clothing worn by his wife when killed, even though not individually prejudicial, had the cumulative effect of denying the defendant a fair trial. State v. Pepper, 103 R.I. 310 , 237 A.2d 330, 1968 R.I. LEXIS 797 (1968).

Due process mandates that all elements of a crime must be proved beyond a reasonable doubt in all criminal prosecutions. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

When a defendant produces some evidence of self-defense, the burden falls on the state to disprove this defense beyond a reasonable doubt. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Town’s failure to preserve a sample of defendant’s breath used in breathalyzer test did not violate defendant’s due process rights under either the federal or Rhode Island constitution. State v. Williams, 480 A.2d 1383, 1984 R.I. LEXIS 596 (R.I. 1984).

Police officer’s testimony was properly excluded on the grounds that it would have been cumulative where there were other witnesses which had testified concerning defendant’s demeanor and behavior, including the victim, who spent the 14-hour ordeal as defendant’s hostage, and another officer, who arrived at the scene 30 minutes before the requested witness arrived. State v. Thornton, 800 A.2d 1016, 2002 R.I. LEXIS 171 (R.I. 2002).

Dismantling of evidence, a car in which victim was shot and killed, did not deny defendants due process where the probative value of a projectile trajectory was dubious; as defendants failed to demonstrate that the State acted negligently or in bad faith in expressly ordering a private towing company to retain and preserve the car. State v. Roberts, 841 A.2d 175, 2003 R.I. LEXIS 201 (R.I. 2003).

Adherence to prior case law excluding evidence regarding polygraph test results did not violate defendant’s right to present a defense; it would not be proper to allow bolstering of defendant’s version of events by an expert’s testimony regarding defendant’s possible truthfulness on some other occasion and thereby allow the admission of defendant’s version of events as vouched for by a more credible expert witness, without any opportunity to cross-examine defendant. State v. Werner, 851 A.2d 1093, 2004 R.I. LEXIS 148 (R.I. 2004).

— Defendant’s Statements.

Admission of the defendant’s statements to the police at the time of his arrest did not violate his constitutional rights, where he had read, understood, initialed, and signed a rights-waiver form, and his booking photograph failed to corroborate his testimony that he was struck repeatedly about the face and head with a nightstick-flashlight. State v. Smith, 602 A.2d 931, 1992 R.I. LEXIS 18 (R.I. 1992).

Trial court’s findings that defendant’s statement was voluntary and its denial of defendant’s motion to suppress the statement were not clearly erroneous as defendant was properly informed of his Miranda rights in his native language, and he signed a waiver form that indicated each right was waived; at the suppression hearing, defendant put forth no evidence that would have allowed the trial justice to make findings of historical fact about his background, experience, or educational attainment that might have tipped the totality of the circumstances in his favor. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

Defendant’s videotaped statement to police was properly admitted, where the interrogating detective testified there was nothing to cause the detective concern that defendant was intoxicated or impaired during the interview and defendant failed to sufficiently show how the police conduct was coercive. State v. Mlyniec, 15 A.3d 983, 2011 R.I. LEXIS 25 (R.I. 2011).

Defendant’s confession was voluntary where the record showed that defendant had been in the United States since 2005, he read and signed a form describing his Miranda rights on two occasions, the total interrogation time was less than 90 minutes, the court accepted the trial court’s findings that defendant was not assaulted during the first interrogation and that his statement was not the result of threats or coercion, and the record was replete with references to defendant’s calm demeanor throughout his arrest and interrogations. State v. Bojang, 138 A.3d 171, 2016 R.I. LEXIS 59 (R.I. 2016).

Defendant’s motion to suppress statements he made to a Massachusetts Department of Children and Families (DCF) investigator on grounds that his statements were involuntary and that his right to due process was violated was improperly granted because the investigator’s interview at defendant’s kitchen table was the antithesis of a coercive interrogation; there was no DCF policy requiring the investigator to give defendant the DCF brochure informing him of his right to counsel at the beginning of the interview, and it was not unconstitutional for the investigator to have waited until the end of the interview to give defendant the brochure; and defendant’s rights to counsel had not attached as he was not in custody and had not been charged with a crime. State v. Gouin, 182 A.3d 28, 2018 R.I. LEXIS 36 (R.I. 2018).

Fair Trial.

Where the defendant was charged with manslaughter for allegedly stabbing her husband during an argument, the prosecutor’s question to the defendant regarding an unsubstantiated allegation that the defendant had stabbed her former husband was inherently prejudicial to her right to a fair and impartial trial and its destructive impact was not cured by the cautionary instructions given to the jury by the trial justice. State v. Ordway, 619 A.2d 819, 1992 R.I. LEXIS 216 (R.I. 1992).

Defendant’s right to a fair trial by an impartial jury was not violated as the trial justice did not err in denying defendant’s motion to pass the case because the prosecutor’s question to defendant regarding the possession of photographs of naked individuals was not sufficiently related to charges of assault by strangulation and simple assault; the possession of the photographs was not criminal; and the prosecutor’s question was not so inflammatory that the trial justice was unable to expiate the harm. The trial justice correctly sustained defendant’s objection and gave a cautionary instruction to the jury that cured the prejudice created by the prosecutor’s improper comments; and the jurors nodded in response that they could disregard the question. State v. Funches, 160 A.3d 981, 2017 R.I. LEXIS 72 (R.I. 2017).

Jury.

P.L. 1880, ch. 797, § 4, which provided that in a prosecution for the sale of intoxicating liquors it was not necessary to prove an actual sale, but that certain circumstances set forth in the statute would be prima facie evidence that liquors were kept for sale, was unconstitutional under this section since it deprived the defendant of a judgment of his peers. State v. Beswick, 13 R.I. 211 , 1881 R.I. LEXIS 11 (1881).

Charge by trial court that the act of the defendant in fleeing from the state after alleged offense “makes a prima facie case which indicates guilt on his part” deprived defendant of life and liberty contrary to this section, since it was the function of the jury to determine the effect of defendant’s flight on his guilt. State v. Papa, 32 R.I. 453 , 80 A. 12, 1911 R.I. LEXIS 63 (1911).

Pending legislation to reduce petit jury from 12 members to 6 was repugnant to provisions of the state constitution which were adopted when the term “Jury” contemplated 12 members. Advisory Opinion to Senate, 108 R.I. 628 , 278 A.2d 852, 1971 R.I. LEXIS 1319 (1971).

Juvenile presented to family court as an alleged delinquent is not constitutionally entitled to a trial by jury. In re McCloud, 110 R.I. 431 , 293 A.2d 512, 1972 R.I. LEXIS 933 (1972).

Under neither the Constitution of the United States nor the Constitution of Rhode Island is a juvenile who has been found to be a delinquent entitled, as a matter of constitutional right, to a jury trial. In re Wilkinson, 116 R.I. 163 , 353 A.2d 199, 1976 R.I. LEXIS 1260 (1976).

Since trial by jury necessarily requires a jury which is able to comprehend and intelligently resolve the factual issues submitted to its verdict, it follows that a juror should be free from physical disabilities that would interfere with the proper discharge of his duties. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

It is generally held that the issue of whether a physical infirmity such as deafness is sufficient to disqualify a juror is a question addressed to the sound discretion of the trial justice and such decision will not be disturbed except where an abuse of discretion is shown. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Where the juror during examination by the judge openly admitted that he could not hear the questions submitted to him and a considerable number of his answers were not responsive to the questions asked, the supreme court found that the juror had a hearing impediment sufficient to deny defendant’s right to a fair, impartial trial and a unanimous verdict. State v. Berberian, 118 R.I. 413 , 374 A.2d 778, 1977 R.I. LEXIS 1478 (1977).

Defendants, who had waived a jury trial in the first instance and were subsequently convicted of nonpetty offenses in district court, were entitled to a jury trial in their appeal pursuant to this section. State v. Avila, 415 A.2d 180, 1980 R.I. LEXIS 1676 (R.I. 1980).

Under the Rhode Island Constitution, an accused is entitled to such jury-trial right as was enjoyed at the time of adoption of the Rhode Island Constitution. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Incidents of the jury-trial right embodied in the Rhode Island Constitution cannot be abridged even though they may not be embodied in the federal constitution. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

At common law, juries were originally drawn from the vicinage of the crime. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Both before and after Rhode Island Constitution was adopted, an accused had generally been tried before a jury composed of residents of the county wherein the crime was committed. But this practice has been predicated upon statutory rules of procedure, not a constitutionally guaranteed right of vicinage. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Where the judge reasonably found that the prosecutor exercised a peremptory challenge because the prospective juror’s son was incarcerated on a robbery conviction, this relationship, although an insufficient reason to excuse the juror for cause, was sufficient to verify the challenge’s race-neutral character. State v. Austin, 642 A.2d 673, 1994 R.I. LEXIS 170 (R.I. 1994).

Defendant’s rights under the Rhode Island Constitution and the Sixth Amendment were not violated when the trial court found that defendant was a habitual offender pursuant to R.I. Gen. Laws § 12-19-21 without submitting that question to the jury to be proved beyond a reasonable doubt. Recidivism was quite common and the fact of prior convictions was easily determined by resort to the public record, which meant that the fact of a prior conviction did not have to be submitted to a jury and proven beyond a reasonable doubt to obtain habitual offender sentencing. State v. Hall, 940 A.2d 645, 2008 R.I. LEXIS 7 (R.I. 2008).

Defendant juvenile, who was adjudicated delinquent for committing second-degree child molestation sexual assault, was properly required to register under R.I. Gen. Laws § 11-37.1-3(a) without a jury trial; the Registration Act is constitutional as applied to juveniles. The confidentiality generally afforded to a juvenile is not absolute; sometimes confidentiality has to give way to other legitimate societal priorities. In re Richard A., 946 A.2d 204, 2008 R.I. LEXIS 54 (R.I. 2008).

— Grand Jury.

Where jury commissioners excluded “the president, professors, tutors and students of recognized universities and colleges,” such grand jury was composed in violation of constitutional requirements. State v. Jenison, 122 R.I. 142 , 405 A.2d 3, 1979 R.I. LEXIS 2142 (1979).

— Impartial Jury.

The defendant is prejudiced when a prospective juror, in the presence of other prospective jurors who later serve on the jury, expresses his opinion that the defendant is guilty of the crimes for which she is to be tried, as the unsworn testimony of a juror regarding a fact that is relevant to the determination of an issue before the jury constitutes misconduct in itself. The proper standard to be applied in the case of juror misconduct is that a new trial must be granted unless it appears beyond a reasonable doubt that no prejudice has resulted. State v. Carmody, 471 A.2d 1363, 1984 R.I. LEXIS 466 (R.I. 1984).

Even though the allegations of juror misconduct were contained in affidavits which themselves were inadmissible hearsay, further inquiry into the circumstances and conditions under which extraneous information may have been imparted to the jury was required to ensure that the defendant’s rights had not been abridged. State v. Hartley, 656 A.2d 954, 1995 R.I. LEXIS 96 (R.I. 1995).

Juror’s racial bias is not the sort of “extraneous prejudicial information” or “outside influence” contemplated by R.I. R. Evid. 606 (b), but Rule 606(b) does not preclude the admission of such testimony where necessary to protect a defendant’s constitutional right to a fair trial by an impartial jury. State v. Brown, 62 A.3d 1099, 2013 R.I. LEXIS 45 (R.I. 2013).

Jury Instructions.

In order to decide whether a jury instruction meets the due-process standard, the reviewing court must consider carefully the words actually spoken to the jury. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Whether a defendant has been accorded his constitutional rights by the giving of an instruction depends upon the way in which a reasonable juror could have interpreted the instruction. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Jury instructions must be reviewed in the context of the entire charge to determine whether the legal principles controlling a crucial factual issue were outlined properly by the trial justice. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Due process requires that the jury must receive clear instructions that the prosecution must persuade them beyond a reasonable doubt that the killing was not in self-defense once the defendant produces evidence of self-defense. State v. Caron, 423 A.2d 823, 1980 R.I. LEXIS 1862 (R.I. 1980).

Preliminary admonitions when addressing the venire of jurors and at the time of swearing-in of a jury panel, cannot and must not serve as substitutes for a comprehensive and complete set of instructions upon the law following final arguments at the end of the trial as to inferences that might be drawn against defendant’s decision not to testify in his own defense. State v. Simpson, 595 A.2d 803, 1991 R.I. LEXIS 176 (R.I. 1991).

Nature and Cause of Accusation.

P.L. 1880, ch. 797, § 2, which provided that it was not necessary to plead or prove any negative averments in a complaint for violation of the statute, was not in conflict with this section since no particular form of complaint is required but only that the defendant be given sufficient information to defend himself. State v. Beswick, 13 R.I. 211 , 1881 R.I. LEXIS 11 (1881).

Constitutionality of G.L. 1909, ch. 198, § 3 was not involved where defendant was summoned to answer complaint and warrant under a search warrant for seizure of bottles, together with body of person or persons in whose possession same were found, since statute did not require arraignment or trial of person found in possession. State v. Hand Brewing Co., 32 R.I. 56 , 78 A. 499, 1911 R.I. LEXIS 2 (1911).

Section 7 and 10 of this article require that defendant be notified by the indictment of the nature and cause of the accusation sufficiently to identify the crime and to prevent subsequent prosecution for same offense if acquitted. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

The general assembly has the power to prescribe, change, or modify the forms or manner of stating a charge in a criminal process, limited and controlled by the Constitution. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

The provision that the accused shall be informed of the nature and cause of the accusation means the charge must identify the offense so that he may defend and later avoid subsequent charge for the same offense after trial and further so the court may on conviction pronounce the proper sentence. State v. Domanski, 57 R.I. 500 , 190 A. 854, 1937 R.I. LEXIS 128 (1937).

Where all the essential elements of the offense charged appeared in the indictment and the venue was laid properly, the charge as laid satisfied the constitutional requirements. State v. Cairo, 74 R.I. 377 , 60 A.2d 841, 1948 R.I. LEXIS 93 (1948).

An indictment is sufficient, whether under common law pleading or under the statute, if it complies with the requirements contained in this section. State v. Jorjorian, 82 R.I. 334 , 107 A.2d 468, 1954 R.I. LEXIS 58 (1954).

To be valid the offense charged must be affirmative on its face. State v. Campbell, 97 R.I. 111 , 196 A.2d 131, 1963 R.I. LEXIS 130 (1963).

Where a complaint was so indefinite as to nature and character of offense to not meet the constitutional requirements of reasonable certainty in this section, the complaint should be dismissed sua sponte even though no exception or plea was made on this basis. State ex rel. Aptt v. Manufacturers Supply Co., 105 R.I. 748 , 254 A.2d 423, 1969 R.I. LEXIS 815 (1969).

There was no deprivation of right to be informed of the nature of the offense secured by the 6th Amendment and this section where defendant was charged by short-form indictment pursuant to former § 12-12-7. State v. Lerner, 112 R.I. 62 , 308 A.2d 324, 1973 R.I. LEXIS 957 (1973).

Indictment or complaint based on § 11-32-1 violated due process afforded by the Fourteenth Amendment and by this section, where it did not aver that defendant knew the officer to be an officer when obstructing him. State v. Drew, 112 R.I. 129 , 308 A.2d 516, 1973 R.I. LEXIS 963 (1973).

An indictment for embezzlement that set forth the essential elements of the offense described in the statute and left the defendant in no doubt about the crime with which the defendant was charged was sufficient to withstand a charge that the indictment was so inartistically drawn that defendant’s right to be informed of the nature and cause of the accusation was violated. State v. Crescenzo, 114 R.I. 242 , 332 A.2d 421, 1975 R.I. LEXIS 1407 (1975).

Prior to the time a juvenile is presented to the court for placement pending delinquency adjudication, he and his parents must be notified in writing of the nature and possible consequences of the placement proceedings. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

Basic due process requires that any criminal statute set forth with reasonable clarity those acts that it proscribes. No man shall be held criminally responsible for conduct that he could not reasonably understand to be prescribed. State v. Tweedie, 444 A.2d 855, 1982 R.I. LEXIS 850 (R.I. 1982).

An indictment charging the defendant with sexual penetration of the victim in violation of §§ 11-37-2 and 11-37-3 and indicating the time and place the offense was committed set forth the charge with legal sufficiency to notify the defendant of the substantial elements of the charge and to prevent the defendant’s being put upon trial a second time for the same offense. State v. Waite, 484 A.2d 887, 1984 R.I. LEXIS 631 (R.I. 1984).

Though the indictment charging the defendant with sexual assault was inartfully drawn, in that it did not refer directly to the subsection of the section under which he was being charged, the count was otherwise sufficient because the defendant, having been put on notice that he was being charged with first-degree sexual assault, suffered no prejudice; furthermore, the bill of particulars for which defendant moved with respect to other charges was sufficient to provide him with the specific circumstance of force or coercion underlying the first charge. State v. Waite, 484 A.2d 887, 1984 R.I. LEXIS 631 (R.I. 1984).

Defendant was not denied a fair trial because the counts in an indictment for first-degree child molestation sexual assault were not duplicitous, and a bill of particulars made clear that a single act was charged in each of the counts. Furthermore, defense counsel was afforded considerable latitude on cross-examination to explore with the complaining witness dates, times, locations, and circumstances regarding the different and disparate instances that were alleged in the indictment. Pierce v. Wall, 941 A.2d 189, 2008 R.I. LEXIS 14 (R.I. 2008).

— Conspiracy.

Where the object of the conspiracy is unlawful in itself, neither the statement of the means by which the conspirators intended to accomplish the object, nor its successful accomplishment, is essential to the indictment. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

Indictment brought according to the form authorized in P.L. 1932, ch. 1954 [former § 12-12-7] for conspiracy to steal, and therefore section itself, were not unconstitutional under this section, since the indictment sets out the nature and cause of the accusation sufficiently to enable defendant to defend after possible bill of particulars, and to prevent another prosecution if acquitted. State v. Smith, 56 R.I. 168 , 184 A. 494, 1936 R.I. LEXIS 90 (1936).

An indictment charging the common law offense of conspiracy under § 11-1-1 , which goes on to recite various specific acts, which in themselves constitute separate substantive offenses intended to be perpetrated in the course of the conspiracy, sufficiently apprises the defendant of the charges against him as required by this section. State v. Giorgi, 115 R.I. 1 , 339 A.2d 268, 1975 R.I. LEXIS 1110 (1975).

— Embezzlement.

Indictment for statutory crime of embezzlement which alleged generally the fiduciary relation between the defendant and his employer, that property came into the defendant’s possession by virtue of his employment, that such property belonged to the employer, and that the defendant feloniously embezzled and fraudulently converted such property to his own use without employer’s consent, was sufficiently certain to inform the defendant of the “nature and cause of the accusation,” since such offense was charged with the same degree of particularity as required for the common law crime of larceny. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916).

Indictment for embezzlement drawn in modified form as authorized by G.L. 1909, ch. 345, § 18, which alleged generally all essential elements of the crime without specifying any particulars did not violate this section, even though such indictment did not in fact give notice of the time when the offense was committed. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916).

Indictment for embezzlement in modified form authorized by G.L. 1909, ch. 345, § 18, which alleged generally all essential elements of the crime, was sufficiently certain to find a plea of former jeopardy, because under G.L. 1909, ch. 278, § 3 [§ 8-5-5 ], requiring an official stenographic report of the proceedings of a criminal trial, it becomes easy to ascertain of what the accused was acquitted or convicted. State v. Davis, 39 R.I. 276 , 97 A. 818, 1916 R.I. LEXIS 37 (1916).

— Gambling.

The provisions of § 11-19-18 are not so vague and indefinite as to be violative of the constitutional guarantees of due process. State v. Picillo, 105 R.I. 364 , 252 A.2d 191, 1969 R.I. LEXIS 765 (1969).

— Intoxicating Liquor.

Indictment for unlawful sale of liquor which failed to name the purchaser or state that the sale was to some person unknown to the complainant violated the constitutional right of a defendant “to be informed of the nature and cause of the accusation.” State v. Doyle, 11 R.I. 574 , 1877 R.I. LEXIS 49 (1877).

This section requires only that the defendant be informed of the nature of the action against him and does not require compliance with technical forms of pleading so that a complaint framed in the words of P.L. 1886, ch. 596, § 15, was sufficient to charge a violation of the act, even though the complaint omitted an allegation that the liquors were kept to be used as a beverage. State v. Kane, 15 R.I. 395 , 6 A. 783, 1886 R.I. LEXIS 48 (1886).

— Motor Vehicles.

The law defining reckless driving (§ 31-27-4 ) meets the requirements of the constitution as to definiteness and certainty. State v. Scofield, 87 R.I. 78 , 138 A.2d 415, 1958 R.I. LEXIS 15 (1958).

Where the complaint in no manner discloses whether the unreasonable operation of motor vehicle with which the defendant was charged was in excess of the speed limits provided in § 31-14-2 or resulted from a failure to reduce speed in the face of one of the hazards provided for in § 31-14-3 , it was obviously so vague and indefinite as to be violative of this constitutional provision. State v. Brown, 97 R.I. 115 , 196 A.2d 133, 1963 R.I. LEXIS 131 (1963).

— Robbery and Theft.

The form for a robbery indictment allowed by P.L. 1932, ch. 1954 [former § 12-12-7] did not violate this section, since it informs defendant of the nature and cause of the accusation. State v. Domanski, 57 R.I. 500 , 190 A. 854, 1937 R.I. LEXIS 128 (1937).

Language in shoplifting statute, § 11-41-20 , referring to the taking possession of goods either inside the store or “outside, but in its immediate vicinity” does not render the statute unconstitutionally vague. State v. D'Amico, 110 R.I. 356 , 293 A.2d 304, 1972 R.I. LEXIS 922 (1972).

Parole.

Parole is not a right; it is a privilege which the legislature may confer, withhold or withdraw, and the conditions under which it may be obtained may be changed at any time before parole is granted. Rondoni v. Langlois, 89 R.I. 373 , 153 A.2d 163, 1959 R.I. LEXIS 98 (1959).

Parole Revocation Hearing.

In a parole revocation hearing, which is not part of the criminal-prosecution process, the court did not err in admitting into evidence the victim’s written statement, since the victim could not be found to testify at the revocation hearing. State v. Hazard, 671 A.2d 1225, 1996 R.I. LEXIS 53 (R.I. 1996).

Pre-Trial Identification.

Convictions based on eyewitness identification at trial following a pre-trial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Thus, the admissibility of identification testimony hinges upon reliability, and the relevant inquiry becomes whether a pretrial identification is reliable in spite of the fact that the procedures under which it was made were suggestive. State v. Rodriquez, 478 A.2d 171, 1984 R.I. LEXIS 522 (R.I. 1984).

Presence at Trial.

Where defendant was free on bail and was present in court until the state had completed its presentation of the case but thereafter defendant failed to appear and there was nothing to show that such absence was other than voluntary, such action constituted a waiver on the defendant’s part of his right to be present at the trial and no constitutional rights were denied to defendant by proceeding with the trial in his absence. Trombley v. Langlois, 91 R.I. 328 , 163 A.2d 25, 1960 R.I. LEXIS 97 (1960).

Where trial was started while defendant was not present, over the objection of defendant’s counsel, and during defendant’s absence the only witness who saw defendant in possession of a handgun testified, and when defendant arrived in courtroom trial justice refused to allow defense counsel to proffer any explanation for defendant’s absence, a new trial was required. State v. Brown, 121 R.I. 422 , 399 A.2d 1222, 1979 R.I. LEXIS 1795 (1979).

A criminal defendant does have the right, both under the Sixth Amendment and the due process clause of the Fourteenth Amendment, and under this section, to be present at all stages of his trial where his absence may affect the fairness of the proceedings. State v. Souza, 425 A.2d 893, 1981 R.I. LEXIS 1037 (R.I.), cert. denied, 454 U.S. 840, 102 S. Ct. 148, 70 L. Ed. 2d 123, 1981 U.S. LEXIS 3372 (1981).

A criminal defendant has the right, under this section, to be present at all stages of his trial when his absence may affect the fairness of the proceedings against him. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

A defendant’s voluntary absence from a trial serves to operate as a waiver of the constitutional right to be present. State v. Holland, 430 A.2d 1263, 1981 R.I. LEXIS 1173 (R.I. 1981).

Where defendant was convicted of assault, he was not denied a fair trial as a result of being forced to wear prison attire during the trial and remaining handcuffed because the defendant did not timely object to his prison attire and had already appeared before the jury; also defendant never objected to the handcuff restraints and were necessary due to the defendant’s unruly and disruptive behavior. State v. Snell, 892 A.2d 108, 2006 R.I. LEXIS 27 (R.I. 2006).

Probation.

This article does not require that a defendant, in a hearing for revocation of probation, be confronted by witnesses against him as in a trial upon a criminal charge. Nor is he entitled to demand as of right that the information upon which the trial justice based his revocation of suspension should conform to the established rules of evidence. Harris v. Langlois, 98 R.I. 387 , 202 A.2d 288, 1964 R.I. LEXIS 180 , cert. denied, 379 U.S. 866, 85 S. Ct. 138, 13 L. Ed. 2d 70, 1964 U.S. LEXIS 774 (1964).

The process due for probation-revocation hearings is less formal than the full panoply of rights afforded at a criminal trial. State v. Desrosiers, 559 A.2d 641, 1989 R.I. LEXIS 106 (R.I. 1989).

Although no constitutional right of allocution exists in probation revocation hearings, whenever a trial justice is called upon to exercise his discretion in determining, in open court and in the presence of the defendant, how much of a suspended sentence, if any, should be imposed and whether or not the sentences should be ordered to run consecutively, the better practice is to permit counsel to address the court concerning any factors which may assist the court in fashioning a sentence that is just and proper. State v. Ratchford, 732 A.2d 120, 1999 R.I. LEXIS 157 (R.I. 1999).

The court properly determined defendant violated his probation conditions where defendant possessed an operable gun and was preparing the gun to be fired. State v. Crudup, 842 A.2d 1069, 2004 R.I. LEXIS 29 (R.I. 2004).

Hearing justice at a probation revocation hearing did not abuse his discretion and deprive a probationer of his due process right of confrontation by preventing him from cross-examining his victim about her knowledge of a hand operation, which may have prevented him from assaulting her as alleged; rather, the probationer was allowed to question the victim at length, was not prevented from introducing evidence of the operation through other channels, and was welcome to rephrase the question or to discredit the victim. State v. Snell, 861 A.2d 1029, 2004 R.I. LEXIS 190 (R.I. 2004).

Because defendant was offered the choice to continue with the appointed counsel or self-representation, because there were no exceptional circumstances justifying the postponement of defendant’s probation violation hearing, because the grounds for defendant’s request did not call into doubt counsel’s capability to adequately represent defendant, because no other competent and prepared trial counsel was ready to pinch-hit, and because defendant did not believe defendant could self-represent, the hearing justice did not err in refusing defendant’s request for the appointment of alternate counsel. State v. Gilbert, 984 A.2d 26, 2009 R.I. LEXIS 136 (R.I. 2009).

Because there were no exceptional circumstances that called for an eleventh-hour discharge of counsel, because defendant failed to keep the peace and remain on good behavior while on probation, and because defendant’s sentence was based on the nature of the first offense, pursuant to R.I. Super. Ct. R. Crim. P. 32 (f) and R.I. Gen. Laws § 12-19-9 , defendant’s probation was properly revoked. State v. Lancellotta, 35 A.3d 863, 2012 R.I. LEXIS 1 (R.I. 2012).

Process for Witnesses.

In a trial for manslaughter, the trial court’s refusal to adjourn the case until the following day to secure the attendance of a physician was an abuse of discretion and a denial of due process of law. State v. Rossi, 71 R.I. 284 , 43 A.2d 323, 1945 R.I. LEXIS 46 (1945).

Where officers on three occasions went to home of witness and apprised her that they intended to serve a subpoena on her, and on all three occasions witness refused admittance to the officers so as to frustrate their efforts to serve her personally, service requirements of Super. Ct. Crim. Rule 17(d) were satisfied, and court was empowered to issue a body attachment. State v. Counts, 452 A.2d 1141, 1982 R.I. LEXIS 1097 (R.I. 1982).

Public Trial.

A defendant’s right to a public trial is not violated by the exclusion of witnesses from the court room. State v. Cyrulik, 100 R.I. 282 , 214 A.2d 382, 1965 R.I. LEXIS 390 (1965).

Section 14-1-30 is compatible with constitutional free-press guarantees because the press enjoys no greater right of access to juvenile proceedings than does the general public. Excluding the press from the category of those “with a direct interest” in these proceedings is, therefore, clearly permissible. Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1982 R.I. LEXIS 834 (R.I. 1982).

A trial justice’s discretionary decision to deny the defendant’s request for televised proceedings did not have any constitutional implications. State v. Price, 706 A.2d 929, 1998 R.I. LEXIS 34 (R.I. 1998).

When the court failed to acknowledge the public-trial requirement of U.S. Const. Amend. VI and R.I. Const. art. I, § 10 by failure to consider alternatives to closing the jury-selection process to defendant’s family, such as limiting the size of the jury pool, allowing the family members to stand while they observed the proceedings, or request a larger courtroom, the court violated defendant’s right to a public trial. State v. Torres, 844 A.2d 155, 2004 R.I. LEXIS 59 (R.I. 2004).

Defendant, whose sisters were improperly excluded from the courtroom during jury selection, was not required to prove specific prejudice to obtain relief for the violation of his right to a public trial under U.S. Const., Amend. VI and R.I. Const. art. I, § 10 . His convictions were vacated and the case was remanded for a new trial. State v. Torres, 844 A.2d 155, 2004 R.I. LEXIS 59 (R.I. 2004).

Recorded Testimony.

In determining whether or not to admit the prior recorded testimony of a witness who refuses to attend, the court should look at the ability of the defendant to secure the attendance of the witness rather than the ability of the witness to attend. State v. Lemon, 478 A.2d 175, 1984 R.I. LEXIS 526 (R.I. 1984).

Right of Review.

There is no constitutional provision which expressly guarantees the defendant a review by appeal of his trial before a jury. State v. Hudson, 55 R.I. 141 , 179 A. 130, 1935 R.I. LEXIS 9 (1935).

Where the court cannot say with assurance that the verdict was reached as a result of a fair and impartial trial it is the duty of the supreme court to order a new trial. State v. Pope, 108 R.I. 538 , 277 A.2d 303, 1971 R.I. LEXIS 1302 (1971).

If the court determines that detention in the custody of the court will best serve the interests of the child and the community, it must articulate in writing the facts and reasons on which it based its decision to detain the juvenile, and a record of the proceedings must be made so that appellate review of the decision might be obtained. Morris v. D'Amario, 416 A.2d 137, 1980 R.I. LEXIS 1662 (R.I. 1980).

Portions of § 12-22-1.1 which authorized a direct review of district court’s action in finding defendant guilty of a violation of § 4-1-10 by way of certiorari violate defendant’s right under the Rhode Island Constitution to a jury trial. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

Right to Speak.

The guarantee in this section differs from the ancient common law right of allocution in that it is broader and narrower: the constitutional liberty, as the court construes it, includes the right of an accused, as he stands at the bar after conviction awaiting imposition of sentence to bring to the attention of the court those matters which one in his position could at common law have spoken when inquiry was made as to why sentence should not be imposed. Robalewski v. Superior Court, 97 R.I. 357 , 197 A.2d 751, 1964 R.I. LEXIS 87 (1964).

Where in the course of presentence recommendations, the assistant attorney general referred extensively to the conditions surrounding petitioner’s escape and uncooperative attitude which made it difficult for the state to secure his return from California and only petitioner was able to deny or explain such statements, the denial of his request to speak in his own behalf and present his own version of the incident was a denial of his constitutional liberty. Robalewski v. Superior Court, 97 R.I. 357 , 197 A.2d 751, 1964 R.I. LEXIS 87 (1964).

Under neither the Constitution of the United States nor the Constitution of Rhode Island is a juvenile who has been found to be delinquent entitled, as a matter of constitutional right, to speak before sentence is imposed. In re Wilkinson, 116 R.I. 163 , 353 A.2d 199, 1976 R.I. LEXIS 1260 (1976).

This provision, giving the defendant the right of allocution or the liberty to speak in his own behalf at time of sentencing, does not vest in the judiciary the power to fashion discretionary sentences independently, and § 12-19-11 prohibiting suspension or probation of mandatory life sentence does not violate such provision. State v. Vaccaro, 121 R.I. 788 , 403 A.2d 649, 1979 R.I. LEXIS 1981 (1979).

The denial of a convicted person’s constitutional right of allocution required vacation of the imposition of concurrent sentences and remand of the case to the superior court for resentencing. Leonardo v. State, 444 A.2d 876, 1982 R.I. LEXIS 856 (R.I. 1982).

A defendant in all criminal prosecutions has the constitutional right to address the court before the trial justice pronounces sentence. The fact that the trial justice has a presentence report before him and affords the defendant the opportunity to speak after the pronouncement is not sufficient. State v. Nicoletti, 471 A.2d 613, 1984 R.I. LEXIS 446 (R.I. 1984).

Violation of defendant’s constitutional right of allocution required remanding the case for resentencing. State v. Brown, 528 A.2d 1098, 1987 R.I. LEXIS 538 (R.I. 1987).

Where the imposition of a consecutive life sentence on a serial killer was otherwise legal, but the original sentencing court failed to allow an opportunity for allocution until after sentence had already been imposed, the sentencing court committed error in failing to vacate and resentence; the resulting sentence was only illegally imposed, however, rather than illegal, so that it could only be challenged within the 120-day time limit provided by rule. State v. DeCiantis, 813 A.2d 986, 2003 R.I. LEXIS 16 (R.I. 2003).

Trial justice erred when he summarily rejected counsel’s request that an applicant be allowed to exercise his right of allocution, under R.I. Const. art. I, § 10 and R.I. Super. Ct. R. Crim. P. 32 (a)(1), prior to sentencing because defense counsel’s request on behalf of his client was utterly clear. While the denial of the applicant’s right of allocution was regrettable, he had not incurred any tangible harm as a result. Gonder v. State, 935 A.2d 82, 2007 R.I. LEXIS 110 (R.I. 2007).

Right to Testify.

Trial court did not abuse its discretion when it denied defendant’s in limine request to exclude his prior manslaughter conviction for purposes of impeaching defendant’s credibility pursuant to R.I. R. Evid. 609 (b) if he chose to testify, as it was of probative value with respect to defendant’s credibility and was not unduly prejudicial; defendant was not denied his constitutional right to testify pursuant to U.S. Const. amends. VI, XIV, and R.I. Const. art. 1, § 10 , as defendant had to make a strategic decision due to his criminal history, and he had no right to testify and also to preclude impeachment by his prior convictions. State v. Drew, 919 A.2d 397, 2007 R.I. LEXIS 40 (R.I. 2007).

Trial court’s finding that it was a reasonable strategic decision for trial counsel to recommend that defendant not testify was supported by the evidence and was not clearly wrong because the trial court found trial counsel’s testimony more credible than the applicant’s testimony; the trial court found that the applicant and trial counsel discussed the issue and that the applicant knowingly and voluntarily accepted trial counsel’s recommendation that he not testify. Merida v. State, 93 A.3d 545, 2014 R.I. LEXIS 106 (R.I. 2014).

Sentencing.

A presentence report dated more than three months prior to sentencing was a substantial compliance with § 12-19-6 and not violative of this section although such report contained reference to fact that defendant was bound over to grand jury for breaking and entering but did not show that grand jury failed to return indictment, the latter event occurring after the date of the presentence report. Knowles v. Langlois, 90 R.I. 445 , 159 A.2d 616, 1960 R.I. LEXIS 45 (1960).

The trial court did not improperly consider in a motion to reduce sentence the defendant’s exercise of his right to stand trial or his corollary right to hold the state to its burden of proving his guilt beyond a reasonable doubt through the presentation of testimony from the child victim, since the defendant forced the child to testify about the molestation in open court by exercising his right to stand trial and by presenting false testimony to the court in the hopes of escaping conviction and punishment, and had indicated his intention to appeal while knowing full well that what the little girl said from the stand was absolutely true. State v. Tiernan, 645 A.2d 482, 1994 R.I. LEXIS 219 (R.I. 1994).

Silence of Defendant.

The doctrine that, after Miranda warnings have been given by a police officer, the state may not present evidence of a defendant’s silence is not applicable when a defendant’s silence is in response to questions from a person who is not a police officer or otherwise acting in an official law enforcement capacity. State v. Martinez, 651 A.2d 1189, 1994 R.I. LEXIS 294 (R.I. 1994).

Speedy Trial.

Where the accused himself has put his mental competency in issue he cannot thereafter claim that his constitutional right or statutory right to a speedy trial has been violated. Genereux v. Pelosi, 96 R.I. 452 , 192 A.2d 630, 1963 R.I. LEXIS 108 (1963).

The defendant’s rights under this section were not violated by one adjournment of fifteen days and another of seven days in his preliminary examination prior to the court’s binding him over to the grand jury and his subsequent indictment. Brady v. Langlois, 104 R.I. 301 , 243 A.2d 906, 1968 R.I. LEXIS 648 (1968).

This section prevents the attorney general from exercising unlimited control over trial calendars so as to result in long periods of pre-trial detention of accused persons. Palmigiano v. Affleck, 327 F. Supp. 1280, 1971 U.S. Dist. LEXIS 12928 (D.R.I. 1971).

In a prosecution for murder where failure to accede to petitioner’s request for a prompt trial was, at least in part, occasioned by his own pre-trial maneuvering, indictments charging him with murder would not be dismissed under either statutory provisions for bail or constitutional guarantee of rights. Marzilli v. Howard, 108 R.I. 309 , 274 A.2d 902, 1971 R.I. LEXIS 1264 (1971).

While the right of an accused to a speedy trial was guaranteed by this section, there was no set period specified and the determination as to whether this right had been denied depended on the circumstances of each case with due consideration given to length of delay, reason for the delay, assertion of sixth amendment rights, and prejudice to the accused. Tate v. Howard, 110 R.I. 641 , 296 A.2d 19, 1972 R.I. LEXIS 962 (1972).

Dismissal of indictment for lack of a speedy trial acted as a bar to any further prosecution for same or closely related offense. State v. Bonsante, 112 R.I. 547 , 313 A.2d 134, 1973 R.I. LEXIS 1018 (1973).

Delay of over two years in prosecuting new trial on a serious crime for which defendant had been once convicted violated defendant’s right to a speedy trial where delay was caused by state’s negligence, there was no evidence defendant sought to avoid the new trial and he could show prejudice due to the delay. State v. King, 112 R.I. 581 , 313 A.2d 640, 1974 R.I. LEXIS 1472 (1974).

Where defendant asserted right to speedy trial but could cite no prejudice and reasons for delay were not stated, fact of 16 months delay was insufficient to constitute denial of due process. State v. Rollins, 113 R.I. 280 , 320 A.2d 103, 1974 R.I. LEXIS 1174 (1974).

In view of the fact defendant’s motion to dismiss for denial of her right to a speedy trial was never pressed or considered in the superior court, the defendant at the appellate level was left to pursue this matter by way of the post-conviction statute. State v. Crescenzo, 114 R.I. 242 , 332 A.2d 421, 1975 R.I. LEXIS 1407 (1975).

The passage of time, standing alone, does not justify a holding that the guarantee to a speedy trial has been violated. State v. Rollins, 113 R.I. 280 , 320 A.2d 103, 1974 R.I. LEXIS 1174 (1974); State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

Where 18 months of the 24-month lapse between defendant’s indictment and trial were directly attributable to his jumping bail, defendant was not denied his right to a speedy trial. State v. Newman, 117 R.I. 354 , 367 A.2d 200, 1976 R.I. LEXIS 1637 (1976).

Trial court erred in dismissing indictment on grounds that the defendant’s right to speedy trial under this section and the Sixth Amendment had been violated, where the court failed to consider the length of delay, the reason for delay, defendant’s previous assertion of his rights, and prejudice to the defendant, and where the court denied the state the opportunity to respond to defendant’s allegations. State v. Paquette, 117 R.I. 505 , 368 A.2d 566, 1977 R.I. LEXIS 1718 (1977).

The guarantee to a speedy trial requires the instigation of prosecution, whether by indictment or arrest. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

A backlog of cases or the normal precedence given to more serious crimes cannot suspend the accused’s right to a speedy trial. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

Although there was a delay of four years between defendant’s indictment and trial, where the state made no deliberate attempt to delay the trial, defendant also having contributed to the delay, and defendant failed to prove she was prejudiced, and lastly where defendant did not make a strong effort to assert her right to a speedy trial, this right was not violated. State v. Crescenzo, 118 R.I. 662 , 375 A.2d 933, 1977 R.I. LEXIS 1506 (1977).

The “arrest” or “accusatory stage” constitutes the starting point for determining whether a defendant has been denied the right to a speedy trial. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

In determining whether a defendant’s speedy-trial right has been violated, the Supreme Court will apply the four-pronged test of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 101 (1972). Thus, it will consider and balance: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendants asserted their right to a speedy trial; and (4) whether the defendants have been prejudiced by the delay. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

The balancing test suggested in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) needs to be invoked only when the length of delay in the peculiar circumstances of the case warrants inquiry into the other factors cited. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

Prejudice suffered by a defendant as a result of the delay may take the form of specific harm to the presentment of a defense or simply the form of personal prejudice such as the loss of employment and family or the experience of public scorn occasioned by having to stand accused for a significant period of time. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

Although there was a 34-month delay between arrest and commencement of trial, there was no evidence of bad faith by the state; both the state and defendants shared responsibility for the delay; and, while defendants had made a demand for a speedy trial, they were not prejudiced by the delay. Therefore, defendants were not denied their right to a speedy trial. State v. Roddy, 401 A.2d 23, 1979 R.I. LEXIS 1807 (R.I. 1979).

The speedy trial right was designed to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense would be hampered. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

Although the gravamen of the right to a speedy trial is to protect the accused, there are other societal interests that are safeguarded by the constitutional requirement of a speedy trial. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

The court has adopted the factors in Baker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) as guidelines in determining whether an accused’s constitutional right to a speedy trial has been violated. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

A court should not allow defendants to count, for purposes of determining the length of delay, periods of time in which defendants fail to timely comply with the state’s request for discovery and thereby profit from their own dilatory tactics. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

A valid reason, such as a missing witness, should serve to justify an appropriate delay. State v. Fortier, 427 A.2d 1317, 1981 R.I. LEXIS 1096 (R.I. 1981).

A defendant’s failure to demand a speedy trial is relevant in deciding whether he has been prejudiced by delay between arrest and commencement of trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Prejudice to the defendant from a delay between his arrest and commencement of his trial may take the form of pretrial incarceration, anxiety and mental strain, or impairment of the defense of the case. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Delay in the commencement of defendant’s trial due in part to a technical flaw in his original indictment was not a deliberate attempt by the state to prejudice defendant. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Where not only did defendant fail to demand a speedy trial but he also contributed to the delay and no serious prejudice to defendant resulted a delay of two and one-half years between arrest and trial did not deny defendant of his right to a speedy trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

If the delay between a defendant’s arrest and commencement of his trial is long enough to be considered “presumptively prejudicial,” the remaining three criteria (the length of the delay, the reason for the delay, and the assertion of the right by the defendant) announced in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), for determining whether there has been a violation of the right to a speedy trial will be examined. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Thirty-two-month delay between accusation of commission of crime and commencement of trial was presumptively prejudicial. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Failure of defendant to assert right to a speedy trial until nearly two years after return of indictment was a factor to be weighed against him in his assertion of the right. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

Where proceedings were delayed as result of defense counsel’s participation in another trial, and where it was unlikely that either defendant or counsel could have anticipated at the time counsel was retained that other trial would go forward well in advance of defendant’s trial, delay could not be attributed to defendant. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

In determining cause for delay in commencement of trial, delay caused by neutral factors such as crowded dockets is weighed less heavily than delay for tactical purposes. State v. Anthony, 448 A.2d 744, 1982 R.I. LEXIS 963 (R.I. 1982).

The four factors to be considered in determining whether a defendant’s right to a speedy trial has been violated are (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right by the accused, and (4) the prejudice to the defendant caused by the delay. State v. Austin, 462 A.2d 359, 1983 R.I. LEXIS 972 (R.I. 1983).

Although felony trials should take place within six months of the indictment, such a policy should not be construed as indicating that a failure to meet that goal in a particular case amounts to a denial of the right to a speedy trial guaranteed by this section and the Sixth Amendment. A “presumptively prejudicial” delay may occur at 12 months in the absence of special circumstances. State v. Tarvis, 465 A.2d 164, 1983 R.I. LEXIS 1076 (R.I. 1983).

Twenty-one month delay from time of arraignment to the time of trial did not violate defendant’s right to a speedy trial, since the state was not solely responsible for the delay, the delay attributable to the state was not tactically motivated, defendant did not actively pursue his right to a speedy trial, and, although defendant was incarcerated for the entire period from his arrest until trial thereby heightening anxiety and mental strain, he was awaiting trial for a most vicious and brutal murder and there was no evidence to support a finding that his ability to conduct his defense was impaired by the incarceration or the passage of time. State v. Adams, 481 A.2d 718, 1984 R.I. LEXIS 601 (R.I. 1984).

The defendant’s assertion that they had suffered emotional trauma from awaiting trial for over a year was an insufficient basis for a claim of denial of a speedy trial. State v. Long, 488 A.2d 427, 1985 R.I. LEXIS 453 (R.I. 1985).

The mere allegation of an unavailable witness is too speculative and clearly insufficient to tip the scales in favor of a defendant in a speedy trial inquiry. State v. McMaugh, 512 A.2d 824, 1986 R.I. LEXIS 506 (R.I. 1986).

Defendant was not denied her right to a speedy trial where a portion of the delay was caused by the granting of her motion for continuance because her attorney was on trial in another jurisdiction. State v. McMaugh, 512 A.2d 824, 1986 R.I. LEXIS 506 (R.I. 1986).

Although court congestion is weighed against the state, it is not weighed so heavily as deliberate delay. State v. Macaskill, 523 A.2d 883, 1987 R.I. LEXIS 453 (R.I. 1987).

Where defendants were neither incarcerated nor under indictment nor subject to bail during the period between the dismissal of one indictment and the issuance of a subsequent indictment, that interval could not be used to determine if there was a violation of the constitutional guarantee of a speedy trial. State v. Macaskill, 523 A.2d 883, 1987 R.I. LEXIS 453 (R.I. 1987).

Where defendant filed demands for a speedy trial at the outset of the case and put the state on notice that no trial had occurred when he moved to gain release on bail pursuant to § 12-13-7 , his actions constituted timely assertion of his right to a speedy trial. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Delay caused by the criminal-court-calendar system that allows a case continued or not reached to go back into the scheduling computer for several months before being placed on the calendar again is usually accorded less weight than is delay deliberately caused by the state in order to gain a tactical advantage over a defendant; however, the ultimate responsibility for such delay must be borne by the government. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Where defendant was arrested on May 28, 1982, arraigned on July 7, 1982, and trial on the indictment began on August 28, 1985, the length of delay was “presumptively prejudicial”. State v. Wheaton, 528 A.2d 1109, 1987 R.I. LEXIS 548 (R.I. 1987).

Six-year delay between defendant’s arraignment and his trial for arson did not violate his right to a speedy trial, where defendant conducted discovery and sought nine separate continuances in the first two years after his arraignment and his counsel later made five additional motions to continue the proceedings. State v. Grundy, 582 A.2d 1166, 1990 R.I. LEXIS 169 (R.I. 1990).

A defendant’s motion to dismiss for lack of a speedy trial is to be assessed according to the four-part test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The elements of the four-part test include (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant. State v. Perez, 605 A.2d 1305, 1992 R.I. LEXIS 69 (R.I. 1992).

Although nearly 18 months elapsed from the date of a defendant’s arrest until the start of his trial, and such delay was sufficient to be presumptively prejudicial, the lack of any prejudice to the defendant as a result of the delay weighed against his claim that the state violated his speedy-trial right. State v. Austin, 643 A.2d 798, 1994 R.I. LEXIS 189 (R.I. 1994).

The defendant’s state and federal constitutional rights to a speedy trial were violated, requiring vacating of conviction for a possession-of-a-firearm charge that was brought to trial almost 11 years after the defendant’s indictment. State v. Powers, 643 A.2d 827, 1994 R.I. LEXIS 201 (R.I. 1994).

For speedy trial purposes, “the line that demarks the ‘presumptively prejudicial’ boundary may be drawn at 12 months. State v. Powers, 643 A.2d 827, 1994 R.I. LEXIS 201 (R.I. 1994).

The defendant was deprived of his right to a speedy trial since the delay lasted five years and was primarily attributable to the negligence of the state. State v. DeAngelis, 658 A.2d 7, 1995 R.I. LEXIS 136 (R.I. 1995).

Although more than five years passed between the defendant’s indictment and the trial, most of that delay was attributable to the defendant’s voluntary and unlawful absence from the state. Accordingly, the trial court found, with no objection from the defendant, that the new speedy trial clock began to run when the defendant was returned to this state. Based on this finding, the length of delay was less than twelve months and, therefore, not presumptively prejudicial, eliminating the requirement to consider the remaining three Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) factors. State v. Bleau, 668 A.2d 642, 1995 R.I. LEXIS 296 (R.I. 1995).

The defendant’s single request to counsel for a speedy trial following the defendant’s extended unlawful absence from the state is clearly insufficient to qualify as an assertion of the right to a speedy trial. State v. Bleau, 668 A.2d 642, 1995 R.I. LEXIS 296 (R.I. 1995).

Although the primary reason for a one and a half year delay between the defendant’s arrest and the start of his trial was court congestion, since some of the delay was due to the fact that the defendant was tried during that time for two other cases that occurred within the same time-frame, and some was due to minor delays attributable to the defendant, the bulk of the delay being attributable to the state was weighted less heavily in a determination of the defendant’s right to a speedy trial because the delay was the product of crowded calendars and not deliberate conduct. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Since, over the course of a year and a half, defendant never requested a speedy trial, but waited until ten months after his arrest to move to dismiss the charges, renewing this motion five months later, defendant’s efforts fell short of indicating a real desire to invoke his constitutional rights and proceed to trial. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Since defendant suffered no prejudice resulting from pre-trial incarceration or disruption of his life, as he was already being held for other crimes committed during a robbery spree, since he presented no evidence in support of his contention that he suffered extraordinary anxiety, and since he made no showing of how the delay in bringing him to trial affected his ability to mount a defense, the defendant suffered no actual prejudice from the delay, and the trial justice correctly denied his motion to dismiss for want of a speedy trial. State v. Austin, 731 A.2d 678, 1999 R.I. LEXIS 103 (R.I. 1999).

Where review of the lack of speedy trial assertions by the defendant revealed that the primary reason that it took 21 months for him to arrive at the courtroom door was because of his difficulty in dealing with his various court-appointed counsel was of his own choosing and fault, there was no violation of his right to a speedy trial. State v. Austin, 742 A.2d 1187, 1999 R.I. LEXIS 228 (R.I. 1999).

Defendant was not denied a speedy trial since, although the state moved for and obtained several continuances, it was not primarily responsible for causing the long delays, most of which were attributable to the defendant’s churning through the seven attorneys who represented him. State v. Verrecchia, 766 A.2d 377, 2001 R.I. LEXIS 46 (R.I. 2001).

Trial court’s denial of defendant’s motion to dismiss charges against him, pursuant to R.I. Super. Ct. R. Crim. P. 12 , based on an alleged violation of the Interstate Agreement on Detainers Act, R.I. Gen. Laws § 13-13-2 , was properly denied where trials would have been commenced within the 180-day period except that continuances were required, which were found to be both necessary and reasonable; accordingly, denial of dismissal for violation of the Act and for an alleged violation of his right to a speedy trial, under R.I. Const. art. I, § 10 , was proper. State v. Werner, 831 A.2d 183, 2003 R.I. LEXIS 145 (R.I. 2003), cert. denied, 540 U.S. 1123, 124 S. Ct. 1083, 157 L. Ed. 2d 921, 2004 U.S. LEXIS 356 (2004).

Trial court did not err by failing to recognize defendant’s remarks at the commencement of his trial as a motion to dismiss for lack of a speedy trial as no such motion was articulated for the trial justice to have made a ruling on, and defendant’s counsel made no such motion. As a result, defendant’s issue on appeal that the trial court erred by denying his pro se motion to dismiss for lack of a speedy trial was deemed unpreserved for appellate review. State v. Bido, 941 A.2d 822, 2008 R.I. LEXIS 2 (R.I. 2008).

Application of the four-factor Barker speedy trial test showed that defendant was not denied the right that defendant had under U.S. Const. amend. VI and R.I. Const. art. I, § 10 . In particular, defendant did not show that he made an explicit request for a speedy trial or that defendant was prejudiced by the 25-month delay between the filing of charges and the start of defendant’s trial. State v. Oliveira, 961 A.2d 299, 2008 R.I. LEXIS 115 (R.I. 2008).

Defense counsel was not ineffective for failing to move to dismiss an indictment on speedy trial grounds; as much of the 14-year delay between the applicant’s arrest and his extradition to Rhode Island was attributable to his flight from the state and his attempts to fight extradition, such a motion would have been denied. Bido v. State, 56 A.3d 104, 2012 R.I. LEXIS 152 (R.I. 2012).

— Retrial.

Defendant was not prejudiced by a delay of 67 months between the reversal of his first conviction and his retrial, where defendant acquiesced in the delay attributable to a codefendant, obtained another delay owing to his fear of improper publicity, and did not generally show an aggressive assertion of his right to a speedy trial. State v. Nordstrom, 529 A.2d 107, 1987 R.I. LEXIS 531 (R.I. 1987).

Defendant’s right to a speedy trial was not violated, even though the 45-month delay between the vacation of the conviction from defendant’s first trial and the commencement of his retrial was presumptively prejudicial, where the primary reasons for the delay were defendant’s first attorney’s unpreparedness for trial and his second attorney’s reasonable trial preparation efforts. In addition, both attorneys failed to assert defendant’s speedy trial rights, defendant acquiesced in the first 17 months of the delay, and he failed to show prejudice. State v. Oliveira, 127 A.3d 65, 2015 R.I. LEXIS 113 (R.I. 2015).

Waiver of Rights.

The determination of whether statements made during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation in order to ascertain whether the accused in fact knowingly and voluntarily decided to waive his rights to remain silent and to have the assistance of counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

Whether a defendant waived his rights voluntarily, knowingly, and intelligently is a question to be decided by the trial justice initially, and the burden is on the state to establish such waiver by clear and convincing evidence. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

The right to counsel, like most other constitutional rights, may be waived. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

Usually, in the absence of coercive pressures, a court will find a waiver of an accused’s right to counsel and privilege against self-incrimination if the defendant was informed of his rights, as required by Miranda, indicated that he understood them, and then voluntarily made a statement. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The prosecution bears a heavy burden in establishing that an accused waived his privilege against compelled self-incrimination and his right to counsel. State v. Fuentes, 433 A.2d 184, 1981 R.I. LEXIS 1493 (R.I. 1981).

The right to a speedy trial is not waived solely by failure to make a demand for a speedy trial. State v. Charette, 434 A.2d 280, 1981 R.I. LEXIS 1260 (R.I. 1981).

Where on cross-examination a prosecution witness invoked his fifth amendment privilege against self-incrimination, any claim that defendant was deprived of his right of confrontation was waived by defendant’s failure to move that the witness’ direct testimony be stricken. State v. Ahmadjian, 438 A.2d 1070, 1981 R.I. LEXIS 1423 (R.I. 1981).

Where attorney from public defender’s office was, without defendant’s knowledge, requested by defendant’s family to represent and advise defendant after his arrest for murder, and thereupon called police station and informed police that she would act as defendant’s counsel if police intended to question defendant, failure of police to inform defendant of the call did not invalidate defendant’s subsequent waiving of his rights and giving of confession where proper Miranda warnings were first given. State v. Burbine, 451 A.2d 22, 1982 R.I. LEXIS 1013 (R.I. 1982).

Defendant’s conviction for sexual assault was reversed where the defendant was denied his right to counsel because his supposed waiver of that right was not established; the court failed to make sure that the record revealed that the defendant’s waiver of his right to counsel was not merely voluntary, but was also knowing and intelligent. The evidence showed that: (1) the defendant did not know that his decision to fire his privately retained attorney just before trial would be construed as a waiver of his right to counsel; (2) he was denied a continuance to seek new counsel; (3) the court rebuffed the prosecutor’s suggestion that the court inquire into defendant’s ability to represent himself; and (4) the defendant strenuously objected to proceeding to trial on a pro se basis, even with standby counsel, and he insisted that he was not acting as his own attorney. State v. Bluitt, 850 A.2d 83, 2004 R.I. LEXIS 106 (R.I. 2004).

Defendant clearly waived his right to counsel under both U.S. Const. amend. VI and R.I. Const. art. 1, § 10 where he rejected eight court appointed attorneys before deciding to proceed pro se with stand by counsel in his criminal trial. The trial court’s rejection of his request during trial to seek private counsel was not an inhibition of his right to counsel. State v. Gordon, 880 A.2d 825, 2005 R.I. LEXIS 173 (R.I. 2005).

Defendant’s statements to police regarding a killing that occurred while defendant was engaged in a gang fight were voluntary because defendant was advised of defendant’s Miranda rights, defendant’s guardian was present during the interview and allowed to converse with defendant privately at several points during the interview, defendant did not appear to be under the influence of alcohol or drugs, and a detective testified that no one made any promises to defendant or otherwise coerced defendant into waiving defendant’s Miranda rights. State v. Monteiro, 924 A.2d 784, 2007 R.I. LEXIS 81 (R.I. 2007).

Although defendant’s waiver of counsel was voluntary, because the magistrate did not undertake steps that would satisfy the magistrate that defendant appreciated the burdens, dangers, and downside risks of self-representation, the waiver was not knowingly and intelligently made. State v. Randall, 37 A.3d 111, 2011 R.I. LEXIS 141 (R.I. 2011).

Defendant knowingly, intelligently, and voluntarily waived the defendant’s right to counsel by demanding removal of three successive counsel appointed to represent the defendant, and repeatedly and forcefully insisting on the right to self-representation, with full explanation by the court of the defendant’s rights and the consequences of waiver. State v. Eddy, 68 A.3d 1089, 2013 R.I. LEXIS 116 (R.I. 2013).

Defendant’s right to counsel was not violated when the trial court allowed her to represent herself at trial because the record established her voluntary, knowing, and intelligent waiver of her right to counsel. The lengthy colloquies between the trial court and defendant showed that her decision to waive counsel was a product of her own free will, the trial court made defendant aware of the dangers and disadvantages of self-representation, and the record was devoid of any concern raised in the colloquy as to her mental competency. State v. Cruz, 109 A.3d 381, 2015 R.I. LEXIS 19 (R.I. 2015).

Trial court did not err in finding that defendant voluntarily waived counsel without the trial court first independently inquiring into defendant’s indigency status, after the Public Defender’s office had found him ineligible; defendant continuously said he had funds to hire counsel, even after claiming he was indigent but was deemed ineligible for Public Defender representation, and R.I. Gen. Laws § 12-15-9 , which defines eligibility requirements for indigent representation, does not expressly mandate or permit a trial justice to review the Public Defender’s finding of ineligibility. Moreover, defendant’s continuous failure to obtain representation demonstrated a voluntary waiver of counsel. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Despite defendant’s claims that he was forced to proceed to trial without counsel, defendant’s continuous failure to obtain representation demonstrated a voluntary waiver of counsel; defendant repeatedly represented that he was able to afford counsel but that he was not comfortable with the retainer payment system, and he was generously granted more than 10 continuances over the course of 14 months, yet he still failed to procure representation. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Trial court did not err in finding that defendant knowingly and intelligently waived his right to counsel because (1) defendant was told of the seriousness of the situation, (2) defendant’s alleged lack of understanding that he would have to proceed pro se if he did not hire counsel did not show a constitutionally inadequate waiver, (3) the appellate court deferred to the trial justice’s finding that defendant intentionally manipulated the proceedings, (4) defendant’s mental competency was not at issue, (5) defendant’s technical legal knowledge did not have to be assessed, and (6) defendant was clearly warned of the dangers of proceeding pro se. State v. Souto, 210 A.3d 409, 2019 R.I. LEXIS 96 (R.I. 2019).

Collateral References.

Adequacy of Defense Counsel’s Representation Concerning Sex Offender Registration. 32 A.L.R.7th Art. 4 (2018).

Adequacy of defense counsel’s representation of criminal client — Conduct at trial regarding issues of insanity. 95 A.L.R.5th 125.

Adequacy of defense counsel’s representation of criminal client — Daubert or Frye challenge to expert witness testimony. 103 A.L.R.6th 247.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Entrapment Defense — State Cases. 43 A.L.R.6th 475.

Adequacy of defense counsel’s representation of criminal client — issues of mental matters concerning persons, other than counsel’s client, who are involved in criminal case. 80 A.L.R.5th 55.

Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Entrapment Defense — Federal Cases. 42 A.L.R. Fed. 2d 145.

Adequacy of defense counsel’s representation of criminal client regarding guilty pleas — Coercion or duress. 19 A.L.R.6th 411.

Adequacy of defense counsel’s representation of criminal client regarding guilty pleas — Probation, parole, or pardon possibilities. 31 A.L.R.6th 49.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues — Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Allegedly deficient investigation of, other than counsel’s purported complete failure to investigate, client’s mental illness or dysfunction. 9 A.L.R.7th Art. 4 (2016).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Allegedly deficient preparation of witness or presentation of evidence regarding client’s mental illness or dysfunction. 2 A.L.R.7th Art. 1 (2015).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Counsel’s purported complete failure to investigate client’s mental illness or dysfunction. 6 A.L.R.7th Art. 3 (2015).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Deficient presentation of evidence, or failure to present evidence, regarding client’s drug or alcohol use, other than as result of lack of investigation. 11 A.L.R.7th Art. 4 (2016).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Failure to present evidence regarding client’s mental illness or dysfunction, other than as result of lack of investigation. 7 A.L.R.7th Art. 3 (2016).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Investigation of client’s drug or alcohol use. 10 A.L.R.7th Art. 3 (2016).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state death penalty case — Investigation of, and presentation of evidence regarding client’s low intelligence or mental retardation. 5 A.L.R.7th Art. 6 (2015).

Adequacy, under Strickland Standard, of defense counsel’s representation of client in sentencing phase of state court death penalty case — Investigation of, and presentation of evidence regarding, client’s brain damage or abnormality. 102 A.L.R.6th 417.

Adoption and Use of Justice Kennedy’s Concurrence in Missouri v. Seibert Concerning “Two-Stage” or “Question-First” Interrogation Procedure. 46 A.L.R.7th Art. 1 (2019).

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 A.L.R.5th 1.

Application of Confrontation Clause Rule to Interpreter’s Translations or Other Statements — Post-Crawford Cases. 26 A.L.R.7th Art. 1 (2017).

Application of Crawford Confrontation Clause Rule to alcohol and drug forensic analysis and related documents. 3 A.L.R.7th Art. 4 (2015).

Application of Crawford Confrontation Clause Rule to Autopsy Testimony and Related Documents. 18 A.L.R.7th Art. 6 (2017).

Application of Crawford Confrontation Clause Rule to DNA Analysis and Related Documents. 17 A.L.R.7th Art. 3 (2016).

Basis for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer. 33 A.L.R.6th 1.

Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel — State Cases Concerning Waiver of Conflict: Form and Context of Waiver, Duty of Court and Counsel, Responsibilities of Defendant, Impact of Applicable Rules and Regulations, Colloquy Related to Waiver, and Discretion and Analysis of Court. 19 A.L.R.7th Art. 3 (2017).

Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel — State Cases Concerning Waiver of Conflict: General Considerations, Related Adjudications and Hearings, and Role of Attorney, Attorney’s Prior Representation of Party or Witness as Creating Conflict, and Counsel’s Relationships and Associations. 18 A.L.R.7th Art. 3 (2017).

Claims of Ineffective Assistance of Counsel in Death Penalty Proceedings — United States Supreme Court Cases. 31 A.L.R. Fed. 2d 1.

Clothing worn by criminal defendant in photograph in array shown by police to witness as factor in determination of whether circumstances of witness’s identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law. 2 A.L.R.7th Art. 2 (2015).

Comment Note: propriety and prejudicial effect of compelling accused to wear prison clothing at jury trial — State cases. 99 A.L.R.6th 295.

Construction and Application of American Bar Association Standards in Determining Ineffective Assistance of Counsel. 24 A.L.R.7th Art. 5 (2017).

Construction and Application by State Courts of Supreme Court’s Ruling in Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), That Defense Counsel Has Obligation to Advise Defendant That Entering Guilty Plea Could Result in Deportation. 74 A.L.R.6th 373.

Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968, as amended ( 18 U.S.C. § 3501(c)), that defendant’s confession shall not be inadmissible in evidence in federal criminal prosecution solely because of delay in presentment before magistrate. 124 A.L.R. Fed. 263.

Construction and Application of Sixth Amendment Right to Counsel — Supreme Court Cases. 33 A.L.R. Fed. 2d 1.

Construction and application of Sixth Amendment Right to speedy trial — Supreme Court Cases. 17 A.L.R. Fed. 3d Art. 4 (2016).

Construction and Application of Speedy Trial Act, 18 U.S.C. §§ 3161 to 3174 — United States Supreme Court Cases. 46 A.L.R. Fed. 2d 129.

Criminal defendant’s age or height as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law. 102 A.L.R.6th 365.

Criminal Defendant’s Eyes, Lips, Nose, Ears, or Other Facial Feature or Expression as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 23 A.L.R.7th Art. 6 (2017).

Criminal defendant’s facial hair as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law. 7 A.L.R.7th Art. 4 (2016).

Criminal Defendant’s Glasses, Jewelry, or Gold Teeth as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 19 A.L.R.7th Art. 7 (2017).

Criminal defendant’s hair color or style as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law. 5 A.L.R.7th Art. 5 (2015).

Criminal defendant’s race or skin color as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law. 6 A.L.R.7th Art. 5 (2015).

Criminal Defendant’s Tattoos, Scars, or Injuries as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 21 A.L.R.7th Art. 6 (2017).

Criminal Defendant’s Weight, Build or Body Type as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 17 A.L.R.7th Art. 5 (2016).

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 A.L.R.5th 225.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 A.L.R.5th 327.

Determination of Request for Exclusion of Public from State Criminal Trial in Order to Preserve Safety, Confidentiality, or Well-Being of Witness Who Is Not Undercover Police Officer — Issues of Proof, Consideration of Alternatives, and Scope of Closure. 32 A.L.R.6th 171.

Distinctive quality of criminal defendant’s photograph in array shown by police to witness as factor in determination of whether circumstance of witness’s identification of defendant, as person in photograph, were impermissibly suggestive as matter of federal constitutional law. 3 A.L.R.7th Art. 5 (2015).

Examination and challenge of state case jurors on basis of attitudes toward homosexuality. 80 A.L.R.5th 469.

Failure of police to preserve potentially exculpatory evidence as violating criminal defendant’s rights under state constitution. 40 A.L.R.5th 113.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 A.L.R.5th 611.

Failure of state prosecutor to disclose existence of plea bargain or other deals with witness as violating due process. 12 A.L.R.6th 267.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 A.L.R.5th 393.

Forcible administration of antipsychotic medication to pretrial detainees — Federal cases. 188 A.L.R. Fed. 285.

Inattention of juror from sleepiness or other cause as ground for reversal or new trial. 59 A.L.R.5th 1.

Increase in base offense level under sentencing guidelines § 3B1.3 ( 18 U.S.C. Appx § 3B1.3) for abuse of position of public or private trust significantly facilitating commission or concealment of offense. 121 A.L.R. Fed. 323.

Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration consequences of waiver of jury trial. 103 A.L.R. Fed. 867.

Ineffective assistance of counsel: use or nonuse of interpreter at prosecution of hearing-impaired defendant. 86 A.L.R.4th 698.

Manner in which photographic array shown by police to witness is displayed, or police officer’s alleged nonverbal cues, as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law. 8 A.L.R.7th Art. 5 (2016).

Mug shot characteristics of criminal defendant’s photograph as factor in determination of whether circumstances of witness’s identification of defendant in photographic array shown by police to witness were impermissibly suggestive as matter of federal constitutional law. 16 A.L.R.7th Art. 3 (2016).

Necessity that waiver of accused’s right to testify in own behalf be on the record. 90 A.L.R.4th 586.

Police statement that photographic array shown to witness contained or might contain criminal suspect or known criminal as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law. 12 A.L.R.7th Art. 3 (2016).

Police statement, other than one that photographic array shown to witness contained or might contain criminal suspect or known criminal, as factor in determination of whether circumstances of witness’s identification of criminal defendant, as person in photograph within array, were impermissibly suggestive as matter of federal constitutional law. 9 A.L.R.7th Art. 3 (2016).

Presence of Criminal Defendant in Prior Physical Show-up, Physical Lineup, or Surveillance Video as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 24 A.L.R.7th Art. 8 (2017).

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelling incriminating testimony—post- Kastigar cases. 29 A.L.R.5th 1.

Release of Criminal Defendant’s Photograph to Media as Factor in Determination of Whether Circumstances of Witness’s Identification of Defendant in Photographic Array Shown by Police to Witness Were Impermissibly Suggestive as Matter of Federal Constitutional Law. 23 A.L.R.7th Art. 7 (2017).

Reverse-Franks Claims, Where Police Arguably Omit Facts from Search or Arrest Warrant Affidavit Material to Finding of Probable Cause with Reckless Disregard for the Truth — Underlying Sexual Offenses. 74 A.L.R.6th 69.

Right of accused to have evidence or court proceedings interpreted, because accused or other participant in proceedings is not proficient in the language used. 32 A.L.R.5th 149.

Right of defendant in prosecution for perjury to have the “two witnesses, or one witness and corroborating circumstances,” rule included in charge to jury — state cases. 41 A.L.R.5th 1.

Right of enemy combatant to counsel. 184 A.L.R. Fed. 527.

Right of indigent defendant in state criminal case to assistance of psychiatrist or psychologist. 85 A.L.R.4th 19.

Validity and efficacy of minor’s waiver of right to counsel — Cases decided since application of Gault , 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). 101 A.L.R.5th 351.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — In Nonpolice Vehicle for Traffic Stop. 56 A.L.R.6th 323.

What constitutes assertion of right to counsel following Miranda warnings — state cases. 83 A.L.R.4th 443.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At School. 59 A.L.R.6th 393.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Suspect’s Place of Employment or Business. 58 A.L.R.6th 439.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect be Informed of Federal Constitutional Rights Before Custodial Interrogation — Where Unspecified as to Precise Location of Roadside Questioning by Law Enforcement Officers. 58 A.L.R.6th 215.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Nonpolice Vehicle for Other Than Traffic Stop. 57 A.L.R.6th 83.

When does delay in imposing sentence violate speedy trial provision. 86 A.L.R.4th 340.

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed photographs to multiple witnesses. 11 A.L.R.7th Art. 3 (2016).

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness fewer than six photographs in one session. 1 A.L.R.7th Art. 6 (2015).

Witness’s identification of criminal defendant, as person in photograph shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed single witness photographs on more than one occasion. 10 A.L.R.7th Art. 5 (2016).

Witness’s identification of criminal defendant in photographic array shown by police, as resulting from impermissibly suggestive circumstances, as matter of federal constitutional law, where police showed two or more photographs of defendant in same array. 15 A.L.R.7th Art. 4 (2016).

§ 11. Relief of debtors from prison.

The person of a debtor, when there is not strong presumption of fraud, ought not to be continued in prison, after such person shall have delivered up property for the benefit of said person’s creditors, in such manner as shall be prescribed by law.

Cross References.

Statutory provisions, § 10-13-1 et seq.

NOTES TO DECISIONS

In General.

This section by implication authorizes legislation as to the mode, terms, and conditions upon which a debtor can convey his property for the benefit of creditors. Merrill v. Bowler, 20 R.I. 226 , 38 A. 114, 1897 R.I. LEXIS 91 (1897).

The levy on the body of delinquent poll taxpayer provided by G.L. 1896, ch. 47, § 6 [G.L. 1938, ch. 35, § 3] did not conflict with this section because the statute also provided for discharge from jail in due course of law. In re Delinquent Poll Tax, 21 R.I. 582 , 44 A. 805, 1899 R.I. LEXIS 111 (1899).

A statute requiring the payment of wages to employees within a specified time and providing imprisonment for violation is not unconstitutional as providing imprisonment for debt. State v. Feist, 115 R.I. 201 , 341 A.2d 725, 1975 R.I. LEXIS 1142 (1975).

§ 12. Ex post facto laws — Laws impairing obligation of contract.

No ex post facto law, or law impairing the obligation of contracts, shall be passed.

Cross References.

Federal prohibition of ex post facto laws and impairment of obligation of contracts, U.S. Const., Art. I, § 10.

Law Reviews.

Andre S. Digou, A View of the Rhode Island Pension Landscape: The Potential Reform of Local Pension Plans Under the Preemption Doctrine, 19 Roger Williams U. L. Rev. 740 (2014).

William C. Burnham, Comment: Public Pension Reform and the Contract Clause: A Constitutional Protection for Rhode Island’s Sacrificial Economic Lamb, 20 Roger Williams U. L. Rev. 523 (2015).

Tyler Martin, 2019 Survey: Cranston Police Retirees Action Comm. v. City of Cranston, 25 Roger Williams U. L. Rev. 564 (2020).

Comparative Provisions.

Ex post facto laws:

Mass. Const. Pt. 1, Art. 24.

NOTES TO DECISIONS

Ex Post Facto Laws.

Where the case under consideration did not involve the imposition of penal sanctions, but rather of liability under the former Dram Shop Act, the constitutional prohibition against ex post facto laws did not affect the validity of the retroactive application of the 1977 amendment to § 3-8-1 , prohibiting beverage sales to intoxicated persons. Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 1987 R.I. LEXIS 451 (R.I. 1987).

Ex post facto clause in both the state and federal constitutions only prohibits retroactive penal legislation. The town charter amendments in question provided no criminal penalties and the loss of employment at most was merely a civil penalty. Town of W. Warwick v. Local 1104, Int'l Ass'n of Firefighters, 745 A.2d 786, 2000 R.I. LEXIS 48 (R.I. 2000).

The entering of pleas of nolo contendere constituted pleas of guilty and conviction of the charged offenses for the purposes of a town charter providing for dismissal of town employees convicted of a felony, and subsequent amendments to the charter mandating dismissal for pleas of nolo contendere were not material to the case and had no effect on its outcome. Town of W. Warwick v. Local 1104, Int'l Ass'n of Firefighters, 745 A.2d 786, 2000 R.I. LEXIS 48 (R.I. 2000).

— Crimes.

R.S. 1857, ch. 73, which prohibited manufacturers and others from selling or keeping for sale liquors which may have been manufactured or purchased prior to the passage of the act, was not an ex post facto law in the constitutional sense, since it did not criminally punish persons selling liquors prior to its passage, but the criminal penalties were prospective only. State v. Paul, 5 R.I. 185 , 1858 R.I. LEXIS 12 (1858).

An interpretation of the amendment to G.L. 1938, ch. 496, § 18 by P.L. 1945, ch. 1560 [§ 12-19-19 ] under which the provisions of the amendment were made applicable to deferred sentence agreements entered into between the attorney-general and the defendant after the enactment of the amendment, although the crime was committed prior to the amendment, was not an interpretation amounting to an ex post facto law, since the deferred sentence provisions are a privilege accorded the defendant and do not affect his substantive rights. State v. Carmello, 83 R.I. 303 , 116 A.2d 464, 1955 R.I. LEXIS 67 (1955).

Contrary to defendant’s claim, the ex post facto clause was not implicated, as defendant was charged under a repealed statute, not with or penalized under a retrospective statute. State v. Pereira, 973 A.2d 19, 2009 R.I. LEXIS 75 (R.I. 2009).

— Domestic Relations.

In a proceeding under P.L. 1926, ch. 843 [§ 15-8-1 et seq.] to require defendant to contribute to support child born out of wedlock, the fact that the child was born prior to date of act did not grant the defendant any immunity under this section. Cummings v. Church, 50 R.I. 71 , 145 A. 102, 1929 R.I. LEXIS 16 (1929).

— Parole and Probation.

Parole is not a right; it is a privilege which the legislature may confer, withhold or withdraw, and the conditions under which it may be obtained may be changed at any time before parole is granted. Rondoni v. Langlois, 89 R.I. 373 , 153 A.2d 163, 1959 R.I. LEXIS 98 (1959).

Parole board determination in regard to convict’s parole-eligibility status was not the equivalent of a rule subject to ex post facto clauses of the Rhode Island and United States Constitutions. Lerner v. Gill, 463 A.2d 1352, 1983 R.I. LEXIS 1052 (R.I. 1983).

Where the statute on parole eligibility had not been changed, procedural guidelines adopted and applied by the parole board after sentencing of petitioner were not in violation of prohibition against ex post facto laws. Skawinski v. State, 538 A.2d 1006, 1988 R.I. LEXIS 24 (R.I. 1988).

Imposition of probation supervision fees upon probationers convicted and placed on probation prior to the effective date of § 42-56-38 , creating the supervision fees, violated the ex post facto clause of the state constitution. Taylor v. Rhode Island, 101 F.3d 780, 1996 U.S. App. LEXIS 31159 (1st Cir. 1996), cert. denied, 521 U.S. 1104, 117 S. Ct. 2480, 138 L. Ed. 2d 989, 1997 U.S. LEXIS 3883 (1997).

Policy restricting the out-of-state travel of sex offender probationers was not unconstitutional because prior to the implementation of the policy, the probationer was required by his plea agreement to seek permission from the sentencing court or the department of corrections in order to leave Rhode Island; by formalizing the conditions under which the court or the department of corrections could grant such permission, the policy did not increase retroactively the measure of the probationer’s punishment. Pelland v. Rhode Island, 317 F. Supp. 2d 86, 2004 U.S. Dist. LEXIS 8125 (D.R.I. 2004).

— Regulation.

G.L. 1923, ch. 125 [§ 46-12-1 et seq.], providing for purification of waters, is not unconstitutional on the ground that it is an ex post facto law contrary to this section, since chapter was passed for the purpose of discontinuing practices dangerous to the public health and therefore looks to the future rather than to the past. Board of Purification of Waters v. East Providence, 47 R.I. 431 , 133 A. 812, 1926 R.I. LEXIS 78 (1926).

Provision of P.L. 1932, ch. 1886 [§ 5-33-9] which stated that no person who “has promoted . . . or has participated in . . . any scheme or plan in the nature of a burial association . . . wherein there is any element of fraud” should be entitled to certification as an undertaker did not not violate ex post facto provision of this section as this section is limited to matters of a criminal nature. Prata Undertaking Co. v. State Bd. of Embalming & Funeral Directing, 55 R.I. 454 , 182 A. 808, 1936 R.I. LEXIS 5 (1936).

— Sex Offender Registration.

R.I. Gen. Laws § 11-37.1-15 did not violate the prohibition against ex post facto laws, because the sex offender registration process was a civil regulatory process. State v. Germane, 971 A.2d 555, 2009 R.I. LEXIS 68 (R.I. 2009).

Where defendant was convicted in 1994 for a 1993 child molestation sexual assault offense, and the statutes were subsequently amended in 1996, 1997, and 2003 extending the duration of a defendant’s duty to register as a sex offender and increasing the penalty for registration violations, defendant’s failure-to-notify convictions in 2007, 2009, and 2010 did not run afoul of the Ex Post Facto Clauses of the United States and Rhode Island Constitutions. The duration of defendant’s duty to register was merely a condition attached to a civil, nonpunitive regulatory measure, not the imposition of retroactive punishment. State v. Gibson, 182 A.3d 540, 2018 R.I. LEXIS 98 (R.I. 2018).

Where defendant was convicted in 1994 for a 1993 child molestation sexual assault offense, and the sex offender registration statutes were subsequently amended in 1996 and 2003, increasing the penalty for registration violations, defendant’s failure-to-notify convictions in 2007, 2009, and 2010 did not run afoul of the Ex Post Facto Clauses of the United States and Rhode Island Constitutions. The increased penalty was already in effect before defendant’s failures to notify occurred, and the failures to notify were offenses separate and apart from the second-degree child molestation sexual assault of 1993, rendering them insufficiently annexed to that crime as to trigger an ex post facto violation. State v. Gibson, 182 A.3d 540, 2018 R.I. LEXIS 98 (R.I. 2018).

— Taxation.

The provision of G.L. 1923, ch. 39, § 5 [former § 44-22-7] which stated that exercise of a power of appointment was taxable “whether before or after the enactment of this chapter” was not an ex post facto law, since it did not deal with a crime. Manning v. Board of Tax Comm'rs, 46 R.I. 400 , 127 A. 865, 1925 R.I. LEXIS 9 (1925).

Tax statutes may be given reasonable retroactive operation. Application of proposed income tax to income earned or received during that portion of the calendar year of 1961 that precedes the enactment during 1961 of H. 1549 was not constitutionally objectionable. Opinion to Governor, 93 R.I. 28 , 170 A.2d 908, 1961 R.I. LEXIS 74 (1961).

Obligation of Contract.

An act which affects remedies only is not void as impairing the obligation of contracts. Stokes v. Rodman, 5 R.I. 405 , 1858 R.I. LEXIS 58 (1858).

Question whether a contract is constitutional, when legislature makes a general appropriation and agency to which appropriation has been made, enters into a contract with another, is to be determined by terms of contract and not by the provisions of appropriation act. In re Advisory Opinion to Senate, 108 R.I. 302 , 275 A.2d 256, 1971 R.I. LEXIS 1263 (1971).

Where funds have been appropriated to board of regents in accordance with law which would make it obligatory on the board to distribute the funds, such obligation could not be relieved by the general assembly later withdrawing funds from such appropriation. In re Advisory Opinion to Senate, 108 R.I. 302 , 275 A.2d 256, 1971 R.I. LEXIS 1263 (1971).

Retroactive repeal of statute (§ 30-21-3 ) conferring seniority rights or benefits on eligible veterans did not violate the contract clause of either the federal or the state constitution. Brennan v. Kirby, 529 A.2d 633, 1987 R.I. LEXIS 550 (R.I. 1987).

The Rhode Island Depositors Economic Protection Act of 1991 does not constitute a law impairing the obligation of contracts in violation of the state and federal constitutions. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Section 27-34-11(b)(1), which authorizes the Rhode Island Insurers’ Insolvency Fund to recover the amounts of claims paid by insolvent insurance companies to any insured with a net worth exceeding fifty million dollars, does not unconstitutionally impair the obligation of contracts under this section. Rhode Island Insurer's Insolvency Fund v. Leviton Mfg. Co., 716 A.2d 730, 1998 R.I. LEXIS 261 (R.I. 1998), cert. denied, 525 U.S. 1068, 119 S. Ct. 797, 142 L. Ed. 2d 659, 1999 U.S. LEXIS 125 (1999).

— Public Officers and Employees.

The amendment by P.L. 1961, ch. 29 of § 36-4-42 to limit the right of appeal to persons only who have probationary or permanent status in the classified service was held to be not unconstitutional in suit brought by senior engineering aide in the department of public works who had sought to appeal from an order of an appointing authority terminating his temporary appointment, the legislature being held to be within its power in making such amendment since except where prohibited by other constitutional provisions, it has the power to deal with a public officer as distinguished from an employment under a contract absolutely as it pleases, there being a complete absence in the act of anything indicating a legislative intent to establish a contractual relationship between state and such employees. Rounds v. Parshley, 94 R.I. 99 , 178 A.2d 444, 1962 R.I. LEXIS 38 (1962).

Incentive Pay Statute, R.I. Gen. Laws § 42-56.1-1 et seq., which required the state to pay educational incentive funds to qualified full-time correctional officers, did not result in the creation of either a bilateral or a unilateral contract. R.I. Bhd. of Corr. Officers v. Rhode Island, 264 F. Supp. 2d 87, 2003 U.S. Dist. LEXIS 8899 (D.R.I. 2003), aff'd, 357 F.3d 42, 2004 U.S. App. LEXIS 1266 (1st Cir. 2004).

Amendments to R.I. Gen. Laws § 36-12-4 which reduced the state’s contribution to retired state employees’ health benefits did not violate the contracts clauses in R.I. Const. art. I, § 12 or U.S. Const. art. I, § 10 because the state and the state’s employees had no contract when the changes took effect, as (1) a prior collective bargaining agreement (CBA) between the state and the employees had been validly terminated pursuant to the CBA’s terms, (2) any continuing employee rights did not exist by virtue of the CBA, and (3) the CBA did not vest health benefits in employees who had not retired. Rhode Island Council 94 v. Rhode Island, 705 F. Supp. 2d 165, 2010 U.S. Dist. LEXIS 36582 (D.R.I. 2010).

Ordinances suspending retirees’ cost of living adjustment benefit for 10 years did not offend the Contract Clauses of the United States and Rhode Island Constitutions because the substantial impairment of contract rights remedied a fiscal emergency and was reasonable and necessary, as alternatives were considered and less drastic measures were unavailable. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Trial justice’s finding had to be reconsidered that a municipal budget commission violated the Contract Clause of the R.I. Constitution when it altered retired city employees’ rights to free lifetime healthcare benefits because the trial justice applied the wrong standard and gave no deference to the city. A “less deference” standard should be applied to the requirement that a city prove that a substantial impairment to contractual rights was nonetheless reasonable and necessary to fulfill an important public purpose. Hebert v. City of Woonsocket, 213 A.3d 1065, 2019 R.I. LEXIS 112 (R.I. 2019).

If the trial court determines on remand that the budget commission did not violate the Contract Clause when it altered the retirees’ right to free lifetime healthcare, the requirement that the retirees pay deductibles on their health insurance should be of a finite and reasonable duration as the city is now on the mend financially. Hebert v. City of Woonsocket, 213 A.3d 1065, 2019 R.I. LEXIS 112 (R.I. 2019).

Trial court erred in finding that the length of time of the suspension of the police and fire department retirees’ cost-of-living adjustments (COLA) was reasonable and necessary to fulfill an important public purpose because the COLA suspensions were for an indefinite period of time; the suspensions were until the pension plan became 70% funded, and that was unreasonable. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

Trial court erred in finding that a city did not impair its contractual obligation under the Contracts Clause to police and fire department retirees because the finding was constructed on the faulty premise the retirees were receiving supplemental medical benefits under a hybrid plan; the healthcare coverage provided by the city before the passage of its Medicare ordinance was not the equivalent to coverage consisting only of basic Medicare benefits. Andrews v. Lombardi, 233 A.3d 1027, 2020 R.I. LEXIS 60 (R.I. 2020).

— Regulation.

R.S. 1857, ch. 73, which prohibited manufacturers and others from selling or keeping for sale liquors which may have been manufactured or purchased prior to the passage of the act, did not impair contractual obligations since contractual rights are subject to police powers of the state and the right to sell liquors is within the police power. State v. Paul, 5 R.I. 185 , 1858 R.I. LEXIS 12 (1858).

G.L. 1909, ch. 237, § 17, as amended by P.L. 1909, ch. 404 [former §§ 19-11-9 to 19-11-12 ], requiring savings bank deposits to be paid to general treasurer subject to repayment to one establishing right thereto, did not impair obligation of contract contrary to this section, where charter of bank required all income or profit from deposits to be divided among depositors in just proportion. Greenough v. People's Sav. Bank, 38 R.I. 100 , 94 A. 706, 1915 R.I. LEXIS 45 (1915).

A legislative act which authorized public service corporation under its charter to obtain assets of other companies and, upon the appraisal of the stock of minority stockholders, permitted the old company to take the stock of its minority stockholders by eminent domain, did not impair the obligation of contract, as any kind of property can be taken for a public use, including a franchise, and the shares of stock merely represented an undivided interest in the franchise and property of the old corporation. Narragansett Elec. Lighting Co. v. Sabre, 50 R.I. 288 , 146 A. 777, 1929 R.I. LEXIS 64 (1929).

P.L. 1935, ch. 2190 [§ 11-27-1 et seq.], defining the practice of law, did not constitute an impairment of contract, since it was a valid exercise of the police power. Creditors' Serv. Corp. v. Cummings, 57 R.I. 291 , 190 A. 2, 1937 R.I. LEXIS 101 (1937).

— Remedies.

A tort judgment is not a contract, so that a special act by the legislature which conferred jurisdiction upon the court to administer the poor debtor’s oath under R.S. 1857, ch. 198 [§ 10-13-1 et seq.] to a particular tort debtor, was not in violation of this provision. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

A writ of habeas corpus was properly issued to release a stockholder who had been committed to jail on execution issued against him under G.S. 1872, ch. 142, § 20 upon a judgment recovered against the corporation, when after his commitment P.L. 1877, ch. 600 [former § 7-1-24 ] was enacted, providing that stockholders should not be imprisoned upon such an execution, because the statute affected the creditor’s remedy only and did not impair the obligations of his contract, since the right to have the stockholder imprisoned was not a part of the contract. In re Penniman, 11 R.I. 333 , 1876 R.I. LEXIS 19 (1876), aff'd, 103 U.S. 714, 26 L. Ed. 602, 1880 U.S. LEXIS 2184 (1881).

P.L. 1876, ch. 563, § 7 [former § 9-2-3 ], which declared that no action should be defeated by a misjoinder of the parties if the matter could be dealt with and settled between the parties before the court, applied though act was enacted while suit was pending, since a remedial statute applies to pending actions if it does not violate vested rights nor impair the obligation of contracts. Grinnell v. Marine Guano & Oil Co., 13 R.I. 135 , 1880 R.I. LEXIS 61 (1880).

Statute providing for discharge of debt due from the garnishee to the debtor upon payment on judgment against debtor does not impair the obligations of a contract, since the payment of the debt to the attaching plaintiff is in satisfaction of the judgment against the defendant debtor in the amount paid. Cross v. Brown, 19 R.I. 220 , 33 A. 147, 1895 R.I. LEXIS 71 (1895), aff'd, 175 U.S. 396, 20 S. Ct. 131, 44 L. Ed. 211, 1899 U.S. LEXIS 1573 (1899).

In suit by assignee of debtor to recover property transferred to creditor in satisfaction of a debt, it could not be contended that G.L. 1909, ch. 339 [G.L. 1923, ch. 390], permitting recovery, was void on the ground that statute impaired the obligation of the contract since debt was due at the time the statute was passed, as only the value of the contract was impaired and not the obligation. Lace v. Smith, 34 R.I. 1 , 82 A. 268, 1912 R.I. LEXIS 26 (1912).

One allegedly sustaining damages due to the state’s repudiation of an appropriation must seek special legislation providing the right to sue. In re Advisory Opinion to Senate, 108 R.I. 302 , 275 A.2d 256, 1971 R.I. LEXIS 1263 (1971).

— Schools.

P.L. 1903, ch. 1101, changing the title in school property from the district to the town where the property was located, was not invalid on the ground that the act impaired the obligation of contract, since the education of children is a duty imposed by law and not a duty imposed by contract. In re School Comm., 26 R.I. 164 , 58 A. 628, 1904 R.I. LEXIS 39 (1904).

— Taxation.

G.S. 1872, ch. 41, § 7 [G.L. 1896, ch. 48, § 7], under which the tax assessor could levy on and sell mortgaged property to pay the total taxes due on real estate owned by the mortgagor, including taxes assessed against property other than the property sold, did not violate this section, since the mortgagee took his mortgage subject to the liability created by that statute. People's Sav. Bank v. Tripp, 13 R.I. 621 , 1882 R.I. LEXIS 53 (1882).

The provision of G.L. 1923, ch. 39, § 5 [former § 44-22-7], which stated that exercise of power of appointment was taxable “whether exercised before or after the enactment of the chapter,” did not impair obligation of contract, since the thing taxed was solely a right or a privilege. Manning v. Board of Tax Comm'rs, 46 R.I. 400 , 127 A. 865, 1925 R.I. LEXIS 9 (1925).

Collateral References.

State statutes or ordinances requiring persons previously convicted of crime to register with authorities. 36 A.L.R.5th 161.

§ 13. Self-crimination.

No person in a court of common law shall be compelled to give self-criminating evidence.

Cross References.

Federal guaranty as to self-incrimination, U.S. Const., Amend. 5.

Testimony against spouse, § 9-17-13 .

Law Reviews.

2004 Survey of Rhode Island Law: Case: Criminal Law, see 10 Roger Williams U. L. Rev. 875 (2005).

Jonathan Stark-Sachs, 2019 Survey: State v. Beauregard, 25 Roger Williams U. L. Rev. 576 (2020).

Comparative Provisions.

Self-incrimination:

Conn. 1965 Const., art. First, § 8.

Mass. Const. Pt. 1, Art. 12.

NOTES TO DECISIONS

Applicability.

A defendant in a criminal trial had a right to refuse to answer whether or not he had played “roulette” in an alleged gambling place. Ex parte Werner, 46 R.I. 1 , 124 A. 195, 1924 R.I. LEXIS 34 (1924).

Defendant who was compelled to stand up during trial to allow witness to confirm his identification was not denied protection under this section where defendant had already been substantially identified by witness and was asked to stand solely to confirm such prior identification. State v. De Cesare, 68 R.I. 32 , 26 A.2d 237, 1942 R.I. LEXIS 28 (1942).

In a criminal prosecution, the trial court’s granting of the state’s motion to have the jury view the premises was not in violation of the defendant’s constitutional rights, as the object of a view was not to get evidence but to enable the jury to more clearly understand the evidence presented at the trial. State v. Smith, 70 R.I. 500 , 41 A.2d 153, 1945 R.I. LEXIS 5 (1945).

Where certain implements were seized by the police officers on a search of a chiropractor’s office, in his presence and without objection by him, no force, misrepresentation or trickery having been used by the officers, such evidence could be admitted in evidence and his objection could not be raised for the first time at the trial. State v. Lorenzo, 72 R.I. 175 , 48 A.2d 407, 1946 R.I. LEXIS 55 (1946).

A medical examination given to determine whether the defendant was intoxicated and thereby guilty of an offense under P.L. 1950, ch. 2595, art. 24 [§ 31-27-1 et seq.] did not violate the defendant’s privilege against self-incrimination, when he voluntarily submitted to the examination after being informed of his rights under § 2(b) of that article [§ 31-27-3 ], and when the medical report was admitted in evidence without an objection by the defendant. State v. Chavis, 83 R.I. 360 , 116 A.2d 453, 1955 R.I. LEXIS 63 (1955).

Since inquiry before liquor control administration for suspension of license is exclusively a civil proceeding, the petitioner could not contend that to require him to testify in order to rebut assumption that violation of law occurred would violate this section. Cesaroni v. O'Dowd, 94 R.I. 66 , 177 A.2d 777, 1962 R.I. LEXIS 29 (1962).

Where the defendant had to choose between silence at hearing on violation of deferred sentence for bank robbery indictment under § 12-19-19 and risk of self-incrimination apropos to upcoming trial for the crime, the court found no denial of due process or privilege cast upon defendant by his forced choice, nor by the sequence of proceedings. Flint v. Mullen, 499 F.2d 100, 1974 U.S. App. LEXIS 7952 (1st Cir.), cert. denied, 419 U.S. 1026, 95 S. Ct. 505, 42 L. Ed. 2d 301, 1974 U.S. LEXIS 3417 (1974).

The reporting provisions of § 31-26-3 , requiring certain information after an automobile accident were not incriminating and did not violate this section. State v. Smyth, 121 R.I. 188 , 397 A.2d 497, 1979 R.I. LEXIS 1759 (1979).

Possible commitment to a treatment facility after expiration of a term of confinement to a juvenile facility was not a threat of prosecution to which the self-incrimination privilege attached; therefore, a juvenile serial killer could not refuse to cooperate with a psychiatric treatment plan on grounds of self-incrimination, and the failure to cooperate was punishable by imprisonment for criminal contempt. State v. Price, 820 A.2d 956, 2003 R.I. LEXIS 99 (R.I. 2003).

— Government Records.

As the former chief executive of a governmental agency, the defendant could not resist responding to a subpoena on the grounds of self-incrimination, insofar as the subpoena demanded production of records of the governmental entity. Rhode Island Grand Jury v. Doe, 639 A.2d 986, 1994 R.I. LEXIS 107 (R.I. 1994).

Civil Actions.

The imposition of sanctions in a civil action upon one who refuses to answer questions relating to the subject matter in issue on the ground of self-incrimination is not a violation of any right guaranteed by the Fifth Amendment or this section. Pulawski v. Pulawski, 463 A.2d 151, 1983 R.I. LEXIS 1015 (R.I. 1983).

Although a default judgment should not be granted against a defendant purely by reason of his assertion of his privilege against self-incrimination, such refusal may be taken into account in the process of evaluating the evidence presented by a plaintiff or other moving party. Pulawski v. Pulawski, 463 A.2d 151, 1983 R.I. LEXIS 1015 (R.I. 1983).

Comments of Counsel or Court.

The test whether comment before the jury about silence of the accused was error — as violative of the Fifth Amendment — was that such comment must appear to be manifestly intended or be such as the jury might construe to the prejudice of the accused. State v. Fontaine, 113 R.I. 557 , 323 A.2d 571, 1974 R.I. LEXIS 1211 (1974).

Remarks by a prosecutor which might have been construed as a reference to defendant’s failure to testify do not necessarily call for reversal. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

Assessment of the propriety of prosecutorial argument to a jury requires review of the questioned statement in context and in light of attendant circumstances, rather than in isolation, and ascertainment of its meaning not in how it is read from the printed page, but in how a jury composed of ordinarily intelligent lay persons would understand it as they listened to the prosecutor’s closing argument. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

Although the prosecutor might have chosen his language more circumspectly in stating “[t]hose [the defendant and the victim] are the only two people who can say beyond a shadow of a doubt,” that language did not run afoul of the prohibition against commenting on a defendant’s failure to testify and is constitutionally permissible. State v. Andrews, 120 R.I. 771 , 390 A.2d 926, 1978 R.I. LEXIS 723 (1978).

A prosecutor may not comment on a defendant’s failure to call witnesses. State v. Taylor, 425 A.2d 1231, 1981 R.I. LEXIS 1043 (R.I. 1981).

Cautionary instructions must (1) identify the prosecutor’s conduct as improper, (2) unequivocally indicate that the jury must disregard it, and (3) unequivocally indicate that since the defendant has no duty to present witnesses or any other evidence, his failure to do so cannot be construed as an admission that the evidence, if produced, would have been adverse. State v. Taylor, 425 A.2d 1231, 1981 R.I. LEXIS 1043 (R.I. 1981).

Evidence.

Statements made by defendant, though voluntary, to disguised undercover agent placed in his cell in order to obtain further information, after defendant had already indicated that he wished to consult with an attorney and that he did not wish to say anything before seeing an attorney, were inadmissible in evidence. State v. Travis, 116 R.I. 678 , 360 A.2d 548, 1976 R.I. LEXIS 1324 (1976).

In determining whether to admit inculpatory statements allegedly obtained in violation of constitutional guarantees, the trial justice must first conduct a preliminary hearing out of the jury’s presence in which the state must show by clear and convincing evidence that the statements were obtained in a constitutional manner; and if the trial justice admits the evidence, he must specifically instruct the jury that before it may consider the evidence, it must first determine beyond any reasonable doubt that the inculpatory statements were not obtained in violation of the defendant’s constitutional guarantees. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

Compelled production of handwriting exemplars by an accused does not violate the prohibition against self-incrimination contained in R.I. Const., art. 1, § 13 . State v. Bertram, 591 A.2d 14, 1991 R.I. LEXIS 79 (R.I. 1991).

Evidence, Silence of Defendant.

The doctrine that, after Miranda warnings have been given by a police officer, the state may not present evidence of a defendant’s silence is not applicable when a defendant’s silence is in response to questions from a person who is not a police officer or otherwise acting in an official law enforcement capacity. State v. Martinez, 651 A.2d 1189, 1994 R.I. LEXIS 294 (R.I. 1994).

After a police officer made an unsolicited remark that defendant remained silent after he had been informed of his Miranda rights, the trial court did not err in refusing to declare a mistrial, as it immediately provided the jury with a thorough curative instruction that foreclosed any prejudice to defendant that may have arisen. State v. Enos, 21 A.3d 326, 2011 R.I. LEXIS 88 (R.I. 2011).

Invocation of Right.

Even if defendant had requested to speak with his aunt or mother prior to interrogation, such requests would not have served to invoke his right to remain silent or his right to counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

There is nothing inherent in a request for a probation officer that requires the finding that a juvenile’s request to see one necessarily constitutes an expression of the juvenile’s right to remain silent. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

— Waiver.

Whether a defendant waived his rights voluntarily, knowingly and intelligently is a question to be decided by the trial justice initially, and the burden is on the state to establish such waiver by clear and convincing evidence. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

The determination of whether statements made during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation in order to ascertain whether the accused in fact knowingly and voluntarily decided to waive his rights to remain silent and to have the assistance of counsel. State v. Benton, 413 A.2d 104, 1980 R.I. LEXIS 1517 (R.I. 1980).

When an accused voluntarily chooses to testify in his own behalf, the prosecution has the right to cross-examine him in respect to such testimony with the same latitude as would be exercised in the case of an ordinary witness regarding the circumstances connecting him with the alleged crime. State v. Wallace, 428 A.2d 1070, 1981 R.I. LEXIS 1106 (R.I. 1981).

Where prosecution’s cross-examination of the defendant had ceased, but the trial court allowed a reopening of such cross-examination to allow the prosecution to impeach the defendant with prior convictions, this was not tantamount to calling defendant as the state’s witness nor was it an abuse of the trial court’s discretion. State v. Wallace, 428 A.2d 1070, 1981 R.I. LEXIS 1106 (R.I. 1981).

Admissions made pursuant to a good-faith contingent plea agreement are voluntary when the defendant is fully informed of his rights prior to his testifying, when there exists no evidence that the state falsely induced the statements, and when the defendant makes a free and rational choice to speak. State v. Malone, 568 A.2d 1378, 1990 R.I. LEXIS 2 (R.I. 1990).

As defendant was orally apprised of his Miranda rights and initialed a form to acknowledge his understanding of those rights, the surreptitious recording of his statement after he said he preferred that it not be recorded did not render his waiver of his rights unknowing and unintelligent. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

Noncustodial Questioning.

General inquiry in hospital waiting-room was noncustodial questioning and did not require Miranda rule rights. State v. Ryan, 113 R.I. 343 , 321 A.2d 92, 1974 R.I. LEXIS 1185 (1974).

Preservation for Review.

When defendant claimed it was error to deny defendant’s motion to suppress defendant’s confession since the confession was the fruit of an illegal arrest, whether defendant’s arrest was based on probable cause, under U.S. Const. amend. IV and R.I. Const. art. I, § 6 was not preserved because defendant said the confession was obtained contrary to R.I. Const. art. I, §§ 10 and 13 and U.S. Const. amends. V and VI. State v. Chum, 54 A.3d 455, 2012 R.I. LEXIS 131 (R.I. 2012).

Voluntariness of Confession.

Both the Rhode Island and the federal Constitutions bar the use in a criminal trial of a defendant’s involuntary statements. The determination of voluntariness must be made on the basis of all facts and circumstances, including the behavior of the defendant and the behavior of the interrogators; the ultimate test is whether the defendant’s statements were the product of free and rational choice or a result of coercion that had overcome the defendant’s will at the time he confessed. State v. Griffith, 612 A.2d 21, 1992 R.I. LEXIS 158 (R.I. 1992).

A confession obtained by direct or implied promises resulting from improper influence is involuntary, and the state bears the burden of proving by clear and convincing evidence that the confession was voluntary. However, the statements made by the investigating officers to the defendant did not amount to constitutionally impermissible police tactics even though the officers told the defendant that they did not want to hear any more denials from him and that the crime he committed “could happen to anybody.” State v. Griffith, 612 A.2d 21, 1992 R.I. LEXIS 158 (R.I. 1992).

Trial court erred in suppressing defendants’ alleged confessions on grounds that the transcripts of their tape-recorded statement were of doubtful authenticity, as the issue at the suppression hearing was not whether the confessions were admissible under the rules of evidence, but whether they were voluntary, and the State proved that they were. State v. Forbes, 900 A.2d 1114, 2006 R.I. LEXIS 113 (R.I. 2006).

Trial court erred in suppressing defendants’ confessions, as testimony that an officer was alone with them during the interviews, that he was unarmed, that he made neither promises nor threats, and that they signed forms acknowledging their understanding of the officer’s Miranda warnings, proved by clear and convincing evidence that they gave their statements voluntarily. State v. Forbes, 900 A.2d 1114, 2006 R.I. LEXIS 113 (R.I. 2006).

Defendant’s confession was properly not suppressed as a hearing justice did not credit defendant’s testimony that the Rhode Island Department of Children, Youth and Families threatened to take defendant’s children if defendant did not give a police statement; defendant voluntarily waived defendant’s right against self-incrimination under the Fifth Amendment, U.S. Const. amend. V, and R.I. Const. art. I, § 13 when defendant made incriminating statements to the detectives at the police station. State v. Gonzalez, 986 A.2d 235, 2010 R.I. LEXIS 8 (R.I. 2010).

Trial court properly denied defendant’s motion to suppress his confession because it found that any delay in presentment under R.I. Super. Ct. R. Crim. P. 5 (a) did not affect the voluntariness of his confession to the police. State v. Musterd, 56 A.3d 931, 2012 R.I. LEXIS 133 (R.I. 2012).

Miranda violations do not taint the admissibility of physical evidence that is the product of an unwarned and inadmissible statement, so long as that statement is voluntary. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

Law enforcement’s failure to comply with Miranda did not taint the admissibility of evidence that was the product of an unwarned and inadmissible statement because the statement was not coerced, in violation of R.I. Const. art. I, § 13 , but was voluntarily made after defendant initiated a third interview with detectives by summoning an officer to her cell and requesting to talk to the detectives. State v. Beauregard, 198 A.3d 1, 2018 R.I. LEXIS 130 (R.I. 2018).

Collateral References.

Applicability of Fifth Amendment to Pretrial Proceedings. 25 A.L.R. Fed. 3d Art. 3 (2017).

Assertion and Violation of Privilege Against Self-Incrimination During Sex Offender Treatment. 27 A.L.R.7th Art. 8 (2018).

Construction and application of constitutional rule of Miranda — Supreme Court cases. 17 A.L.R. Fed. 2d 465.

Construction and Application of “Foregone Conclusion” Exception to Fifth Amendment Privilege against Self-Incrimination. 25 A.L.R. Fed. 3d Art. 10 (2017).

Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968, as amended ( 18 U.S.C. § 3501(c)), that defendant’s confession shall not be inadmissible in evidence in federal criminal prosecution solely because of delay in presentment before magistrate. 124 A.L.R. Fed. 263.

Construction and Application of Required Records Doctrine. 21 A.L.R.7th Art. 2 (2017).

Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused’s statement — modern cases. 132 A.L.R. Fed. 415.

Propriety of Using Otherwise Inadmissible Statement, Taken in Violation of Miranda Rule, to Impeach Criminal Defendant’s Credibility — State Cases. 42 A.L.R.6th 237.

Sufficiency of corroboration of confession for purpose of establishing corpus delicti as question of law or fact. 33 A.L.R.5th 571.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs — Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 A.L.R.5th 523.

Use of Fifth Amendment Privilege Against Self-Incrimination in Bankruptcy Proceedings. 46 A.L.R. Fed. 3d Art. 5 (2019).

Voluntary nature of confession as affected by appeal to religious beliefs. 20 A.L.R.6th 479.

What constitutes “custodial interrogation” at hospital by police officer within rule of Miranda v. Arizona requiring that suspect be informed of his or her federal constitutional rights before custodial interrogation — Suspect injured or taken ill. 25 A.L.R.6th 379.

What Constitutes “Custodial Interrogation” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation — Suspect Hospital Visitor, Not Patient. 31 A.L.R.6th 465.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant Outside, but in Immediate Vicinity. 34 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation — At Police Vehicle, Where Defendant in Moving Vehicle, or Where Unspecified as to Whether Vehicle Moving or Stationary. 35 A.L.R.6th 127.

What Constitutes “Custodial Interrogation” by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — Upon Hotel Property. 45 A.L.R.6th 337.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff’s Office, Where Defendant Is Escorted or Accompanied by Law Enforcement Personnel, or Is Otherwise at Station or Office Involuntarily. 32 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” of Adult by Police Officer Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — At Police Station or Sheriff’s Office, Where Defendant Voluntarily Appears or Appears at Request of Law Enforcement Personnel, or Where Unspecified as to Circumstances Upon Which Defendant is Present. 29 A.L.R.6th 1.

What Constitutes “Custodial Interrogation” Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of Federal Constitutional Rights Before Custodial Interrogation — In Jail or Prison. 38 A.L.R.6th 97.

§ 14. Presumption of innocence — Securing accused persons.

Every person being presumed innocent, until pronounced guilty by the law, no act of severity which is not necessary to secure an accused person shall be permitted.

NOTES TO DECISIONS

Act of Severity.

The amendment to G.L. 1938, ch. 625, § 68 by P.L. 1941, ch. 982 [former § 12-7-13 ], under which a defendant could be detained twenty-four hours before arraignment, did not permit an “act of severity” within the meaning of this section, and a defendant could not object to a denial by the state police of a special arraignment so that he would not have to remain in jail overnight. State v. Wax, 83 R.I. 319 , 116 A.2d 468, 1955 R.I. LEXIS 68 (1955).

There is no merit in defendant’s contention that detention of defendant from 9:15 p. m. until 10:00 a. m. the next morning was cruel and unusual punishment and a violation of his constitutional rights. State v. Kilday, 90 R.I. 91 , 155 A.2d 336, 1959 R.I. LEXIS 123 (1959).

Presumption of Innocence.

Charge by trial court that the act of defendant in fleeing from the state after alleged offense “makes a prima facie case which indicates guilt on his part” violated this section, since the charge deprived the accused of the common law principle that every person is presumed innocent until proven guilty. State v. Papa, 32 R.I. 453 , 80 A. 12, 1911 R.I. LEXIS 63 (1911).

Since inquiry before liquor control administration for suspension of license is exclusively a civil proceeding, the petitioner could not contend that there was an assumption of a violation of law contrary to this section and court could not disturb decision of administrator if there was some legal evidence upon which it could be based. Cesaroni v. O'Dowd, 94 R.I. 66 , 177 A.2d 777, 1962 R.I. LEXIS 29 (1962).

Former § 12-13-23 , which stated “If, after hearing, the party who has posted or is about to post bail or has furnished a fee, money or other consideration to another person who has posted or is about to post bail cannot establish to the satisfaction of the court by clear and convincing evidence that the source of money is from a legal enterprise the court need not accept the bail,” was unconstitutional, in that it shifted the burden of proof in a criminal proceeding from the state to the defendant, in violation of the Rhode Island Constitution, Article 1, Section 14. State v. Zorillo, 565 A.2d 1259, 1989 R.I. LEXIS 154 (R.I. 1989).

— Definition of Offense.

A statute which provides that one who sells milk not meeting a specified standard as to contents sells adulterated milk is not unconstitutional on the ground that the statute established certain evidence as conclusive of guilt, since the act merely defines the offense and leaves the defendant to produce evidence in his own behalf to rebut the charge of intent to sell or exchange adulterated milk. State v. Smyth, 14 R.I. 100 , 1883 R.I. LEXIS 12 (1883).

— Prima Facie Evidence.

Constitutionality of provisions of statute specifying that character of premises and people who frequented premises was prima facie evidence that premises were a nuisance would not be considered by the court upon a motion in arrest of judgment where the proof upon which the defendant was convicted did not appear. State v. Paul, 5 R.I. 185 , 1858 R.I. LEXIS 12 (1858).

P.L. 1880, ch. 797, § 4, which provided that in a prosecution for the sale of intoxicating liquors it was not necessary to prove an actual sale but that certain circumstances would be prima facie evidence that liquors were kept for sale, was unconstitutional since it violated the common law principle that every man is presumed innocent. State v. Beswick, 13 R.I. 211 , 1881 R.I. LEXIS 11 (1881).

If defendant charged with possession of policy slips for use in a lottery admits that he knew the slips were policy slips, the guilt of the defendant does not depend upon a presumption but upon positive testimony. State v. Gaines, 32 R.I. 462 , 79 A. 1107, 1911 R.I. LEXIS 55 (1911).

Right to Bail.

Where the right to bail is sought after a party has been indicted for murder, and the state opposes bail, it must carry the burden of proving that guilt is evident or presumption great, since a person is innocent until proven guilty. Taglianetti v. Fontaine, 105 R.I. 596 , 253 A.2d 609, 1969 R.I. LEXIS 793 (1969).

Collateral References.

Constitutional claims of persons placed on federal governments no-fly list or other terrorist watch lists. 5 A.L.R. Fed. 3d Art. 5 (2015).

§ 15. Trial by jury.

The right of trial by jury shall remain inviolate. In civil cases the general assembly may fix the size of the petit jury at less than twelve but not less than six.

Cross References.

Federal guaranty of trial by jury. U.S. Const., Amend. VII.

Six-person juries in civil cases, § 9-10-11.1 .

Waiver of jury trial, § 12-17-3 .

Law Reviews.

Caselaw Survey Section: Constitutional Law, see 5 R.W.U.L. Rev. 646 (2000).

Comparative Provisions.

Trial by jury:

Conn. 1965 Const., art. First, § 19.

Mass. Const. Pt. 1, Art. 15.

NOTES TO DECISIONS

In General.

The right of trial by jury, secured by the Constitution, is simply the right to that kind of trial in all such cases as were triable by jury at the time of the adoption of the Constitution, without any restrictions or conditions which materially hamper or burden the right. Mathewson v. Ham, 21 R.I. 311 , 43 A. 848, 1899 R.I. LEXIS 77 (1899), overruled, State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

Sections 7, 10, and 15 of this article should be read together to determine the constitutional guarantees of one accused of a capital or infamous crime. In re Opinion to Governor, 62 R.I. 200 , 4 A.2d 487, 1939 R.I. LEXIS 17 (1939).

In this state trial by jury is inviolate. The right is placed absolutely beyond the power of the legislature to alter or abolish it. Dyer v. Keefe, 97 R.I. 418 , 198 A.2d 159, 1964 R.I. LEXIS 102 (1964) (decided prior to adoption of second sentence).

This section preserves the right to a jury trial in proceedings which were triable by jury at the time of the adoption of the constitution, but does not create rights where none preexisted. Briggs Drive, Inc. v. Moorehead, 103 R.I. 555 , 239 A.2d 186, 1968 R.I. LEXIS 829 (1968).

Pending legislation to reduce petit jury from 12 members to 6 was repugnant to provisions of the constitution which were adopted when the term “jury” contemplated 12 members. Advisory Opinion to Senate, 108 R.I. 628 , 278 A.2d 852, 1971 R.I. LEXIS 1319 (1971).

This provision conserves the right of trial by jury as it existed at the time the state constitution was adopted. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

The inviolability provision of this section prior to the adoption of the second sentence, guaranteed that justiciable controversies which were triable by a petit jury when the Rhode Island Constitution was adopted in 1842, continued to be so triable without any restrictions or conditions that could materially hamper or burden the right. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

In 1842 and prior thereto “any person” who was aggrieved at “any sentence” pronounced against him by a magistrate was entitled to a de novo appeal with a right to trial by jury to the next highest court, the Court of Common Pleas. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

Under the Rhode Island Constitution, an accused is entitled to such jury-trial right as was enjoyed at the time of the adoption of the Rhode Island Constitution. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Incidents of the jury-trial right embodied in the Rhode Island Constitution cannot be abridged even though they may not be embodied in the federal constitution. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

The constitutional command requires only that the right to a trial by jury be preserved, not extended. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

The right to trial by jury is not only immune to any legislative attempt at abolishment or alteration, but must remain available to litigants in any type of legal action which was triable before a jury in 1843, the year when the state’s first constitution became effective. FUD's, Inc. v. State, 727 A.2d 692, 1999 R.I. LEXIS 79 (R.I. 1999).

Since an important and potentially substantial component of the statutory relief available under the Fair Employment Practices Act, namely compensatory and punitive damages, is legal in nature, and since the cause of action itself is more analogous to an action triable before a jury in an 1843 court of law than to any equitable cause of action, the statute triggers employers’ rights to a jury trial. FUD's, Inc. v. State, 727 A.2d 692, 1999 R.I. LEXIS 79 (R.I. 1999).

A claim under the Fair Employment Practices Act, involving not only the adjudication of public rights, but also of a private party’s right to obtain compensatory and/or punitive damages from another private party for a statutory violation, was held to be a hybrid claim outside the public-rights doctrine, but within a litigant’s inviolable constitutional right to a jury trial. FUD's, Inc. v. State, 727 A.2d 692, 1999 R.I. LEXIS 79 (R.I. 1999).

Affidavit of Arrest.

The provision that right of trial by jury shall remain inviolate did not entitle defendant to jury trial on allegations of affidavit of arrest provided by G.L. 1896, ch. 252, § 11, cl. 3, as amended by P.L. 1896, ch. 299 [§ 10-10-1 , paragraph Second], as provision for affidavit of arrest did not exist when the Constitution was adopted. Shaw v. Silverstein, 21 R.I. 500 , 44 A. 931, 1899 R.I. LEXIS 116 (1899).

Agreement of Parties.

Although a jury trial was demanded by plaintiffs in their complaint and by defendants in their answer, and upon plaintiffs’ motion for separate trials, since the trial court issued an order stating that “pursuant to Rule 42(b) of the Superior Court Rules of Civil Procedure, and by agreement of the parties,” separate trials would be held “regarding the issues of liability and damages,” the language of the order indicated that both parties had agreed to try the issues of liability and specific performance without a jury; defendants were not denied their constitutional right to a jury trial. Jolicoeur Furniture Co. v. Baldelli, 653 A.2d 740, 1995 R.I. LEXIS 27 (R.I.), cert. denied, 516 U.S. 964, 116 S. Ct. 417, 133 L. Ed. 2d 335, 1995 U.S. LEXIS 7433 (1995).

Change of Venue.

The right to trial in the vicinage, especially in a transitory action, is not an essential incident to the right of trial by jury, so that this section is not violated by P.L. 1873, ch. 292, § 1 [§ 8-2-29 ], which provides for a change of venue in order to secure an impartial trial and to avoid local prejudice. Taylor v. Gardiner, 11 R.I. 182 , 1875 R.I. LEXIS 22 (1875).

Civil Cases.

A jury trial is not required by the law of the land in all civil cases. State Bd. of Health v. Roy, 22 R.I. 538 , 48 A. 802, 1901 R.I. LEXIS 50 (1901).

A jury trial is not a matter of right in an equity proceeding. Bellini v. Neas, 50 R.I. 283 , 146 A. 634, 1929 R.I. LEXIS 63 (1929).

In a property owners’ suit to enjoin the city’s abandonment of streets and alleys, an order denying defendants’ motion to strike plaintiffs’ motion for a jury trial and assigning the case to determine whether the issues to be framed by plaintiffs were appropriate for jury trial was not a final judgment appealable under § 9-24-1 nor an interlocutory order or decree appealable under § 9-24-7 and it did not deny plantiffs their constitutional right to a jury trial. Corrado v. City of Providence, 114 R.I. 691 , 337 A.2d 811, 1975 R.I. LEXIS 1472 (1975).

— Account.

The provisions of G.S. 1872, ch. 204, § 10 et seq. [former § 9-15-9 et seq.] were void as in violation of this section insofar as the auditor’s report authorized under that statute was made prima facie evidence for the jury, since in such cases the action would go to the jury prejudged in favor of the party for whom the report was rendered, the jury being bound by such report in the absence of testimony to the contrary. Francis v. Baker, 11 R.I. 103 , 1875 R.I. LEXIS 2 (1875).

— Contracts.

Legal counterclaim raised by respondents does not recharacterize a mechanic’s lien proceeding from an equitable proceeding to an action at law demanding a right to a jury trial. Tilcon Gammino v. Commercial Assoc., 570 A.2d 1102, 1990 R.I. LEXIS 40 (R.I. 1990).

— Dower.

The grant of jurisdiction to the probate courts to set off dower to the widow, under G.S. 1872, ch. 218, § 17 [former § 33-4-22], does not violate this section although the right to trial by jury was an incident to an action of dower in the common law courts, since a person who desires a jury trial may secure it by appeal. Weaver v. Sturtevant, 12 R.I. 537 , 1880 R.I. LEXIS 19 (1880).

— Eminent Domain.

The state does not have a constitutional right to jury trial on valuation in condemnation proceeding. In re Condemnation of Certain Land, 19 R.I. 326 , 33 A. 448, 1895 R.I. LEXIS 82 (1895).

— Environmental Damages.

Department of environmental management’s action seeking civil penalties for violation of the Water Pollution Act is an open-ended claim for a significant sum pursuant to penal statutes and is therefore triable to a jury. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

Department of environmental management’s action to enforce a penalty pursuant to a consent agreement is analogous to a motion to adjudge a litigant in civil contempt for violation of an order having the force of law, and does not give rise to a right to trial by jury, where the only question is whether the consent order has been violated. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

Where it was incontrovertible that the environmental action brought by Department of Environmental Management against private corporation was a public right, no jury-trial adhered under this section. National Velour Corp. v. Durfee, 637 A.2d 375, 1994 R.I. LEXIS 52 (R.I. 1994).

— Equity Cases.

Trial justice’s decision to rule on an undue influence claim in equity and disregard the jury’s verdict in favor of plaintiffs did not deprive them of their constitutional right to a trial by jury, because the revocable inter vivos trust at issue had to receive the same treatment in equity as a trust, and there was no state constitutional right to a jury trial in an equitable matter. Filippi v. Filippi, 818 A.2d 608, 2003 R.I. LEXIS 40 (R.I. 2003).

— Injunctive Relief.

The mere fact that legal claims are combined with claims for injunctive relief does not preclude determination by a jury of the legal issues set forth. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

The determination of whether to issue injunctive relief and enforce the same by a contempt order is one that is traditionally made by a justice in furtherance of equitable power without the intervention of a jury. On this aspect of a case no jury trial is appropriate or permissible. Bendick v. Cambio, 558 A.2d 941, 1989 R.I. LEXIS 82 (R.I. 1989).

— Insolvency.

Insolvency statute is not unconstitutional on the ground that the assignee of the debtor is not given a jury trial on the validity of any claim, since there was no such right of jury trial in insolvency proceedings at the time the Constitution was adopted. Merrill v. Bowler, 20 R.I. 226 , 38 A. 114, 1897 R.I. LEXIS 91 (1897).

— Insurance.

Statute prescribing form of standard insurance policy did not abridge the right to trial by jury, since only the form was prescribed and the parties were left free to make their own contract. Stephens v. Springfield Fire & Marine Ins. Co., 27 R.I. 595 , 65 A. 300, 1906 R.I. LEXIS 55 (1906).

P.L. 1912, ch. 831, art. 5, § 9, as enacted by P.L. 1915, ch. 1268 [§ 28-36-11 ], which provides that an insurance company may be joined as a defendant together with the insured, and that plaintiff may recover against either or both of defendants, but in the case of the insurance company only up to the amount of the coverage, does not violate the right of trial by jury. Morrell v. Lalonde, 44 R.I. 20 , 114 A. 178, 1921 R.I. LEXIS 40 (1921).

— Interference With Contract.

Plaintiffs’ claims for tortious interference with contracts should have been decided by a jury, rather than by the court alone, and it was an abuse of discretion for the court to refuse to employ a jury upon defendant’s timely request for a jury trial. Egidio DiPardo & Sons v. Lauzon, 708 A.2d 165, 1998 R.I. LEXIS 52 (R.I. 1998).

— Landlord and Tenant.

Provision in G.L. 1896, ch. 237, § 9 [former § 9-12-12 ] requiring a tenant who claims a jury trial in action for possession by landlord to give bond for rent, damages, and costs, was not an unreasonable restriction upon right of jury trial in violation of this section, since at the time the Constitution was adopted the statute of George II requiring a tenant holding over after notice to quit to pay double rent was part of the common law of Rhode Island. Mathewson v. Ham, 21 R.I. 311 , 43 A. 848, 1899 R.I. LEXIS 77 (1899), overruled, State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

When a tenant who filed a constructive trust action against his landlord and did not demand a jury trial in that action but did demand a jury in the landlords’ action against him for trespass and ejectment, the tenant’s right to a jury trial was not violated because tenant did not show the two actions were consolidated, and did not prove the existence of a constructive trust, there were no disputed fact issues for a jury to determine, so none was required. Connor v. Sullivan, 826 A.2d 953, 2003 R.I. LEXIS 169 (R.I. 2003).

— Licenses.

This section does not reserve right to jury trial in a proceeding to revoke a certificate to practice medicine under G.L. 1896, ch. 165, § 5 [§ 5-37-4 ], since this type of case arose after the Constitution. State Bd. of Health v. Roy, 22 R.I. 538 , 48 A. 802, 1901 R.I. LEXIS 50 (1901).

P.L. 1903, ch. 1100, § 13 [former §§ 5-27-28 to 5-27-30], providing that any person aggrieved by decision of board revoking license of a barber could appeal to the supreme court, did not violate this section, since a judicial trial is secured to the defendant. State v. Armeno, 29 R.I. 431 , 72 A. 216, 1909 R.I. LEXIS 33 (1909).

— Municipal Corporations.

Provision of P.L. 1910, ch. 542, § 3 [§ 5-18-3 ], authorizing city or town to require approval of billboard advertising by city and town officials did not violate constitutional provision guaranteeing jury trial, since the guaranty of jury trial only applies to those proceedings in which there was a right of jury trial at the time of the adoption of the Constitution. Horton v. Old Colony Bill Posting Co., 36 R.I. 507 , 90 A. 822, 1914 R.I. LEXIS 44 (1914).

G.L. 1923, ch. 125 [§ 46-12-1 et seq.] did not violate this section on the ground that town was deprived of trial by jury, since a town has no constitutional right to trial by jury. Board of Purification of Waters v. East Providence, 47 R.I. 431 , 133 A. 812, 1926 R.I. LEXIS 78 (1926).

No right to a jury trial attaches in the case of enforcement proceedings instituted by the Narragansett Bay Water quality management district commission when an alleged violator refuses to abide by the commission’s compliance order. F. Ronci Co. v. Narragansett Bay Water Quality Management Dist. Comm'n, 561 A.2d 874, 1989 R.I. LEXIS 133 (R.I. 1989).

The right to a jury trial attaches to a proceeding wherein the Narragansett Bay Water quality management district commission seeks the imposition or enforcement of a civil penalty. F. Ronci Co. v. Narragansett Bay Water Quality Management Dist. Comm'n, 561 A.2d 874, 1989 R.I. LEXIS 133 (R.I. 1989).

— Taxation.

This section was not violated by R.S. 1857, ch. 68, § 1 [§ 16-39-2 ], which made final the decision of the school commissioner determining the legality of a school tax assessment, since summary jurisdiction to pass upon acts of officials engaged in the assessment and collection of taxes was recognized before and not changed by the Constitution. Crandall v. James, 6 R.I. 144 , 1859 R.I. LEXIS 22 (1859).

This section does not extend the right of jury trial and therefore a plaintiff could not object to statutes authorizing assessments for sewers which did not provide for a right of appeal with trial by jury, since such assessments are a type of taxation, and tax assessments are subject to revision by the court rather than by jury. Bishop v. Tripp, 15 R.I. 466 , 8 A. 692, 1887 R.I. LEXIS 16 (1887).

Collection of delinquent poll taxes by levy on the body and commitment to jail, as provided in G.L. 1896, ch. 47, § 6 [G.L. 1938, ch. 35, § 3], did not conflict with this section, as tax assessments have never been subject to revision by jury trial. In re Delinquent Poll Tax, 21 R.I. 582 , 44 A. 805, 1899 R.I. LEXIS 111 (1899).

G.L. 1909, ch. 238, §§ 7 and 8 [§§ 32-2-8 and 32-2-9 ], providing for assessment of amounts due from each city and town for payment of expense of public parks, does not violate right of jury trial, since assessment is a species of taxation and, though subject to revision by the court, is not subject to revision by a jury. In re Opinion of Justices, 34 R.I. 191 , 83 A. 3, 1912 R.I. LEXIS 41 (1912).

When the constitution was adopted, suits for the revision of tax assessments, although cognizable in the courts of the state, were not triable by a jury and a taxing official, therefore, cannot claim such a right under the constitution. Briggs Drive, Inc. v. Moorehead, 103 R.I. 555 , 239 A.2d 186, 1968 R.I. LEXIS 829 (1968).

— Workers’ Compensation.

An employee who elects to take compensation under Workers’ Compensation Act and thereby waives his right to sue employer for damages at common law also waives his right to trial by jury. Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916).

— Zoning Violations.

A zoning-violation conviction is not the type of offense which was triable to a jury at the time of the adoption of the Rhode Island Constitution. Aptt v. Warwick Bldg. Dep't, 463 A.2d 1377, 1983 R.I. LEXIS 1044 (R.I. 1983).

Composition of Jury.

Both before and after Rhode Island Constitution was adopted, an accused had generally been tried before a jury composed of residents of the county wherein the crime was committed. But this practice has been predicated upon statutory rules of procedure, not a constitutionally guaranteed right of vicinage. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

At common law, juries were originally drawn from the vicinage of the crime. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

Costs.

A statute conditioning defendant’s right of appeal upon payment by him of court costs does not violate his right to trial by jury, since making reasonable provisions for costs has always been within power of legislature and such statutes were in effect before adoption of Constitution. Littlefield v. Peckham, 1 R.I. 500 , 1851 R.I. LEXIS 12 (1851).

Criminal Cases.

P.L. 1887, ch. 596, § 4, concerning forfeiture of liquors illegally kept, which provided that in order to appeal, bond should be given and that unless the appeal “be then taken” the court should order the liquors “forthwith” destroyed, did not violate this section, even though no time was given to perfect the recognizance. In re Liquors of McSoley, 15 R.I. 608 , 10 A. 659, 1887 R.I. LEXIS 63 (1887), overruled, State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

A condition in a recognizance for appeal from a judgment ordering liquors to be forfeited, which provided that the defendant would not violate any provisions of the act pending the appeal, was in violation of this section, but since the condition was separable from the remainder of the recognizance, it could be regarded as a mere nullity. In re Liquors of McSoley, 15 R.I. 608 , 10 A. 659, 1887 R.I. LEXIS 63 (1887), overruled, State v. Holliday, 109 R.I. 93 , 280 A.2d 333, 1971 R.I. LEXIS 1029 (1971).

P.S. 1882, ch. 244, § 24 [former § 11-45-11], under which a person convicted of indecent intoxication three times within six months, or who was indecently intoxicated three times within six weeks, was deemed a common drunkard, did not violate the constitutional right to trial by jury. State v. Flynn, 16 R.I. 10 , 11 A. 170, 1887 R.I. LEXIS 68 (1887).

It was within the authority of the legislature under the police power to fix a standard of care. A prima facie speed limit may be taken into account by the jury as evidence of excessive speed over and above the reasonable and prudent speed. The motor vehicle act is not unconstitutional for the reason that it was an attempt by the legislature to exercise judicial power and deprive the defendant of his property without due process of law. State v. Costakos, 92 R.I. 415 , 169 A.2d 383, 1961 R.I. LEXIS 50 (1961).

— Violations.

The General Assembly acted unconstitutionally when in 1976 it established the classification “violation” and failed to provide a de novo appeal to the Superior Court as it did for those individuals who were charged with committing misdemeanors or petty misdemeanors. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

Portions of § 12-22-1.1 which authorized a direct review of district court’s action in finding defendant guilty of a violation of § 4-1-10 by way of certiorari violated defendant’s right under the Rhode Island Constitution to a jury trial. State v. Vinagro, 433 A.2d 945, 1981 R.I. LEXIS 1247 (R.I. 1981).

Damages.

There was no statutory right to have damages in defaulted cases assessed by a jury at the time Constitution was adopted. Dyson v. Rhode Island Co., 25 R.I. 600 , 57 A. 771, 1904 R.I. LEXIS 146 (1904).

Provision of former § 9-23-1 conferring upon the court the authority to grant additurs did not violate this section since if the defendant did not agree to an increase, his right to a new trial remained unimpaired. O'Brien v. Waterman, 91 R.I. 374 , 163 A.2d 31, 1960 R.I. LEXIS 98 (1960).

Juvenile Cases.

Juvenile presented to family court as an alleged delinquent is not constitutionally entitled to a trial by jury. In re McCloud, 110 R.I. 431 , 293 A.2d 512, 1972 R.I. LEXIS 933 (1972).

Waiver.

P.L. 1929, ch. 1327 [§ 9-11-7 ], which provides that jury trial is waived unless the parties in writing request a jury trial by assignment date, did not violate this section on the ground that the issues might not be made up by assignment date. Mandeville, Brooks & Chaffee v. Fritz, 50 R.I. 513 , 149 A. 859, 1930 R.I. LEXIS 30 (1930).

Once the parties waive a jury trial by failing to indicate in writing to the court by assignment date that a jury trial is desired, they cannot thereafter by agreement secure a jury trial. Orr v. Superior Court, 52 R.I. 335 , 161 A. 139, 1932 R.I. LEXIS 79 (1932).

A property owner whose property is taken for public use has a right to waive a trial by jury just as this right is available in every action at law originally brought in the superior court. Atlantic Ref. Co. v. Director of Pub. Works, 98 R.I. 167 , 200 A.2d 580, 1964 R.I. LEXIS 146 (1964).

— Civil Cases.

Trial justice did not commit an abuse of discretion in holding that a personal injury plaintiff and premises owners had waived their right to a jury trial when they had not timely filed their jury trial demand and, moreover, had explicitly requested their equitable claims in the owners’ declaratory judgment dispute with their insurer be consolidated for trial with the simple premises liability claims. Imperial Cas. & Indem. Co. v. Bellini, 888 A.2d 957, 2005 R.I. LEXIS 211 (R.I. 2005).

— Criminal Cases.

Defendant was not under the influence such that his ability to think clearly about his decision to waive his right to a jury trial was affected, and defendant understood the right was guaranteed to him by the Constitution because defendant and counsel reviewed and signed the written jury-waiver form, and defendant discussed the contents of the form with counsel; the extensive colloquy established that defendant understood that it was his decision and not counsel’s decision. State v. Parrillo, 228 A.3d 613, 2020 R.I. LEXIS 39 (R.I. 2020).

Collateral References.

Construction and application of re-examination clause of Seventh Amendment. 10 A.L.R.7th Art. 1 (2016).

Right to jury trial in child neglect, child abuse, or termination of parental rights proceedings. 102 A.L.R.5th 227.

Right to jury trial on issue of damages in copyright infringement actions under 17 U.S.C. § 504. 163 A.L.R. Fed. 467.

§ 16. Compensation for taking of private property for public use — Regulation of fishery rights and shore privileges not public taking.

Private property shall not be taken for public uses, without just compensation. The powers of the state and of its municipalities to regulate and control the use of land and waters in the furtherance of the preservation, regeneration, and restoration of the natural environment, and in furtherance of the protection of the rights of the people to enjoy and freely exercise the rights of fishery and the privileges of the shore, as those rights and duties are set forth in Section 17, shall be an exercise of the police powers of the state, shall be liberally construed, and shall not be deemed to be a public use of private property.

Compiler’s Notes.

The second sentence of this section was new in the 1986 Constitution.

Cross References.

Federal guaranty as to private property for public use, U.S. Const., Amend. 5.

Taking of private property under emergency conditions, § 30-15-11 .

Law Reviews.

Tyler Martin, 2019 Survey: Cranston Police Retirees Action Comm. v. City of Cranston, 25 Roger Williams U. L. Rev. 564 (2020).

Comparative Provisions.

Taking private property:

Conn. 1965 Const., art. First, § 11.

Mass. Const. Pt. 1, Art. 10.

NOTES TO DECISIONS

Just Compensation.

Property may not be taken without the payment of or securing the payment of just compensation, and what is just compensation is a judicial question exclusively. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Where condemnation is by or for benefit of state or municipality, it is not essential that payment be made before taking if an adequate and certain remedy for payment is provided. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937); O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

The owner of property taken cannot be compelled to receive his compensation in any other form than money. Reynolds v. State Bd. of Pub. Rds., 59 R.I. 120 , 194 A. 535, 1937 R.I. LEXIS 135 (1937).

While a particular statutory formula for guaranteeing the payment of compensation is not required, however it is equally true that the legislature must in some manner make such payment certain and definite and unequivocably provide a remedy for enforcement. It must also appear from the statute that funds are set aside, that payment therefrom is obligatory, and that a procedure is available to the property owners for obtaining such payment. Remington Realty Co. v. City of Providence, 89 R.I. 102 , 151 A.2d 376, 1959 R.I. LEXIS 54 (1959).

The taking of property for public use by a state or one of its municipalities need not be accompanied or preceded by payment, but the requirement of just compensation is satisfied when the public faith and credit are pledged to a reasonably prompt ascertainment and payment, and there is adequate provision for enforcing the pledge. Remington Realty Co. v. City of Providence, 89 R.I. 102 , 151 A.2d 376, 1959 R.I. LEXIS 54 (1959).

An act authorizing the exercise of the power of eminent domain does not violate this section when it is accompanied by an act providing funds for the payment of the value of property taken and by legislation providing procedure to enforce payment. Chartier Real Estate Co. v. Chafee, 101 R.I. 544 , 225 A.2d 766, 1967 R.I. LEXIS 799 (1967).

A city or town council that purports to exercise its power of eminent domain by requiring an unwilling owner to give up his property in exchange for other property fails to meet the constitutional requirement of just compensation. O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

— Assessment of Damages.

The general rule is that the measure of damages to be awarded as compensation for property taken in eminent domain proceedings is the market value of the property. Assembly of God Church v. Vallone, 89 R.I. 1 , 150 A.2d 11, 1959 R.I. LEXIS 37 (1959).

Where there are buildings on the land taken, market value is the value of the land and buildings as a unit in eminent domain proceedings. Assembly of God Church v. Vallone, 89 R.I. 1 , 150 A.2d 11, 1959 R.I. LEXIS 37 (1959).

The trial court did not err in finding the property was properly valued based on its continued legal use. Serzen v. Director of the Dep't of Envtl. Mgmt., 692 A.2d 671, 1997 R.I. LEXIS 104 (R.I. 1997).

The loss of landowners’ rights in trees located within the area of a permanent easement should have been considered in valuing the damages resulting from a town’s condemnation action. Hickey v. Town of Burrillville, 713 A.2d 781, 1998 R.I. LEXIS 212 (R.I. 1998).

Landowners were entitled to compensation for both a permanent easement and the denial of access to their property beyond the permanent easement in the light of the most injurious use that the town might make of its easement rights. Hickey v. Town of Burrillville, 713 A.2d 781, 1998 R.I. LEXIS 212 (R.I. 1998).

There was no error in assessing damages from a property taking where the court considered expert witness testimony, credibility, reviewed comparable sales properties, and articulated findings about probative values. Sun-Lite P'ship v. Town of W. Warwick, 838 A.2d 45, 2003 R.I. LEXIS 236 (R.I. 2003).

In valuing the owner’s property pursuant to a taking in accordance with R.I. Const. art. I, § 16 , the trial court did not err in rejecting the experts’ evidence on the comparable sales approach and valuing the properties under the income approach, as the evidence on comparable sales was unreliable, and the town did not object to the income formula evidence. Sweet v. Town of W. Warwick, 844 A.2d 94, 2004 R.I. LEXIS 37 (R.I. 2004).

Although the parties engaged in negotiations as to whether the Department of Transportation (DOT) would be responsible for relocating the owner’s gasoline pumps, the DOT had not exercised its authority under R.I. Gen. Laws § 37-6-14 when the owner relocated the pumps; thus, the eminent domain award was proper under R.I. Const. art. I, § 16 . Cumberland Farms, Inc. v. DOT, 844 A.2d 152, 2004 R.I. LEXIS 58 (R.I. 2004).

Trial court’s determination of just compensation under R.I. Const. art. I, § 16 and U.S. Const. amend. V for a condemned parcel of land was not improper; although the trial court decision may not have stated accurately the applicable principles of value enhancement, the trial justice appropriately evaluated the appraisers’ respective comparable sales data, and simply found the Rhode Island Economic Development Corporation’s appraiser’s comparables more probative. Conti v. R.I. Econ. Dev. Corp., 900 A.2d 1221, 2006 R.I. LEXIS 138 (R.I. 2006).

— Interest.

Private property cannot be taken by the state in the exercise of the right of eminent domain without a simultaneous substitution of a just compensation paid to the condemnee which includes interest on the fair market value of the condemned property from the time of taking at least until the state’s offer of a fair market value is made. M. S. Alper & Son v. Director of Pub. Works, 98 R.I. 154 , 200 A.2d 583, 1964 R.I. LEXIS 147 (1964).

A condemnee in eminent domain proceedings was entitled to interest on the damages awarded him from the time of the taking to the time the judgment became final and interest on the total judgment of both principal and interest from the time the judgment became final to the time it was paid. Atlantic Ref. Co. v. Director of Pub. Works, 104 R.I. 436 , 244 A.2d 853, 1968 R.I. LEXIS 664 (1968).

Interest is an element of just compensation under this section. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

The Fifth Amendment and the Rhode Island Constitution require the payment of interest as an element of just compensation when the date of the taking of the property precedes the payment of the award. Tennessee Gas Pipeline Co. v. 104 Acres of Land, 780 F. Supp. 82, 1991 U.S. Dist. LEXIS 17589 (D.R.I. 1991).

— Partial Taking.

The state, in partial-taking cases, must compensate a landowner not only for the value of the land taken but also for any damage to the remainder. Damage to the remainder, if any, is measured by the difference between any special benefits and any special damages accruing thereto. Capital Properties v. State, 636 A.2d 319, 1994 R.I. LEXIS 20 (R.I. 1994).

Nature of Proceedings.

The “taking” in this section is defined to be the actual seizing or direct taking of specific property for public use, as distinguished from incidental injury to it when not taken, on the one hand, or the levying of taxes in the form of money or labor, or even of specific goods, on the other, for the public service. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

Resolutions authorizing the assessments upon improved land of $7 per frontage foot to a maximum of 75 feet and $5.25 per frontage foot for all frontage in excess of 75 feet for land with dwelling houses and $5.25 per frontage foot for all unimproved land was constitutional, such being a reasonable rate differential between improved and unimproved land. Garcia v. Falkenholm, 97 R.I. 450 , 198 A.2d 660, 1964 R.I. LEXIS 103 (1964).

Power to Condemn.

The power to condemn inheres in sovereignty limited in its exercise by the Constitution, but in the absence of such limitation it is exclusively a legislative power. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Municipality may decide necessity and extent of condemnation against water corporation, ex parte without a hearing and without appeal from its decision to an impartial tribunal. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Legislative power to condemn may be delegated to municipal corporations, to private corporations performing a public service, or to legislative commissions as agents of the state or municipality. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Legislature or delegated authority has right to take by condemnation from one property already devoted to a public use and give it to another to be devoted to the same identical public use. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Condemnation of land involves public appropriation of real property that exceeds the owner’s fair share of the state’s needs. The state must therefore provide just compensation to the individual for the appropriated property. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

When a restriction on a property’s use is so great that the landowner ought not to bear the burden for the public good, the restriction is looked upon as a constructive taking. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Ecological or environmental legislation may constitute a taking when all beneficial use of the property affected is denied to the landowner. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

— Police Power.

The distinction between the exercise of the police power and the power of eminent domain is the use to which the property is put and the degree of damage to the property owner. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Use regulations that are reasonably necessary to protect the public health and safety are permissible exercises of the police power which do not require compensation provided that they do not become arbitrary, destructive, or confiscatory. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

Prohibition Inapplicable.

Where no land is physically taken and no interest in it which the law recognizes is extinguished or affected in a manner detrimental to the owner the prohibition against the taking of property without just compensation does not apply. E & J, Inc. v. Redevelopment Agency of Woonsocket, 122 R.I. 288 , 405 A.2d 1187, 1979 R.I. LEXIS 2158 (1979).

An abutting landowner has no property right in the traffic flow, and any diminution in value of his property resulting solely from the abandoning of a street and diversion of traffic is not compensable where right of access is unaffected. E & J, Inc. v. Redevelopment Agency of Woonsocket, 122 R.I. 288 , 405 A.2d 1187, 1979 R.I. LEXIS 2158 (1979).

In seeking a declaration that the Seaconke Wampanoag Indian Tribe was the lawful and equitable owner of a 34-square-mile portion of land bordering the Blackstone River in northern Rhode Island, the Chief of the Tribe brought claims under the Fifth Amendment of the United States Constitution and R.I. Const. art. I, § 16 , pursuant to 42 U.S.C. § 1983, against the state, a city, and a town; the claims against the city and town were dismissed as the Tribe argued that the Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq., deprived it of its aboriginal title. However, United States Supreme Court case law clearly held that the loss of aboriginal title was not a compensable taking under the Fifth Amendment. Greene v. Rhode Island, 289 F. Supp. 2d 5, 2003 U.S. Dist. LEXIS 19532 (D.R.I. 2003), aff'd, 398 F.3d 45, 2005 U.S. App. LEXIS 2252 (1st Cir. 2005).

Public Use Test.

If private property is to be taken, it must be for a use by the public. In re Rhode Island Suburban Ry., 22 R.I. 457 , 48 A. 591, 1901 R.I. LEXIS 37 (1901).

The true test of what constitutes a public use is whether the taking is essential to the service of the public franchise, or whether it pertains only to the private interests of the company in the details of its business. The former constitutes a public use and the latter does not. In re Rhode Island Suburban Ry., 22 R.I. 457 , 48 A. 591, 1901 R.I. LEXIS 37 (1901).

What constitutes public use to justify condemnation is a judicial question. Newport v. Newport Water Corp., 57 R.I. 269 , 189 A. 843, 1937 R.I. LEXIS 96 (1937).

Where city failed to create a planning commission or redevelopment agency and no master plan was generated, city’s taking of plaintiff’s land for resale to a private developer for private profit based only on private consulting firm’s evaluation that this would effectuate revitalization of area did not constitute a proper public use allowing for condemnation under R.I. Const., amend. XXXIII, § 1 (now see R.I. Const., art. VI, § 16 ). O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

Superior court’s order of condemnation pursuant to the quick-take provisions of R.I. Gen. Laws § 42-64-9 was declared void and the airport parking garage lessee’s contract rights were restored because the taking did not meet the criteria for a legitimate public use where it was motivated by a desire for increased revenue, not for a public purpose as required under the Takings Clause set forth in U.S. Const. Amend. V and R.I. Const. art. 1, § 16 . R.I. Econ. Dev. Corp. v. Parking Co. , L.P., 892 A.2d 87, 2006 R.I. LEXIS 22 (R.I. 2006).

Ripeness.

Claims against state and local governments under the federal just compensation clause are not ripe for federal review until the aggrieved party has exhausted the procedures which the state affords for obtaining recompense for the alleged confiscation. Golemis v. Kirby, 632 F. Supp. 159, 1985 U.S. Dist. LEXIS 12888 (D.R.I. 1985).

Because the requirement that landowners seek approval from the planning board before subdividing their land was lawful and was enacted pursuant to due process of law, owners were required to exhaust all administrative remedies in seeking approval of their proposed use before proceeding with any takings action. Petrone v. Town of Foster, 769 A.2d 591, 2001 R.I. LEXIS 94 (R.I. 2001).

Takings.

When amendments to R.I. Gen. Laws § 36-12-4 reduced the state’s contribution to retired state employees’ health benefits, a union and state employees who had not retired did not show that the amendments violated the takings clauses in R.I. Const. art. I, § 16 and U.S. Const. amend. V because no valid contract bound the state to benefits affected by the amendments, as the state’s collective bargaining agreement with the state’s employees had been terminated. Rhode Island Council 94 v. Rhode Island, 705 F. Supp. 2d 165, 2010 U.S. Dist. LEXIS 36582 (D.R.I. 2010).

Association’s takings claim based on ordinances suspending retirees’ cost of living adjustment benefit failed because (1) the claim was analyzed as a regulatory taking, and (2) the ordinances effectuated only a limited suspension of a small part of the overall pension retirement benefits and were prospective. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

Trial court properly granted a city summary judgment on police and fire department retirees’ claim under the Takings Clause because a cost-of-living suspension represented the denial of an expectancy on the part of the retirees and not the removal of tangible property already given to them. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

— Advertising.

Ordinance regulating outdoor advertising was not a taking of property that required the payment of just compensation, since ordinance merely regulated the use of property in order to secure the public welfare. Horton v. Old Colony Bill Posting Co., 36 R.I. 507 , 90 A. 822, 1914 R.I. LEXIS 44 (1914).

— Banking.

G.L. 1909, ch. 237, § 17, as amended by P.L. 1909, ch. 404 [former § 19-11-9 ], in requiring savings bank deposits to be paid to general treasurer subject to repayment to one establishing right thereto, was not a taking of private property in contravention of this section even though charter of savings bank required all income or profit from deposits to be divided among depositors in just proportion. Greenough v. People's Sav. Bank, 38 R.I. 100 , 94 A. 706, 1915 R.I. LEXIS 45 (1915).

The statutory priorities set forth in the Rhode Island Depositors Economic Protection Act of 1991 do not amount to an unconstitutional taking of private property. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

— Businesses and Trades.

P.L. 1877, ch. 629 [§ 11-11-3 ], which places certain restrictions on the types of trades or businesses conducted within one mile of camp meetings held by religious societies, is not in violation of this section, since restrictions may be placed upon an individual’s use of his property in order to promote the public welfare. State v. Read, 12 R.I. 137 , 1879 R.I. LEXIS 1 (1879).

— Churches.

On petition for the assessment of damages caused through the taking by eminent domain of church’s real property by the state for freeway purposes the trial justice did not err in considering the evidence as to land value and other improvements, and depreciated reproduction costs of the parsonage, to assist him in determining the market value of the property taken. Assembly of God Church v. Vallone, 89 R.I. 1 , 150 A.2d 11, 1959 R.I. LEXIS 37 (1959).

— Date of Taking.

In assessing the date of taking by the public building authority in its exercise of the power of eminent domain, absent a prior physical intrusion by the authority upon the property in question, the date upon which the taking occurred could be none other than the date upon which title vested in the authority. Gorham v. Public Bldg. Auth., 612 A.2d 708, 1992 R.I. LEXIS 178 (R.I. 1992).

The mere passage of legislation such as § 45-50-13 authorizing acquisition of property by eminent domain is ordinarily not sufficient, in and of itself, to constitute a taking. Gorham v. Public Bldg. Auth., 612 A.2d 708, 1992 R.I. LEXIS 178 (R.I. 1992).

— Denial of Access.

A substantial denial of access to land is a compensable taking under both the United States and Rhode Island Constitutions. Palazzolo v. Rahill, 121 R.I. 31 , 394 A.2d 690, 1978 R.I. LEXIS 748 (1978).

— Estates and Guardianships.

Resolution of general assembly authorizing mother as guardian of children, to borrow money to repay person who had erected building on lots owned by children prior to appointment of mother as guardian, was unconstitutional since it took the property of the children without just compensation. Burke v. Mechanics' Sav. Bank, 12 R.I. 513 , 1880 R.I. LEXIS 14 (1880).

The contention that § 30-24-9 which provides for title of undisposed of property at death of a veteran in the Veterans’ Home to pass to such Veterans’ Home does not constitute an improper delegation of power nor does it violate the due process and equal protection clause of the federal constitution and the provision of the state constitution against the taking of private property for public uses without just compensation. McElroy v. Hawksley, 97 R.I. 100 , 196 A.2d 172, 1963 R.I. LEXIS 140 (1963).

— Fire Districts.

Creation of fire district in which defendant’s property was located did not constitute the taking of property without just compensation on the ground that he was being taxed for something for which he did not receive a benefit. Wood v. Quimby, 20 R.I. 482 , 40 A. 161, 1898 R.I. LEXIS 97 (1898).

— Flood Districts.

Zoning ordinance establishing “High Flood Danger” district constituted a taking of plaintiff’s land requiring compensation where the permissible and excepted uses under the ordinance were unavailable to plaintiff. Annicelli v. South Kingstown, 463 A.2d 133, 1983 R.I. LEXIS 1010 (R.I. 1983).

— Forfeitures and Penalties.

A statutory provision for forfeiture and destruction of liquors unlawfully kept for sale did not amount to an illegal taking under this section. State v. Snow, 3 R.I. 64 , 1854 R.I. LEXIS 7 (1854).

— Highways, Streets, and Sidewalks.

City surveyor was not liable for damages sustained by property owner as the result of the grading of a city street, since it was the duty of the surveyor to grade the street. Rounds v. Mumford, 2 R.I. 154 , 1852 R.I. LEXIS 22 (1852).

Right of ingress and egress from premises to the street is a property right instead of a privilege and cannot be taken without just compensation except for reasonable regulation in the public interest. Newman v. Mayor of Newport, 73 R.I. 385 , 57 A.2d 173, 1948 R.I. LEXIS 10 (1948).

Chapter 2514 of Public Laws 1950 providing for off-street parking facilities in Providence was constitutionally invalid in its attempted use of the power of eminent domain because it did not make appropriate provisions for securing the payment of compensation. Remington Realty Co. v. City of Providence, 89 R.I. 102 , 151 A.2d 376, 1959 R.I. LEXIS 54 (1959).

— Per Se Taking.

Where there has been no physical invasion of property, there can only be a per se taking if the owner has been deprived of all beneficial and reasonable use of his land. Palazzolo v. State, 746 A.2d 707, 2000 R.I. LEXIS 50 (R.I. 2000), aff'd in part and rev'd in part, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592, 2001 U.S. LEXIS 4910 (2001).

The trial justice was not clearly wrong in finding that a property owner had not been deprived of all beneficial use of his property where, although the value of his remaining property was significantly lower than the speculative amount he allegedly could have earned from filling and developing the wetlands at issue, that lower anticipated return on his investment did not render nugatory the remaining value of the land. Palazzolo v. State, 746 A.2d 707, 2000 R.I. LEXIS 50 (R.I. 2000), aff'd in part and rev'd in part, 533 U.S. 606, 121 S. Ct. 2448, 150 L. Ed. 2d 592, 2001 U.S. LEXIS 4910 (2001).

— Pollution.

Order of board of purification of waters requiring town to submit a plan to prevent pollution of a river did not constitute a taking of property, since the order was issued under the police power to safeguard the health of the community. Board of Purification of Waters v. East Providence, 47 R.I. 431 , 133 A. 812, 1926 R.I. LEXIS 78 (1926).

— Public Utilities.

Statute authorizing town to purchase waterworks did not violate this section on the ground that taxpayers outside fire district would be taxed, since the authority contemplated a waterworks for the entire town, not only the fire district. Peabody v. Westerly Waterworks, 20 R.I. 176 , 37 A. 807, 1897 R.I. LEXIS 73 (1897).

Condemnation by electric railway company for powerhouse, coal pockets, and conduit to carry water was not for a public use, as the company was not limited to a particular location for such purposes, and the source of power to operate cars was the private incidental business of the company, with which the public was not concerned. In re Rhode Island Suburban Ry., 22 R.I. 457 , 48 A. 591, 1901 R.I. LEXIS 37 (1901).

Using original cost less accrued depreciation formula, otherwise known as book cost, in determining utility rates did not violate constitution. Narragansett Elec. Co. v. Kennelly, 88 R.I. 56 , 143 A.2d 709, 1958 R.I. LEXIS 107 (1958).

The removal of depreciated property from the rate base valuation of a utility does not result in confiscation of property because the utility has no right to expect consumers to pay for property no longer used for rendering services. Valley Gas Co. v. Burke, 122 R.I. 374 , 406 A.2d 366, 1979 R.I. LEXIS 1550 (1979).

This section operates as a restraint on the extensive power of the legislature to apportion the tax burden. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

This section protects statutorily exempted entities against administrative malapportionment of taxes. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

Administrative malapportionment of taxes is analogous to legislative imposition of an unconstitutional tax for purposes of this section. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

An official who collects taxes beyond the lawful reach of the legislature “takes” it within the meaning of this section. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

The arbitrary exercise of the tax administrator’s delegated powers results in a taking of private property that requires just compensation under this section. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

Administrative imposition of a tax on a statutorily exempted entity will give rise to a claim under this section in two instances: (1) in the area of statutory interpretation, the tax administrator exercises his authority arbitrarily when his interpretation of a statute defeats unambiguous legislative intent by imposing a tax on an entity that legislature clearly intended to exempt from that tax; and (2) the tax administrator, in his capacity as finder of fact, exercises his authority arbitrarily when he makes findings unsupported by evidence and imposes a tax on an entity clearly exempted from that tax by statute. Gott v. Norberg, 417 A.2d 1352, 1980 R.I. LEXIS 1669 (R.I. 1980).

Where the public utilities commission properly determined that the costs incurred by a utility through an arrangement with its affiliate were unreasonable, ordering a refund under § 39-3-13.1 was not a confiscatory taking in violation of this provision. Block Island Power Co. v. Public Utils. Comm'n, 505 A.2d 652, 1986 R.I. LEXIS 420 (R.I. 1986).

A taking must consist of the actual seizing or direct taking of specific property for public use, as distinguished from incidental injury to it when not taken. The plaintiffs have neither claimed nor established any physical invasion or appropriation of their property when the municipality built a sewer pumping station on an adjoining lot. Moreover, the plaintiffs have an adequate remedy in the law of nuisance and the constitutional prohibition is not implicated in a simple nuisance case. Harris v. Town of Lincoln, 668 A.2d 321, 1995 R.I. LEXIS 302 (R.I. 1995).

— Slum Clearance.

P.L. 1950, ch. 2574, §§ 48(d) and 73 [former § 45-32-5(d) and §§ 45-32-24 to 45-32-39 ], providing for the exercise of eminent domain for clearance of slums by an agency appointed for that purpose, is for a public use and not a private use, since it is in the interest of public health, safety and welfare. Ajootian v. Providence Redevelopment Agency, 80 R.I. 73 , 91 A.2d 21, 1952 R.I. LEXIS 11 (1952).

P.L. 1950, ch. 2574, § 48(d) [former § 45-32-5(d)], which authorized agency to condemn private property for the purpose of clearing a slum area, did not violate provisions of this section, since the acquisition of land by the agency was for a public purpose. Balsamo v. Providence Redevelopment Agency, 84 R.I. 323 , 124 A.2d 238, 1956 R.I. LEXIS 68 (1956).

— Special-Purpose Property.

Property is considered special purpose where it is useful to its owner but has no definite and ascertainable market value, because such property is not regularly bought and sold on the open market. Capital Properties v. State, 636 A.2d 319, 1994 R.I. LEXIS 20 (R.I. 1994).

Vacant, unimproved land that was not being utilized in any specific or designated fashion does not amount to special-purpose property. Capital Properties v. State, 636 A.2d 319, 1994 R.I. LEXIS 20 (R.I. 1994).

— Taxation.

G.S. 1872, ch. 41, § 7, under which mortgaged property could be sold to pay taxes due on all real estate owned by the mortgagor, did not violate this section since the mortgagee took his mortgage subject to this statutory liability. People's Sav. Bank v. Tripp, 13 R.I. 621 , 1882 R.I. LEXIS 53 (1882).

G.L. 1909, ch. 238, §§ 7 and 8 [§§ 32-2-8 and 32-2-9 ], providing for assessment of amounts required to acquire and maintain public parks against cities and towns in the district, does not violate this section, since provision is not a limitation on the taxing power but is for the purpose of preventing illegal exaction under the guise of taxation. In re Opinion of Justices, 34 R.I. 191 , 83 A. 3, 1912 R.I. LEXIS 41 (1912).

Taxation of exercise of power of appointment though power was exercised prior to enactment of G.L. 1923, ch. 39, § 5 [former § 44-22-7] did not violate this section since the state has the power to select and classify the subjects for taxation. Manning v. Board of Tax Comm'rs, 46 R.I. 400 , 127 A. 865, 1925 R.I. LEXIS 9 (1925).

The standard of taxation “full and fair cash value” as set out in G.L. 1923, ch. 60, § 3 [§ 44-5-12 ] is not violation of this section, since the standard imposed gives a substantial basis for uniformity of taxing and does it without discrimination. Allen v. Bonded Mun. Corp., 62 R.I. 101 , 4 A.2d 249, 1938 R.I. LEXIS 16 (1938).

G.L. 1938, ch. 30, § 9, paragraph Fifth [former § 44-4-13], providing for taxation of trust fund in the town where the trustee resides where the person entitled to the income resides outside of the state, did not violate this section. Greenough v. Tax Assessors, 71 R.I. 477 , 47 A.2d 625, 1946 R.I. LEXIS 26 (1946), aff'd, 331 U.S. 486, 67 S. Ct. 1400, 91 L. Ed. 1621, 1947 U.S. LEXIS 2878 (1947).

The exemption to taxation granted for religious and kindred associations is not in derogation of this section prohibiting the taking of private property for public uses without just compensation. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

Res judicata prevented relitigation in federal court of a claim that federal and state constitutional and statutory rights were violated by the repeal of a state tax exemption for certain pension income. Keating v. Rhode Island, 785 F. Supp. 1094, 1992 U.S. Dist. LEXIS 3068 (D.R.I. 1992).

— Wetlands.

Denial of application to alter fresh water wetlands may be attacked on appeal as a violation of the constitutional right not to have property taken without just compensation. J. M. Mills, Inc. v. Murphy, 116 R.I. 54 , 352 A.2d 661, 1976 R.I. LEXIS 1244 (1976).

Prior to the enactment of § 2-1-21(b) of the Fresh Water Wetlands Act which provided for the payment of compensation to aggrieved landowners, defendant’s contention that the act deprived them of all reasonable use of their property without just compensation was without merit since they failed to introduce any evidence indicating that the department of environmental management would have acted unfavorably had either defendant submitted an application for a permit to alter the subject property and they failed to sustain their burden of proof to demonstrate that the statute deprived them of all beneficial or economical use of their property. State v. A. Capuano Bros., 120 R.I. 58 , 384 A.2d 610, 1978 R.I. LEXIS 630 (1978).

— Zoning.

G.L. 1923, ch. 57, § 1, as amended by P.L. 1923, ch. 430, § 1 [former §§ 45-24-1 to 45-24-3], authorizing cities to establish residential districts in which only dwelling houses for one and two families should be permitted and from which apartment houses should be excluded, did not constitute such an undue extension of the police power as to violate this section. City of Providence v. Stephens, 47 R.I. 387 , 133 A. 614, 1926 R.I. LEXIS 63 (1926).

A limitation on the use of property which is not reasonably related to the public health, safety, morals, and general welfare is confiscation and represents a taking of private property for public use without just compensation in violation of this section. Goldstein v. Zoning Bd. of Review, 101 R.I. 728 , 227 A.2d 195, 1967 R.I. LEXIS 828 (1967).

When use regulations are reasonably necessary to protect the public health and safety, they constitute permissible exercises of the police power which did not require compensation. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

A regulation depriving an owner of all beneficial use of his property is confiscatory and requires compensation. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

The comprehensive zoning ordinance passed by the town of Narragansett on November 16, 1987, was the zoning law applicable to the Black Point property at the time it was condemned in 1989, not the special exception obtained under the old zoning ordinance, since the property owner had failed to proceed with the proposed condominium development. Therefore, the value of the land at the time of condemnation could not include the proposed condominium development, because that was an illegal use under the new zoning ordinance. Ocean Rd. Partners v. State, 612 A.2d 1107, 1992 R.I. LEXIS 179 (R.I. 1992).

Collateral References.

Application of Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005), to “public use” restrictions in federal and state constitutions takings clauses and eminent domain statutes. 21 A.L.R.6th 261.

Determination whether exaction for property development constitutes compensable taking. 8 A.L.R.7th Art. 7 (2016).

Eminent domain: compensability of loss of visibility of owner’s property. 7 A.L.R.5th 113.

Fifth Amendment Takings Claims Based on Conversion of Rail Corridor to Recreational Trail Pursuant to National Trails System Act (16 U.S.C. §§ 1241 et seq.). 28 A.L.R. Fed. 3d Art. 6 (2018).

Measure of damages or compensation in eminent domain as affected by premises being restricted to particular educational, religious, charitable or noncommercial use. 29 A.L.R.5th 36.

Measure of Just Compensation in Taking of Wetland. 40 A.L.R.7th Art. 7 (2019).

Remedies for sewage treatment plant alleged or deemed to be nuisance. 101 A.L.R.5th 287.

§ 17. Fishery rights — Shore privileges — Preservation of natural resources.

The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore; and they shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values; and it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.

Compiler’s Notes.

The language “including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore” was new in the 1986 Constitution.

Cross References.

Shore rights preserved against adverse possession, § 34-7-8 .

Law Reviews.

For symposium article, “‘National Fisheries Law and Policy Development of the Commercial Fishing Licenses Act of 2002’ — A New Approach,” see 8 Roger Williams U.L. Rev. 135 (2002).

For article, Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water), see 12 Roger Williams U. L. Rev. 314 (2007).

John Maxwell Greene, Matunuck Beach: Bringing Coastal Erosion into Focus, 18 Roger Williams U. L. Rev. 200 (2013).

Clare M. Harmon, Comment: Bootlegging, Oysters, and Closed-to-Harvest Waters: Adding Teeth to the Coastal Zone Management Act to More Effectively and Efficiently Restore the Coastal Zone, 22 Roger Williams U. L. Rev. 482 (2017).

Alyssa Lauren Lemire, Comment: Raising the Meter in Rhode Island: A Better Approach to Rhode Island’s Net Metering Laws, 25 Roger Williams U. L. Rev. 470 (2020).

Sean Lyness, Article: A Doctrine Untethered: “Passage Along the Shore” Under the Rhode Island Public Trust Doctrine, 26 Roger Williams U. L. Rev. 671 (2021).

NOTES TO DECISIONS

In General.

State holds title to soil under public waters not as proprietor but only in trust for the public to preserve their rights of fishery, navigation and commerce. Nugent ex rel. Collins v. Vallone, 91 R.I. 145 , 161 A.2d 802, 1960 R.I. LEXIS 71 (1960).

The state’s authority over the land below the high water mark is limited by this section. Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1999 R.I. LEXIS 196 (R.I. 1999).

Applicability.

A bill seeking to enjoin city officials from spraying to control mosquitoes contains nothing relating to a threatened interference with complainant’s fishery rights or shore privileges and it is those rights and privileges as they existed at the time of the adopting of the constitution which are preserved by this article. Berberian v. Avery, 99 R.I. 77 , 205 A.2d 579, 1964 R.I. LEXIS 48 (1964).

Although the 1887 R.I. Acts & Resolves 617 had the effect of granting the town of New Shoreham, Rhode Island, all the right, title, and interest of Rhode Island in and to the Great Salt Pond and the land covered thereby, there was no evidence of Rhode Island’s intent to abdicate its public trust responsibilities and police power over the Great Salt Pond. Champlin's Realty Assocs., L.P. v. Tillson, 823 A.2d 1162, 2003 R.I. LEXIS 165 (R.I. 2003).

Boundary Between Shore and Littoral Owners.

For purposes of this constitutional provision, landward boundary of shore is mean-high-tide line (that is, average height of all high waters at a given location over a long span of time) rather than high-water mark (that is, highest point ever reached by tides at a given location). State v. Ibbison, 448 A.2d 728, 1982 R.I. LEXIS 974 (R.I. 1982).

Construction of Former Section.

Former section was intended to be carried into effect by legislative enactments to secure the benefit of the constitutional declaration for all the people and the act in Dig. 1844 at p. 531 “for preservation of oysters and other shellfish within this state” [§ 20-9-1 et seq.] was in accord with this purpose. State v. Cozzens, 2 R.I. 561 (1850).

Former section neither grant nor took away rights of fishery and privilege of the shore but left such rights unaffected, so that the charter of King Charles II and usages which existed before its adoption must be resorted to in order to determine the rights of a citizen of another state. State v. Medbury, 3 R.I. 138 , 1855 R.I. LEXIS 17 (1855).

The term “people” as used in the Constitution is broad and comprehensive, and comprises in most instances all of the inhabitants of the state. State v. Kofines, 33 R.I. 211 , 80 A. 432, 1911 R.I. LEXIS 123 (1911).

“Privileges of the shore,” within the meaning of former section, included the public right of passage along the shore, at least for certain proper purposes. Jackvony v. Powel, 67 R.I. 218 , 21 A.2d 554, 1941 R.I. LEXIS 92 (1941).

Former section did not confer rights to those who resort to fishery for commercial purposes in excess of those granted to the people of the state generally. Opinion to Senate, 87 R.I. 37 , 137 A.2d 525, 1958 R.I. LEXIS 3 (1958).

Construction of Power Line.

Where the Public Utilities Commission assessed a transmission line project as a whole and stated “to the extent that landowners will be inconvenienced by construction of the company’s proposed line, we believe such inconvenience to be outweighed by the public’s need for the transmission line supply system as presented by the company,” its findings complied with the requirements set forth in this section. In re Narragansett Elec. Co., 544 A.2d 121, 1988 R.I. LEXIS 104 (R.I. 1988).

Leases.

Contract between a resident of Rhode Island and a company located outside the state, under which the resident took oyster leases in his name for the benefit of the company, which financed the business, was not in violation of former section, since the resident was in possession of the fishery, superintended its cultivation, and received compensation for his services as lessee and superintendent. New Eng. Oyster Co. v. McGarvey, 12 R.I. 385 , 1879 R.I. LEXIS 43 (1879).

P.L. 1901, ch. 896, § 3, as amended by P.L. 1901, ch. 897, which permitted the town of South Kingstown to open a channel between Point Judith Pond and the ocean and to privately lease same, did not violate state Constitution on the ground that it gave the benefit from leasing to the town instead of the state as a whole, where act provided for payment of expense of opening of the channel by the town. State v. Nelson, 31 R.I. 264 , 77 A. 170, 1910 R.I. LEXIS 84 (1910).

Obstruction of Fishing.

General assembly was entitled to authorize the filling or partial filling of a cove where people in the past have been accustomed to clam and fish, but where due to extensive changes the fisheries had either ceased to exist or no longer were of any value. Clark v. City of Providence, 16 R.I. 337 , 15 A. 763, 1888 R.I. LEXIS 78 (1888).

Regulation of Fishing.

P.L. 1901, ch. 853 [§ 20-10-1 et seq.], authorizing shellfish commissioners to lease state oyster lands, was not unconstitutional on the ground that an exclusive fishery would be established in derogation of rights of the people under former section, since the right of the general assembly to control the whole subject of fisheries was not abridged by former section. Payne & Butler v. Providence Gas Co., 31 R.I. 295 , 77 A. 145, 1910 R.I. LEXIS 83 (1910).

P.L. 1909, ch. 437, §§ 1, 2 [§§ 20-12-1 , 20-12-2 ] providing that no one shall catch lobsters within waters in the jurisdiction of the state unless licensed to do so, and authorizing commissioners to grant or refuse licenses to “such citizens of the state who have resided therein for one year” did not violate former section, since the statute was a proper enactment by the legislature under the police power in a matter concerning only the people of the state, and was a purely local matter for conservation of one species of shellfish. State v. Kofines, 33 R.I. 211 , 80 A. 432, 1911 R.I. LEXIS 123 (1911).

Under former section the general assembly has the power to regulate the fisheries in the public waters and therefore could require under P.L. 1928, ch. 1167 [§ 20-18-1 et seq.] that persons obtain a license before erecting or maintaining any fish trap within certain limits. Windsor v. Coggeshall, 54 R.I. 38 , 169 A. 326, 1933 R.I. LEXIS 14 (1933).

The general assembly in the exercise of its power of regulation of the fisheries in the public waters has power to authorize enforcement of its regulations penally or by injunction and therefore could confer jurisdiction in equity upon the superior court to restrain violation of P.L. 1928, ch. 1167 [§ 20-18-1 et seq.], even though it might deprive the defendant of a right to trial by jury. Windsor v. Coggeshall, 54 R.I. 38 , 169 A. 326, 1933 R.I. LEXIS 14 (1933).

It is within the power of the general assembly to prohibit the taking of striped bass from the waters of the state at any time or for any length of time. Opinion to Senate, 87 R.I. 37 , 137 A.2d 525, 1958 R.I. LEXIS 3 (1958).

The legislature may not permit one class of citizens to take certain fish while prohibiting entirely the taking thereof by another class of citizens. Opinion to Senate, 87 R.I. 37 , 137 A.2d 525, 1958 R.I. LEXIS 3 (1958).

Since commercial fishermen failed to carry their burden of showing that a statute forbidding use of self-contained underwater breathing apparatus equipment to harvest shellfish from four named saltwater coastal ponds violated their equal protection and substantive due process guarantees, a trial court erred in entering summary judgment in their favor; R.I. Const. art. I, § 17 obliged the legislature to act to safeguard fishery resources for all citizens, not just commercial fishermen, and the challenged statute had a rational relationship to that duty, which was all that was required. Cherenzia v. Lynch, 847 A.2d 818, 2004 R.I. LEXIS 49 (R.I. 2004).

Rhode Island Department of Environmental Management was entitled to summary judgment on the fishermen’s claim that the lobster trap allocation scheme under R.I. Marine Fisheries Regulation 15.14.2-6 denied the fishermen their fundamental right of equal access to the fisheries as guaranteed by R.I. Const. art. I, § 17 and denied them equal protection of the laws in violation of R.I. Const. art. I, § 2 ; the LTA scheme only prohibited them from fishing for lobster by way of pot traps, and the fishermen had no fundamental right to harvest lobster using a specific method of fishing. Therefore, because the LTA scheme did not offend R.I. Const. art. I, § 17 , no fundamental right of fishery was implicated in the matter, and the 2001-2003 control period was rationally related to the legitimate government goal of conservation of the lobster fishery. Rhode Island Fishermen's Alliance, Inc. v. Dep't of Envtl. Mgmt., 2008 U.S. Dist. LEXIS 77887 (D.R.I. Oct. 3, 2008), aff'd, 585 F.3d 42, 2009 U.S. App. LEXIS 23344 (1st Cir. 2009).

Because the denial of a preferred license to a commercial fisherman did not implicate a fundamental right of fishery or to pursue a common occupation of life, and because R.I. Gen. Laws § 20-2.1-5 comported with both the state and federal due process and equal protection clauses, the denial by the Department of Environmental Management was upheld. Riley v. R.I. Dep't of Envtl. Mgmt., 941 A.2d 198, 2008 R.I. LEXIS 15 (R.I. 2008).

Use of Beach Areas.

While this section confers upon nude bathers the right to use a beach area, that right extends only to the area below the mean high-tide line and recognized points of access thereto. New England Naturist Ass'n v. Larsen, 692 F. Supp. 75, 1988 U.S. Dist. LEXIS 8264 (D.R.I. 1988).

Violation.

P.L. 1940, ch. 848, amending P.L. 1939, ch. 759 and authorizing beach commission of city of Newport to erect fences on land between high and low-water marks and thereby to exclude the public from that part of the shore or admit them in its discretion and to control that part of the shore as if it belonged to the city of Newport, violated this section. Jackvony v. Powel, 67 R.I. 218 , 21 A.2d 554, 1941 R.I. LEXIS 92 (1941).

§ 18. Subordination of military to civil authority — Martial law.

The military shall be held in strict subordination to the civil authority. And the law martial shall be used and exercised in such cases only as occasion shall necessarily require.

Cross References.

Command of military forces, § 30-2-1 et seq.

Comparative Provisions.

Military powers:

Conn. 1965 Const., art. First, § 16.

Mass. Const. Pt. 1, Art. 17.

§ 19. Quartering of soldiers.

No soldier shall be quartered in any house in time of peace, without the consent of the owner; nor, in time of war, but in manner to be prescribed by law.

Cross References.

Federal guaranty against quartering of soldiers. U.S. Const., Amend. III.

Comparative Provisions.

Quartering soldiers:

Conn. 1965 Const., art. First, § 17.

Mass. Const. Pt. 1, Art. 27.

§ 20. Freedom of press.

The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.

Cross References.

Federal guaranty of freedom of press, U.S. Const., Amend. I.

Truth as defense to libel or slander, § 9-6-9 .

Comparative Provisions.

Freedom of press:

Conn. 1965 Const., art. First, §§ 4, 5.

Mass. Const. Pt. 1, Art. 16.

NOTES TO DECISIONS

In General.

Action of bureau of police and fire under P.L. 1926, ch. 791 [§§ 5-22-5 to 5-22-12 ] did not violate this section where bureau refused without a hearing to grant license to show movie because held to be against public welfare and morals, since exhibition of motion pictures is not part of public press. Thayer Amusement Corp. v. Moulton, 63 R.I. 182 , 7 A.2d 682, 1939 R.I. LEXIS 74 (1939).

Where a commission acted pursuant to legislative act in compiling lists of publications which it deemed completely objectionable for sale to youths under eighteen years of age and notified distributors doing business within the state, asking their cooperation removing the objectionable publications from sale, to eliminate the necessity of recommending prosecution; and also sending these lists to local police authorities, it violated United States Const. Amend. 1 and 14 in that it deprived a publisher of his constitutional right to distribute his books in the state, without a hearing. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584, 1963 U.S. LEXIS 2094 (1963).

The right of access to criminal trials, as established in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), does not apply to juvenile proceedings. Edward A. Sherman Publishing Co. v. Goldberg, 443 A.2d 1252, 1982 R.I. LEXIS 834 (R.I. 1982).

Basis of Opinion.

A person does not abuse his state constitutional liberty of publishing sentiments on any subject if those sentiments are in the form of an opinion based upon disclosed, nondiscriminatory facts. Beattie v. Fleet Nat'l Bank, 746 A.2d 717, 2000 R.I. LEXIS 52 (R.I. 2000).

There was no actionable defamation where a one-page letter and seven-page attachment set forth in detail the factual grounds for an opinion, even if those underlying facts were misleading, incomplete, or erroneous. Beattie v. Fleet Nat'l Bank, 746 A.2d 717, 2000 R.I. LEXIS 52 (R.I. 2000).

Broadcasting.

A television station has no constitutional privilege against disclosure of the unbroadcast portions of a videotaped nonconfidential interview. Outlet Communications v. State, 588 A.2d 1050, 1991 R.I. LEXIS 57 (R.I. 1991).

Obscenity.

Obscenity is not within the area of constitutionally protected speech or press. State v. Settle, 90 R.I. 195 , 156 A.2d 921, 1959 R.I. LEXIS 138 (1959).

Truth as Defense.

Where plaintiff had been convicted of selling liquor without a license, a misdemeanor, it was for the jury, in determining whether defendant had written the truth, to decide whether statement in circular by defendant that plaintiff was a “convicted felon” meant only a conviction for the liquor offense. Perry v. Man, 1 R.I. 263 , 1849 R.I. LEXIS 6 (1849).

Where a newspaper pleaded truth as a defense in a libel action, an instruction by the court which quoted this section and further stated that the defendant was required to establish by a fair preponderance of the evidence that the matters published were true, were actuated by no malice, and were published in good faith, was a correct statement of the law. Cardarelli v. Providence Journal Co., 33 R.I. 268 , 80 A. 583, 1911 R.I. LEXIS 125 (1911).

Collateral References.

First Amendment Protection Against Curtailment of Access to, or Retaliation for Communications on, Social Media. 38 A.L.R. Fed. 3d Art. 5 (2019).

Propriety of exclusion of press or other media representatives from civil trial. 39 A.L.R.5th 103.

Propriety of publishing identity of sexual assault victim. 40 A.L.R.5th 787.

Status and Effect of Public Access Channels as “Public Forums” Under First Amendment. 38 A.L.R. Fed. 3d Art. 8 (2019).

§ 21. Right to assemble — Redress of grievances — Freedom of speech.

The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted.

Compiler’s Notes.

The second sentence of this section was new in the 1986 Constitution.

Cross References.

Federal guaranty of right to assemble and petition for redress, U.S. Const., Amend. I.

Petitions to general assembly, §§ 22-9-1 , 22-9-2 .

Law Reviews.

For article, “Rhode Island’s Access to Public Records Act: An Application Gone Awry,” see 8 Roger Williams U.L. Rev. 293 (2003).

For note, “On Tap, 44 Liquormart, Inc. v. Rhode Island: Last Call For The Commercial Speech Doctrine,” see 2 R.W.U.L. Rev. 57 (1996).

Comparative Provisions.

Right of assembly and freedom of speech:

Conn. 1965 Const., art. First, §§ 4, 14.

Mass. Const. Pt. 1, Art. 16; Pt. 1, Art. 19.

NOTES TO DECISIONS

Regulation of Entertainment.

In proving the constitutionality under this section of city zoning ordinances that limited the location of adult entertainment businesses, in addition to establishing that the ordinances were content-neutral and allowed for reasonable alternative venues for such entertainment, the government had the burden of showing that the regulated activity was a regular and substantial part of the business’s course of conduct. DiRaimo v. City of Providence, 714 A.2d 554, 1998 R.I. LEXIS 170 (R.I. 1998).

Rights Not Violated.

Constitutional rights of school teachers were not violated by enjoining them from striking. City of Pawtucket v. Pawtucket Teachers' Alliance, 87 R.I. 364 , 141 A.2d 624, 1958 R.I. LEXIS 66 (1958).

The state’s revocation of a bail bondsman’s license for disruptive behavior in a courthouse in which the bondsman argued with an assistant court clerk over the change of bail to another bondsman did not constitute an unconstitutional denial of free speech. A courthouse is a “limited public forum” for the presentation of testimony and the argument of advocates in a controlled judicial setting, and is not a forum in which the disruption of clerical functions may take place at the option of members of the public. In re Cross, 617 A.2d 97, 1992 R.I. LEXIS 206 (R.I. 1992).

Rights Violated.

R.I. Gen. Laws § 11-22-2(3), on its face, operates as an unconstitutional prior restraint on speech because it grants a local official unbridled discretion to approve or deny sign postings on even private property that overlaps with a public highway right of way. As currently constructed, § 11-22-2(3) is not sufficiently narrow and violates the First Amendment, and concomitantly, R.I. Const. art. I, § 21 . Driver v. Town of Richmond, 570 F. Supp. 2d 269, 2008 U.S. Dist. LEXIS 58485 (D.R.I. 2008).

Perennial political candidate was entitled to partial summary judgment on liability because the removal of his political signs from roadside locations by a police chief violated his rights of free speech and he was entitled to declaratory relief on his claim that R.I. Gen. Laws § 11-22-2(3) was unconstitutional on its face as it vested unbridled discretion in local officials to permit or deny expressive activity. Driver v. Town of Richmond, 570 F. Supp. 2d 269, 2008 U.S. Dist. LEXIS 58485 (D.R.I. 2008).

Town Ordinances.

Town ordinance which proscribes picketing conducted “in front of, adjacent to or with respect to any property used for residential purposes” does not violate the first amendment and does not unconstitutionally vest unbridled discretion in the town police chief. Town of Barrington v. Blake, 568 A.2d 1015, 1990 R.I. LEXIS 19 (R.I. 1990).

Collateral References.

Construction and Application of Reed v. Town of Gilbert, Ariz., Providing that Speech Regulation Targeted at Specific Subject Matter Is Content-Based Even if It Does Not Discriminate Among Viewpoints Within that Subject Matter. 24 A.L.R.7th Art. 6 (2017).

First amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

First amendment protection afforded to comic books, comic strips, and cartoons. 118 A.L.R.5th 213.

First amendment protection afforded to commercial and home video games. 106 A.L.R.5th 337.

First Amendment Protection Against Curtailment of Access to, or Retaliation for Communications on, Social Media. 38 A.L.R. Fed. 3d Art. 5 (2019).

First amendment protection for school principals subjected to demotion, transfer, or reassignment because of speech. 4 A.L.R. Fed. 3d Art. 5 (2015).

Invasion of privacy by use of plaintiff’s name or likeness in advertising — First Amendment cases. 15 A.L.R.7th Art. 6 (2016).

Liability for discharge of employee from private employment on ground of political views or conduct. 38 A.L.R.5th 39.

Partisan Gerrymandering as Violation of First Amendment. 37 A.L.R. Fed. 3d Art. 7 (2019).

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 (5 U.S.C. § 552a(e)(7)). 20 A.L.R. Fed. 2d 437.

Protection of commercial speech under First Amendment — Supreme Court cases. 164 A.L.R. Fed. 1.

State Constitutional Right of Freedom to Assembly Provisions. 41 A.L.R.7th Art. 7 (2019).

Status and Effect of Public Access Channels as “Public Forums” Under First Amendment. 38 A.L.R. Fed. 3d Art. 8 (2019).

University code or policy forbidding speech or conduct that is offensive, degrading, or the like as violative of first amendment rights. 13 A.L.R. Fed. 3d Art. 2 (2016).

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child. 42 A.L.R.5th 291.

Validity of regulation by public-school authorities as to clothes or personal appearance of pupils. 58 A.L.R.5th 1.

Validity of Restrictions Imposed during National Political Conventions Impinging upon Rights to Freedom of Speech and Assembly under First Amendment. 46 A.L.R.6th 465.

Validity of statutes and ordinances regulating operation of sexually oriented businesses — Legal issues and principles. 20 A.L.R.6th 161.

Validity of statutes and ordinances regulating operation of sexually oriented businesses — Types of businesses regulated. 21 A.L.R.6th 425.

Validity Under First Amendment of Statutes Limiting Automatic Dialing and Announcing Device (ADAD) and Robocalls. 48 A.L.R.7th Art. 1 (2020).

Validity, under state constitutions, of private shopping center’s prohibition or regulation of political, social, or religious expression or activity. 52 A.L.R.5th 195.

§ 22. Right to bear arms.

The right of the people to keep and bear arms shall not be infringed.

Cross References.

Federal guaranty of right to bear arms, U.S. Const., Amend. II.

Law Reviews.

2004 Survey of Rhode Island Law: Case: Constitutional Law, see 10 Roger Williams U. L. Rev. 859 (2005).

For article, The Obfuscation of Rhode Island’s Clearly Expressed Constitutional Right to Bear Arms, see 11 Roger Williams U. L. Rev. 651 (2006).

Comparative Provisions.

Bearing arms:

Conn. 1965 Const., art. First, § 15.

Mass. Const. Pt. 1, Art. 17.

NOTES TO DECISIONS

Licensing Requirements.

Constitutional guarantee of the right to keep and bear arms is not infringed by state licensing requirements in § 11-47-8 which prohibit unlicensed carrying of a pistol or revolver on one’s person except in his home, his place of business, or upon land possessed by him. State v. Storms, 112 R.I. 121 , 308 A.2d 463, 1973 R.I. LEXIS 962 (1973).

Because R.I. Gen. Laws § 11-47-18 vests the attorney general with discretion to refuse a license even if a person makes a proper showing of need, it has no impact on any constitutionally protected liberty interest, nor does the refusal of the attorney general to issue a permit under the provisions of § 11-47-18 violate the right of the people to keep and bear arms. Mosby v. Devine, 851 A.2d 1031, 2004 R.I. LEXIS 120 (R.I. 2004).

Collateral References.

Construction and Application of United States Supreme Court Holding in District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that Second Amendment Confers Individual Right to Keep and Bear Arms to Federal Statutes Regulating Firearms and Other Weapons or Devices. 56 A.L.R. Fed 2d 1.

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms. 86 A.L.R.4th 931.

§ 23. Rights of victims of crime.

A victim of crime shall, as a matter of right, be treated by agents of the state with dignity, respect and sensitivity during all phases of the criminal justice process. Such person shall be entitled to receive, from the perpetrator of the crime, financial compensation for any injury or loss caused by the perpetrator of the crime, and shall receive such other compensation as the state may provide. Before sentencing, a victim shall have the right to address the court regarding the impact which the perpetrator’s conduct has had upon the victim.

Compiler’s Notes.

This section was new in the 1986 Constitution.

Cross References.

Victim's rights, § 12-28-1 et seq.

Law Reviews.

Caselaw Survey Section: Constitutional Law, see 4 R.W.U.L. Rev. 621 (1999).

NOTES TO DECISIONS

Rights of Crime Victims.

Although this section states crime victims shall receive such other compensation as the state may provide, the legislature did not create such a remedy and the court will not sit as a super legislative body and create one. Bandoni v. State, 715 A.2d 580, 1998 R.I. LEXIS 259 (R.I. 1998).

Failure by state or municipal officials to notify crime victims of their rights as required by § 12-28-3 does not give rise to an implied civil cause of action for monetary damages. Bandoni v. State, 715 A.2d 580, 1998 R.I. LEXIS 259 (R.I. 1998).

The constitutional right of a victim to address the court regarding the impact of the perpetrator’s conduct is not conditional upon the victim’s first requesting the opportunity to address the court for this purpose. State v. Lessard, 754 A.2d 756, 2000 R.I. LEXIS 158 (R.I. 2000).

Collateral References.

Admissibility of victim impact evidence in noncapital state proceedings. 8 A.L.R.7th Art. 6 (2016).

Validity, construction, and application of state constitutional or statutory victims’ bill of rights. 91 A.L.R.5th 343.

§ 24. Rights not enumerated — State rights not dependent on federal rights.

The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people. The rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States.

Compiler’s Notes.

This section was new in the 1986 Constitution.

Cross References.

Federal guaranties as to rights retained by people, U.S. Const., Amend. 9, 10.

NOTES TO DECISIONS

Law Affecting Particular City.

This clause did not necessarily imply that the general assembly had no power to pass a law affecting a particular town or city. Newport v. Horton, 22 R.I. 196 , 47 A. 312, 1900 R.I. LEXIS 86 (1900).

Local Self-Government.

P.L. 1900, ch. 804, establishing a board of police commissioners for the city of Newport, did not interfere with right of the city to local self-government, so far as power of such board to appoint chief of police is concerned, as the right of a city to the sole control of its police force is not within provisions of this section. Newport v. Horton, 22 R.I. 196 , 47 A. 312, 1900 R.I. LEXIS 86 (1900).

Legislature could withdraw right of city, through its mayor and aldermen, to appoint police and fire commissioners and a public service engineer, and could provide for a state-appointed board of public safety to serve these functions, since cities and towns have no inherent right of local government. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

Right to Resist Arrest.

Any rights reserved to an individual by the state constitution were subject to the general assembly’s police power, and the abolition of the right to resist an unlawful arrest was a proper exercise of that power. State v. Ramsdell, 109 R.I. 320 , 285 A.2d 399, 1971 R.I. LEXIS 1061 (1971).

Self-Defense.

No right of self-defense is assured by the provision that the enumeration of rights in the declaration of rights shall not be construed to impair or deny others retained by the people. State v. Storms, 112 R.I. 121 , 308 A.2d 463, 1973 R.I. LEXIS 962 (1973).

Unreasonable Seizures.

By constitutionally providing against unreasonable seizures, the people have inferentially recognized the necessity for reasonable regulations in this regard. Kavanagh v. Stenhouse, 93 R.I. 252 , 174 A.2d 560, 1961 R.I. LEXIS 102 (1961).

Article II Of Suffrage

§ 1. Persons entitled to vote.

Every citizen of the United States of the age of eighteen years or over who has had residence and home in this state for thirty days next preceding the time of voting, who has resided thirty days in the town or city from which such citizen desires to vote, and whose name shall be registered at least thirty days next preceding the time of voting as provided by law, shall have the right to vote for all offices to be elected and on all questions submitted to the electors, except that no person who has been lawfully adjudicated to be non compos mentis shall be permitted to vote. No person who is incarcerated in a correctional facility upon a felony conviction shall be permitted to vote until such person is discharged from the facility. Upon discharge, such person’s right to vote shall be restored. The general assembly may provide by law for shorter state and local residence requirements to vote for electors for president and vice president of the United States.

History of Section.

A proposed amendment to Article II, § 1 of the Constitution by Resolution 340 of P.L. 2005 (S458) and by Resolution 342 of P.L. 2005 (H6579) was approved by a majority of the electorate voting in a statewide referendum on November 7, 2006.

Compiler’s Notes.

The 2006 amendment amended the second and third sentences of this section, which were new in the 1986 Constitution.

Cross References.

Absentee voting, § 17-20-1 et seq.

Denial of franchise because of race, color, or previous condition of servitude prohibited, U.S. Const., Amend. XV.

Denial of franchise because of sex, U.S. Const., Amend. XIX.

Registration of voters, § 17-9.1-1 et seq.

NOTES TO DECISIONS

Election of Civil Officers.

Former R.I. Const. Amend., Art. VII, § 1 , did not apply to fire districts, which are considered quasi-public corporations, as the term “civil officers” primarily if not solely related to municipal and state officers. Wood v. Quimby, 20 R.I. 482 , 40 A. 161, 1898 R.I. LEXIS 97 (1898).

An act which required a vote for one person only for office of town councilman, the five candidates receiving highest number of votes to be elected, would restrict the right of qualified voters to vote in the election of all civil officers, in violation of former R.I. Const., Art. II, § 1 , and former R.I. Const. Amend., Art. VII, § 1 . In re Opinion of Judges, 21 R.I. 579 , 41 A. 1009 (1898).

Former R.I. Const. Amend., Art. VII, § 1 , did not guarantee to every elector the right to vote for all civil officers, but only guaranteed the right to vote for those civil officers elected by the people. In re Election of Sch. Comm., 28 R.I. 629 , 72 A. 417, 1903 R.I. LEXIS 137 (1903).

The Hare system for election of city council consisting of nine members, so that each elector would vote for only one member, would violate former R.I. Const. Amend., Art. XX, § 1 , since it was mandatory upon the legislature to accord each elector the right to vote for each elective officer. Opinion to Governor, 62 R.I. 316 , 6 A.2d 147, 1939 R.I. LEXIS 36 (1939).

The word “all” in the clause “shall have a right to vote in the election of all civil officers” in former R.I. Const. Amend., Art. XX, § 1 , meant that an elector had the right to vote for all officers subject to election and he could not be limited by the legislature to voting for only one officer. Opinion to Governor, 62 R.I. 316 , 6 A.2d 147, 1939 R.I. LEXIS 36 (1939).

As qualified electors have the right to vote for all officers to be elected, the legislature is not permitted to deny a qualified elector the right to vote for the candidate of his choice for every elective office to be filled and the pairing system cannot be reconciled with the constitutional requirement of this amendment. Chase v. Burns, 114 R.I. 485 , 335 A.2d 334, 1975 R.I. LEXIS 1442 (1975).

Property Ownership.

Since fire protection is a governmental function, voting restriction granting franchise only to land owners set forth in a legislative charter of a fire district must be shown to be necessary to promote a compelling state interest. Flynn v. King, 433 A.2d 172, 1981 R.I. LEXIS 1239 (R.I. 1981).

No compelling state interest was promoted by denying franchise to otherwise qualified voters who did not own property in a local fire district and thus the legislative charter of the fire district denied equal protection to certain qualified voters and was invalid. Flynn v. King, 433 A.2d 172, 1981 R.I. LEXIS 1239 (R.I. 1981).

Qualifications of Electors.

Under former R.I. Const. Amend., Art. VII, § 1 , a voter who had resided in a town for more than six months prior to an election and who filed a certificate of registration issued by the town clerk of another town in the state within the year last passed, should have been placed on the voting list of the town not only for general elections but also for elections of town officers. In re Voter's Certificate, 19 R.I. 726 , 37 A. 810, 1896 R.I. LEXIS 91 (1896).

Where name of naturalized citizen was placed on voting list and he was permitted to vote for office of councilman, such citizen was a qualified elector for the office within the meaning of former R.I. Const., Art. IX, § 1 , and former R.I. Const. Amend., Art VII, § 1, where he was otherwise qualified but failed to file proof of citizenship as required by G.L. 1909, ch. 7, § 2 [former § 17-9-9], and election of such citizen to office of councilman would not be set aside. Bryer v. Sevigney, 42 R.I. 187 , 106 A. 155, 1919 R.I. LEXIS 20 (1919).

In order to be “a qualified elector” for “civil office” the holder of a state civil office must be eligible to vote in a state election and the holder of a local civil office in a local election, and this eligibility requirement extends to the holder of civil office and not to the holders of other type of governmental positions. Advisory Opinion to Senate, 108 R.I. 551 , 277 A.2d 750, 1971 R.I. LEXIS 1305 (1971).

— Effect on Residency Requirements.

This amendment does not nullify the senatorial district residency requirement of § 17-23-4 , and therefore a state senator’s conviction under § 17-23-10 for registering a voter in violation of that requirement was not invalid. State v. Woodcock, 118 R.I. 296 , 373 A.2d 803, 1977 R.I. LEXIS 1458 (1977).

— Residence and Home.

The word “residence” as used in former R.I. Const., Art. II, §§ 1 and 2, meant the domicile or home of the elector rather than his place of actual habitation or abode, so that an elector who temporarily changed his place of abode to another city did not lose his right to vote or hold office in the city in which he maintained his residence. State ex rel. Goldsworthy v. Aldrich, 14 R.I. 171 , 1883 R.I. LEXIS 28 (1883).

The standard to ascertain an elector’s qualification as to his “residence and home” was not that of mere residence or actual place of abode, without more, but his voting domicile. In re Opinion of Justices, 65 R.I. 451 , 16 A.2d 331, 1940 R.I. LEXIS 139 (1940).

The abandonment by an elector of his voting domicile is a matter of his intent, to be established by proper proof, with the burden of proof on the one challenging the elector’s qualification, since it is easier to establish a domicile than to prove abandonment. In re Opinion of Justices, 65 R.I. 451 , 16 A.2d 331, 1940 R.I. LEXIS 139 (1940).

Knowledge by the board of canvassers of the mere change by an otherwise qualified elector of his residence to another city or town within six months of an election, so that he is unable to qualify to vote in his new residence, without proof of intent to change his voting domicile, is not of itself sufficient to authorize canvassers to strike him from qualified elector list on grounds of abandonment of voting domicile. In re Opinion of Justices, 65 R.I. 451 , 16 A.2d 331, 1940 R.I. LEXIS 139 (1940).

Question of Eligibility.

Board of canvassers and registration who struck names from voting lists could not raise question of ineligibility of persons under this section where it failed to receive any proof as to disqualifications, especially where matter is before the court one day prior to election. Del Barone v. Hopwood, 56 R.I. 467 , 187 A. 853, 1936 R.I. LEXIS 123 (1936).

Collateral References.

Validity, construction, and application of state criminal disenfranchisement provisions. 10 A.L.R.6th 31.

§ 2. Nomination of candidates — Voter registration — Absentee voting — Conduct of elections — Residency.

The general assembly shall provide by law for the nomination of candidates; for a uniform system of permanent registration of voters; for the exemption from such registration of persons in the active service of the nation and their families absent from the state because of such service, and, in time of war, members of the Merchant Marine; for absentee and shut in voting; for the time, manner and place of conducting elections; for the prevention of abuse, corruption and fraud in voting; and may define by law residence for voting purposes, but no person shall acquire such residence merely by being stationed or assigned in this state in the active service of the United States.

NOTES TO DECISIONS

Voting Machines.

P.L. 1948, ch. 2151, amending G.L. 1938, ch. 318, §§ 2, 6, and 9 [§§ 17-19-1 , 17-19-9 , and 17-19-15 ], did not violate the predecessor to this section by limiting use of master levers on voting machines to columns containing candidates of political organizations qualifying as political parties, since the statute did not limit the right to vote but merely regulated the method of voting so as to promote the orderly and expeditious handling of an election. Morrison v. Lamarre, 75 R.I. 176 , 65 A.2d 217, 1949 R.I. LEXIS 29 (1949).

Article III Of Qualification for Office

§ 1. Qualified electors.

No person shall hold any civil office unless that person be a qualified elector for such office.

Cross References.

Qualifications of electors, R.I. Const., Art. II, § 1 .

NOTES TO DECISIONS

Civil Offices.

A civil office within the meaning of former section had the characteristics of tenure, definite term, general duties in the regular administration of government, right to emoluments and qualification by oath. State ex rel. Cummings v. Crawford, 17 R.I. 292 , 21 A. 546, 1891 R.I. LEXIS 19 (1891).

A fire warden of a fire district whose duties related solely to the extinguishment of fires and the care of apparatus was not a civil officer. State ex rel. Cummings v. Crawford, 17 R.I. 292 , 21 A. 546, 1891 R.I. LEXIS 19 (1891).

An auctioneer appointed by a town council under G.L. 1909, ch. 188, § 1 [former § 45-17-1 ] was the holder of a civil office within the meaning of this section. In re Harrington, 44 R.I. 288 , 117 A. 273, 1922 R.I. LEXIS 42 (1922).

Former provision did not apply to commissioner of housing authority for city of Pawtucket, since he did not individually discharge any substantial part of the sovereign power of the city. State ex rel. Costello v. Powers, 80 R.I. 390 , 97 A.2d 584, 1953 R.I. LEXIS 81 (1953).

The legislation authorizing position of police chief obligates preservation of public peace and order and enforcement of laws and therefore he would be classified a “civil officer” and even though appointed by a municipality under delegated authority, he would still act for inhabitant’s benefit as a state rather than a local officer. Advisory Opinion to Senate, 108 R.I. 551 , 277 A.2d 750, 1971 R.I. LEXIS 1305 (1971).

Qualified Electors.

The provision of former section requiring a person to be a qualified elector before being eligible for a civil office meant that the qualification must exist at the time of his election to office and not at the time of the exercise of the functions of office. State v. Lake, 16 R.I. 511 , 17 A. 552, 1889 R.I. LEXIS 30 (1889).

Where name of naturalized citizen was placed on voting list and he was permitted to vote for office of councilman, such citizen was a qualified elector for the office within the meaning of this section and former R.I. Const. Amend. XI, § 11 , where he was otherwise qualified but failed to file proof of citizenship as required by G.L. 1909, ch. 7, § 2 [§ 17-9-9]. Bryer v. Sevigney, 42 R.I. 187 , 106 A. 155, 1919 R.I. LEXIS 20 (1919).

In order to be “a qualified elector” for “civil office” the holder of a state civil office must be eligible to vote in a state election and the holder of a local civil office in a local election, and this eligibility requirement extends to the holder of civil office and not to the holders of other types of governmental positions. Advisory Opinion to Senate, 108 R.I. 551 , 277 A.2d 750, 1971 R.I. LEXIS 1305 (1971).

§ 2. Disqualification upon conviction or plea of nolo contendere — Requalification following sentence, probation or parole.

An elector shall be disqualified as a candidate for elective or appointive state or local office or from holding such office if such elector has been convicted of or plead nolo contendere to a felony or if such elector has been convicted or plead nolo contendere to a misdemeanor resulting in a jail sentence of six months or more, either suspended or to be served. Such elector shall not, once so convicted, attain or return to any office until three years after the date of completion of such sentence and of probation or parole.

Compiler’s Notes.

This provision was new in the 1986 Constitution; an amendment to the former constitution had limited the right to vote of persons who had been convicted of a felony and served a sentence.

NOTES TO DECISIONS

Conviction.

Nothing in former section purported in any way to limit or restrict the plenary power of the legislature to prescribe any other qualifications or disqualifications or conditions for the holding of public office. The general assembly, therefore, was well within its inherent power, unrestricted by constitutional limitations, when it ratified and adopted the provisions set forth in a city charter that were interpreted to prohibit an incumbent mayor convicted of a felony from seeking to fill the unexpired portion of his term. Gelch v. State Bd. of Elections, 482 A.2d 1204, 1984 R.I. LEXIS 655 (R.I. 1984) (decided under former constitution).

No Rhode Island constitutional provision or statute disqualified a person from holding public office merely because that person was convicted of an offense that results in incarceration for a period of time. Violet v. Voccola, 497 A.2d 709, 1985 R.I. LEXIS 616 (R.I. 1985) (decided under former constitution).

Conviction and imprisonment for a misdemeanor under federal law did not disqualify that person from holding public office in Rhode Island. Violet v. Voccola, 497 A.2d 709, 1985 R.I. LEXIS 616 (R.I. 1985) (decided under former constitution).

Felony.

Although plaintiff was duly elected for the office of representative, since he had been previously convicted of an infamous crime ( R.I. Const., amend. 24, § 1 was operative at that time), the oath of office was properly denied him. Bailey v. Burns, 118 R.I. 428 , 375 A.2d 203, 1977 R.I. LEXIS 1480 (1977) (decided under former constitution).

§ 3. Oath of general officers.

All general officers shall take the following engagement before they act in their respective offices, to wit: You . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . being by the free vote of the electors of this state of Rhode Island, elected unto the place of . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . do solemnly swear (or, affirm) to be true and faithful unto this state, and to support the Constitution of this state and of the United States; that you will faithfully and impartially discharge all the duties of your aforesaid office to the best of your abilities, according to law: So help you God. [Or: This affirmation you make and give upon the peril of the penalty of perjury.]

History of Section. Amended Nov. 3, 2020.

Compiler’s Notes.

The 2020 amendment, which substituted “this state of Rhode Island” for “this state of Rhode Island and Providence Plantations”, was proposed by 2020 Joint Resolutions Nos. 239 and 247 and approved at the November 2020 general election by a vote of 247,261 for and 218,175 against.

§ 4. Oath of general assembly members, judges, and other officers.

The members of the general assembly, the judges of all the courts, and all other officers, both civil and military, shall be bound by oath or affirmation to support this Constitution, and the Constitution of the United States.

Cross References.

Engagement of office of judges, § 8-3-1 .

Oath of office, § 36-1-2 .

Oaths of town and city officers, § 45-4-11 .

§ 5. Administration of oaths.

The oath or affirmation shall be administered to the governor, lieutenant governor, senators, and representatives by the secretary of state, or, in the absence of the secretary of state by the attorney-general. The secretary of state, attorney-general, and general treasurer shall be engaged by the governor, or by a justice of the supreme court.

NOTES TO DECISIONS

Construction.

The oath shall be administered only to those duly elected representatives who are constitutionally qualified to hold the office. Bailey v. Burns, 118 R.I. 428 , 375 A.2d 203, 1977 R.I. LEXIS 1480 (1977) (decided under former constitution).

Denial of Oath.

Although plaintiff was duly elected for the office of representative, since he had been previously convicted of an infamous crime (Amend. 24, § 1 was operative at that time), the oath of office was properly denied him. Bailey v. Burns, 118 R.I. 428 , 375 A.2d 203, 1977 R.I. LEXIS 1480 (1977) (decided under former constitution).

§ 6. Holding of offices under other governments — Senators and representatives not to hold other appointed offices under state government.

No person holding any office under the government of the United States, or of any other state or country, shall act as a general officer or as a member of the general assembly, unless at the time of taking such engagement that person shall have resigned the office under such government; and if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated; but this restriction shall not apply to any person appointed to take deposition or acknowledgment of deeds, or other legal instruments, by the authority of any other state or country.

No senator or representative shall, during the time for which he or she was elected, be appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of this state, and no person holding any executive office or serving as a member of any board, commission or other state or quasi-public entity exercising executive power under the laws of this state shall be a member of the senate or the house of representatives during his or her continuance in such office.

History of Section.

The majority of the electorate approved the separation of powers amendment in a statewide referendum on November 2, 2004; and this result was certified by the Board of Elections on November 23, 2004.

Cross References.

National guard or reserve commission held by civil officer, § 30-14-3 .

Law Reviews.

2005 Survey of Rhode Island Law: Constitutional Law: McKenna v. Williams, 874 A.2d 217 (R.I. 2005), see 11 Roger Williams U. L. Rev. 787 (2006).

For article, Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water), see 12 Roger Williams U. L. Rev. 314 (2007).

Comparative Provisions.

Holding other governmental offices:

Mass. Const. Amend. Art. 8.

NOTES TO DECISIONS

In General.

This section was designed to secure the undivided loyalty of the named officials. Opinion to Governor, 83 R.I. 370 , 116 A.2d 474, 1955 R.I. LEXIS 69 (1955); Davis v. Hawksley, 119 R.I. 453 , 379 A.2d 922, 1977 R.I. LEXIS 1950 (1977).

The existence of a possible conflict of loyalty does not turn upon a determination of whether the offices are naturally incompatible but whether there is an explicit prohibition in the constitution which makes them incompatible. Opinion to Governor, 83 R.I. 370 , 116 A.2d 474, 1955 R.I. LEXIS 69 (1955); Davis v. Hawksley, 119 R.I. 453 , 379 A.2d 922, 1977 R.I. LEXIS 1950 (1977).

Judges.

The first clause refers only to a general officer or member of the General Assembly and does not apply to judges. Davis v. Hawksley, 119 R.I. 453 , 379 A.2d 922, 1977 R.I. LEXIS 1950 (1977).

Acceptance of a judicial position by a member of the United States Army Reserve is not prohibited by the language of this provision. Davis v. Hawksley, 119 R.I. 453 , 379 A.2d 922, 1977 R.I. LEXIS 1950 (1977).

Even if a prohibition in Rhode Island’s constitution against acceptance of appointments by other governments had still applied to judges, it would not have applied to bar the chief justice from accepting an appointment to a military review panel as part of the federal government’s war on terror, because application of the prohibition would have violated the supremacy clause. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

Because justices of the Supreme Court of Rhode Island were no longer elected, they were no longer subject to the prohibition in R.I. Const. art. III, § 6 against serving another government; therefore, a private citizen could not proceed with a petition in equity in the nature of quo warranto challenging the chief justice’s right to remain in office after agreeing to serve on a military review panel as part of the federal government’s war on terror. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

Private citizens, even attorneys, did not have standing to seek declaratory relief by means of what was essentially a proceeding in quo warranto, challenging the right of Rhode Island’s chief justice to continue in office after accepting an appointment to a federal military review panel; only the attorney general could pursue such relief, and whether that officer should pursue it was not something that a court could compel. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

Public Offices.

Whether or not an office constitutes a public office in the constitutional sense is determined by a consideration of the nature, duties and functions of the office and whether the appointee is entitled to exercise some of the sovereign power of the government, and a special representative of the United States to the general assembly of the United Nations would hold a public office, so that acceptance of such an appointment by the governor would result in his immediate vacation of the office of governor. Opinion to Governor, 83 R.I. 370 , 116 A.2d 474, 1955 R.I. LEXIS 69 (1955).

Governor’s membership on the board of directors of the Communications Satellite Corporation does not constitute the holding of an “office under the government of the United States” within the meaning of this section. In re Sundlun, 585 A.2d 1185, 1991 R.I. LEXIS 20 (R.I. 1991).

§ 7. Ethical conduct.

The people of the State of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage. Such persons shall hold their positions during good behavior.

Compiler’s Notes.

This provision was new in the 1986 Constitution.

NOTES TO DECISIONS

In General.

Because R.I. Const. art. 3, § 7 , announces a laudable principle and not a workable rule of law, it is not a self-executing constitutional provision. A.F. Lusi Constr., Inc. v. R.I. Convention Ctr. Auth., 934 A.2d 791, 2007 R.I. LEXIS 105 (R.I. 2007).

Purpose.

The primary intent of R.I. Const., Art. 3 , sections 7 and 8, is to vest in the ethics commission the authority to develop a code of ethics, to investigate violations, and to enforce its provisions, subject to review by the judicial branch of government. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Avoidance of Impropriety.

The case-by-case analysis set forth in Galluci v. Brindamour , 477 A.2d 617 (R.I. 1984) should be utilized in determining whether a particular statute violates this section’s mandate that public officials “avoid the appearance of impropriety.” Such an individualized evaluation is imperative in light of the virtually standardless reach of this section’s sweeping directive. Therefore, whether the General Assembly’s inclusion of chiefs of police as members of local police bargaining units violates this section must be evaluated in light of a particular chief ’s powers, responsibilities, policy-making authority, and the extent of that chief ’s actual involvement in employment negotiations. Town of Lincoln v. Lincoln Lodge No. 22, 660 A.2d 710, 1995 R.I. LEXIS 178 (R.I. 1995).

In a declaratory judgment action brought by a town against a school committee, it was held on appeal that the school committee was prohibited from retaining independent counsel for its legal matters and was required to have the town solicitor handle its legal matters, with the town solicitor having the authority to decline representation if ethical considerations warranted. The appellate court also held that the school committee was a department of the town and, therefore, was required to abide by the town’s charter, which required all legal matters for any of the town’s departments, agencies, or offices to be handled by the town solicitor. Town of Johnston v. Santilli, 892 A.2d 123, 2006 R.I. LEXIS 30 (R.I. 2006).

Right of Action.

Contractor sued the Rhode Island Convention Center Authority, alleging that the methods by which it awarded bids violated R.I. Const. art. 3, § 7 , which enjoined public officials from using their positions for private gain. As R.I. Const. art. 3, § 7 , was not a self-executing provision that gave rise to a private right of action, this claim was properly dismissed. A.F. Lusi Constr., Inc. v. R.I. Convention Ctr. Auth., 934 A.2d 791, 2007 R.I. LEXIS 105 (R.I. 2007).

Given that a separate constitutional provision explicitly directed the Legislature to adopt implementing legislation for R.I. Const. art. III, § 7 , and that such legislation existed in detailed form, the court could not say that the district court erred in granting summary judgment in favor of defendants by holding that plaintiff did not have a private right of action under that provision. Senra v. Town of Smithfield, 715 F.3d 34, 2013 U.S. App. LEXIS 9091 (1st Cir. 2013).

§ 8. Ethics commission — Code of ethics.

The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. The assent of two-thirds (2/3) of the members appointed shall be required for the adoption for every rule or regulation. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate alleged violations of the code of ethics, including acts otherwise protected by Article VI, Section 5, and to impose penalties, as provided by law. Any sanction issued against any party by the ethics commission shall be appealable to the judicial branch as provided by law. The commission shall have the power to remove from office officials who are not otherwise subject to impeachment, or expulsion as provided by Article VI, Section 7.

History of Section. Amended Nov. 8, 2016.

Compiler’s Notes.

This provision was new in the 1986 Constitution.

The 2016 amendment, effective January 3, 2017, was proposed by 2016 Joint Resolutions Nos. 329 and 331 and approved at the November 2016 general election by a vote of 319,765 for and 89,593 against.

The 2016 amendment inserted the second sentence; in the fourth sentence, inserted “alleged” and “including acts otherwise protected by Article VI, Section 5”; inserted the fifth sentence; and added “or expulsion as provided by Article VI, Section 7” in the last sentence.

Cross References.

Code of ethics, § 36-14-1 et seq.

NOTES TO DECISIONS

In General.

This provision confers upon the Rhode Island Ethics Commission the power to enact substantive ethics laws independent of the General Assembly. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

This section empowers the ethics commission to draft, adopt, and enforce ethics codes that proscribe certain conduct by state and local government personnel subject to its regulation. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

If any legislator who serves on any governmental public board, commission, or agency is charged with or suspected of any conduct amounting to or resulting in a conflict of interest, the ethics commission has clear authorization to investigate, charge, and try that legislator, or any other board, commission, or agency member, or any public employee, for having allegedly engaged in prohibited conduct under the code of ethics. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Purpose.

The primary intent of R.I. Const., Art. 3 , sections 7 and 8, is to vest in the ethics commission the authority to develop a code of ethics, to investigate violations, and to enforce its provisions, subject to review by the judicial branch of government. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Appointment Power of General Assembly.

This section does not authorize the ethics commission to remove from the General Assembly all power to appoint persons, including legislators, to public governmental boards, agencies, and commissions. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Limitation of Power of General Assembly.

Given that this provision expressly confers upon the Rhode Island Ethics Commission the limited and concurrent power to enact substantive ethics laws, the General Assembly is limited to enacting ethics laws that are not inconsistent with, or contradictory to, the code of ethics adopted by the commission. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

Representational Government.

This provision does not violate the Guarantee Clause of Article 4, Section 4, of the United States Constitution if it is interpreted as conferring upon the Rhode Island Ethics Commission the power to enact substantive ethics laws independent of the legislature. The fact that the commission members are appointed rather than elected does not destroy the representative form of government guaranteed by the Guarantee Clause since the commission members are appointed by the Governor, two-thirds of whom are taken from lists submitted by the General Assembly, and the General Assembly retains the power to enact laws regulating the composition of the commission and sets penalties for violation of the commission’s rules and regulations. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

Separation of Powers.

The granting to the Rhode Island Ethics Commission, pursuant to this provision of the Rhode Island Constitution, the power to enact substantive ethics laws independent of the legislature does not constitute a violation of the doctrine of separation of powers. This ethics amendment merely shifted the legislative power regarding ethics away from the General Assembly; it did not, however, divest the General Assembly of its “whole” legislative power or the power to enact ethics laws that are not in conflict with those enacted by the commission, nor has the commission assumed powers that are central or essential to the operation of the General Assembly. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

The legislative definition of the term “policemen” by the General Assembly does not violate the “separation of powers” doctrine to the extent that the Rhode Island Ethics Commission is or may be vested with the sole constitutional authority to promulgate “a code of ethics including * * * provisions on conflicts of interest * * *, use of position and contracts with government agencies” pursuant to this section. Town of Lincoln v. Lincoln Lodge No. 22, 660 A.2d 710, 1995 R.I. LEXIS 178 (R.I. 1995).

Universal Exclusion of Legislators From State Boards.

Nothing in this section authorizes or empowers the ethics commission to adopt a regulation that presumes and predetermines a priori, without any evidence of violation and without providing a hearing, that every member of the General Assembly who now serves or will in the future serve on any public board, commission, or agency, or who has nominated, or who may nominate any person for appointment to such governmental entity, is automatically guilty of a conflict of interest or abuse of position. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Nothing in this section authorizes the ethics commission, acting solely upon a predetermined assessment that a conflict of interest exists, to impose as a penalty the global exclusion of General Assembly members from all public governmental boards, commissions, and agencies. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Article IV Of Elections and Campaign Finance

§ 1. Election and terms of governor, lieutenant governor, secretary of state, attorney-general, general treasurer, and general assembly members.

The governor, lieutenant governor, secretary of state, attorney general and general treasurer shall be elected on the Tuesday after the first Monday in November, quadrennially commencing A.D. 1994, and every four (4) years thereafter, and shall severally hold their offices, subject to recall as provided for herein, for four (4) years from the first Tuesday of January next succeeding their election and until their successors are elected and qualified. No person shall serve consecutively in the same general office for more than two (2) full terms, excluding any partial term of less than two (2) years previously served.

The senators and representatives in the general assembly shall be elected on the Tuesday after the first Monday in November, biennially in even numbered years, and shall severally hold their offices for two (2) years from the first Tuesday of January next succeeding their election and until their successors are elected and qualified.

Recall is authorized in the case of a general officer who has been indicted or informed against for a felony, convicted of a misdemeanor, or against whom a finding of probable cause of violation of the code of ethics has been made by the ethics commission. Recall shall not, however be instituted at any time during the first six (6) months or the last year of an individual’s term of office.

Such a recall may be instituted by filing with the state board of elections an application for issuance of a recall petition against said general officer which is signed by duly qualified electors equal to three percent (3%) of the total number of votes cast at the last preceding general election for that office. If, upon verification, the application is determined to contain signatures of the required number of electors, the state board of elections shall issue a recall petition for circulation amongst the electors of the state. Within ninety (90) days of issuance, recall petitions containing the signatures of duly qualified electors constituting fifteen percent (15%) of the total number of votes cast in the last preceding general election for said office must be filed with the state board of elections.

The signatures to the application and to the recall petition need not all be on one (1) sheet of paper, but each such application and petition must contain an identical statement naming the person to be recalled, the general office held by said person, and the grounds for such recall set forth in a statement of one hundred (100) words or less approved by the board of elections. Each signatory must set forth his or her signature as it appears on the voting list, the date of signing, and his or her place of residence. The person witnessing the signatures of each elector on said petition must sign a statement under oath on said sheet attesting that the signatures thereon are genuine and were signed in his or her presence.

If the requisite number of signatures are not obtained within said ninety (90) days period, the recall effort shall terminate. Upon verification of the requisite number of signatures, a special election shall be scheduled at which the issue of removing said office holder and the grounds therefor shall be placed before the electors of the state. If a majority of those voting support removal of said office holder, the office shall be immediately declared vacant and shall be filled in accordance with the constitution and laws of the state. The person so removed shall not be eligible to fill the unexpired portion of the term of office. The general assembly shall provide by statute for implementation of the recall process.

History of Section.

A proposed amendment to Article IV, Section 1 of the R.I. Constitution by Joint Resolution 162 was approved by a majority of the electorate voting in a statewide referendum on November 3, 1992.

Cross References.

Election of general assembly members, § 17-3-1 et seq.

Election of general state officers, § 17-2-1 et seq.

NOTES TO DECISIONS

Appointment Power.

An appointment to the office of Lieutenant Governor made by the Governor under Article IX, § 5 of the state constitution is temporary and does not necessarily extend until the next quadrennial election. In re Request of the Senate for an Advisory Opinion, 696 A.2d 277, 1997 R.I. LEXIS 163 (R.I. 1997).

A proposed act that would statutorily recognize the Governor’s constitutional appointive power under Article IX, § 5 of the state constitution to appoint a Lieutenant Governor but would make the appointment temporary until the General Assembly, by grand committee, acted to fill the position would not violate the constitution if it applied prospectively; however, retroactive application would be unconstitutional in that it would substitute the General Assembly for the people as the normal elective power. In re Request of the Senate for an Advisory Opinion, 696 A.2d 277, 1997 R.I. LEXIS 163 (R.I. 1997).

Vacancies.

So long as an old member of general assembly was present to act before the qualification of his successor, there could be no vacancy at all unless the old member should also die or in some way be disqualified. In re North Smithfield Election, 18 R.I. 817 , 27 A. 597, 1893 R.I. LEXIS 56 (1893).

An office shall become vacant upon failure to elect at an annual town meeting or adjournment thereof, only where there is no incumbent to hold the office, as in the case of a newly created office. State ex rel. Tanner v. Perry, 18 R.I. 276 , 27 A. 606, 1893 R.I. LEXIS 60 (1893).

An elected representative who filed notice of resignation, while the general assembly was in session, with the clerk of the city which he represented continued to hold such office until his successor was elected and qualified. In re Opinion to Governor, 41 R.I. 79 , 102 A. 802 (1918).

The election to office of county sheriff of an elected member of the house of representatives who had filed notice of resignation from the house on the previous day was void under G.L. 1909, ch. 282, § 1 [former § 42-29-2 ]. In re Opinion to Governor, 41 R.I. 79 , 102 A. 802 (1918).

Collateral References.

Constitutionality of state and local recall provisions. 13 A.L.R.6th 661.

Sufficiency of particular charges as affecting enforceability of recall petition. 114 A.L.R.5th 1.

Sufficiency of technical and procedural aspects of recall petitions. 116 A.L.R.5th 1.

§ 2. Election by plurality.

In all elections held by the people for state, city, town, ward or district officers, the person or candidate receiving the largest number of votes cast shall be declared elected.

Cross References.

Certificates of election, § 17-22-5 .

NOTES TO DECISIONS

Pairing of Candidates.

This provision and R.I. Const., Art. II , should be read as corollaries for if the underlying right to full elective choice were undermined, this provision’s guarantee that the candidate receiving the largest number of votes would be declared elected would be meaningless and accordingly, it follows that where the pairing of candidates unjustifiably denies Cumberland voters their right to the full exercise of the franchise in council elections, votes cast under the pairing system cannot be relied upon to reflect the true wishes of the voters, and the substance of this amendment is violated. Chase v. Burns, 114 R.I. 485 , 335 A.2d 334, 1975 R.I. LEXIS 1442 (1975).

§ 3. Filling vacancy caused by death, removal, refusal to serve, or incapacity of elected officers — Election when no candidate receives plurality.

When the governor-elect shall die, remove from the state, refuse to serve; become insane, or be otherwise incapacitated, the lieutenant governor-elect shall be qualified as governor at the beginning of the term for which the governor was elected. When both the governor and lieutenant governor-elect, or either the lieutenant governor, secretary of state, attorney-general, or general treasurer-elect, are so incapacitated, or when there has been a failure to elect any one or more of the officers mentioned in this section, the general assembly shall upon its organization meet in grand committee and elect some person or persons to fill the office or offices, as the case may be, for which such incapacity exists or as to which such failure to elect occurred. When the general assembly shall elect any of said officers because of the failure of any person to receive a plurality of the votes cast, the election in each case shall be made from the persons who received the same and largest number of votes.

NOTES TO DECISIONS

Appointment by Governor.

An appointment to the office of Lieutenant Governor made by the Governor under Article IX, § 5 of the state constitution is temporary and does not necessarily extend until the next quadrennial election. In re Request of the Senate for an Advisory Opinion, 696 A.2d 277, 1997 R.I. LEXIS 163 (R.I. 1997).

A proposed act that would statutorily recognize the Governor’s constitutional appointive power under Article IX, § 5 of the state constitution to appoint a Lieutenant Governor but would make the appointment temporary until the General Assembly, by grand committee, acted to fill the position would not violate the constitution if it applied prospectively; however, retroactive application would be unconstitutional in that it would substitute the General Assembly for the people as the normal elective power. In re Request of the Senate for an Advisory Opinion, 696 A.2d 277, 1997 R.I. LEXIS 163 (R.I. 1997).

§ 4. Temporary appointment to fill vacancies in office of secretary of state, attorney-general, or general treasurer.

In case of a vacancy in the office of the secretary of state, attorney-general, or general treasurer from any cause, the general assembly in grand committee shall elect some person to fill the same; provided, that if such vacancy occurs when the general assembly is not in session the governor shall appoint some person to fill such vacancy until a successor elected by the general assembly is qualified to act.

§ 5. Special elections to fill general assembly vacancies.

When a senator or representative-elect shall die, remove from the state, refuse to serve, become insane, or be otherwise incapacitated, or when at an election for any senator or representative no person shall receive a plurality of the votes cast, a new election shall be held. A vacancy in the senate or house of representatives shall be filled at a new election. The general assembly shall provide by general law for the holding of such elections at such times as to insure that each town and city shall be fully represented in the general assembly during the whole of every session thereof so far as is practicable. Every person elected in accordance with this section shall hold office for the remainder of the term or for the full term, as the case may be, of the office which that person is elected to fill, and until a successor is elected and qualified.

Cross References.

Elections to fill vacancies in general assembly, § 17-3-6 .

NOTES TO DECISIONS

Resignation.

A member of the general assembly had the right to resign his office while the general assembly was in session and create a prospective vacancy by filing notice of resignation with the clerk of the city which such member represented. In re Opinion to Governor, 41 R.I. 79 , 102 A. 802 (1918).

Tender of letter of resignation by elected representative to the house of representatives, its acceptance by the house and declaration that the seat of such representative was vacant, did not constitute a legally effective resignation from office by such representative. In re Opinion to Governor, 41 R.I. 79 , 102 A. 802 (1918).

An elected representative who filed notice of resignation while the general assembly was in session with the clerk of the city which he represented continued to hold such office until his successor was elected and qualified. In re Opinion to Governor, 41 R.I. 79 , 102 A. 802 (1918).

§ 6. Elections in grand committee — Majority vote — Term of elected official.

In elections by the general assembly in grand committee the person receiving a majority of the votes shall be elected. Every person elected by the general assembly to fill a vacancy, or pursuant to Section 3 of this article, shall hold office for the remainder of the term or for the full term, as the case may be, and until a successor is elected and qualified.

NOTES TO DECISIONS

Majority of Votes.

Votes cast for a candidate who was afterwards held disqualified were not illegal votes to be entirely disregarded so that the person receiving the next highest number of votes received the “majority of the votes” within the meaning of this section. Sanders v. Rice, 41 R.I. 127 , 102 A. 914, 1918 R.I. LEXIS 19 (1918).

Where record showed one candidate receiving exactly half the votes cast, no person received a majority of votes within the meaning of this section and there was no election. Carpenter v. Sprague, 45 R.I. 29 , 119 A. 561, 1923 R.I. LEXIS 9 (1923).

Scope of Application.

This section applies only to offices having a definite term and has no effect on provisions of Art. X, § 5, of the Constitution. In re Opinion of Judges, 23 R.I. 635 , 51 A. 221 (1902).

Vacancy.

An office shall become vacant upon failure to elect at an annual town meeting or adjournment thereof only where there is no incumbent to hold office, as in the case of a newly created office in which there is no incumbent holding over. State ex rel. Tanner v. Perry, 18 R.I. 276 , 27 A. 606, 1893 R.I. LEXIS 60 (1893).

So long as an old member of the general assembly was present to act before the qualification of his successor, there could be no vacancy at all unless the old member should die or in some way be disqualified. In re North Smithfield Election, 18 R.I. 817 , 27 A. 597, 1893 R.I. LEXIS 56 (1893).

Where redistribution gave town six representatives instead of two formerly elected, a failure to elect one of the additional representatives created a vacancy since there was no incumbent, and the vacancy could be filled under the provisions of this section by a new election. State ex rel. Tanner v. Perry, 18 R.I. 276 , 27 A. 606, 1893 R.I. LEXIS 60 (1893).

§ 7. Elections in grand committee — Quorum — Permitted activities.

A quorum of the grand committee shall consist of a majority of all the members of the senate and a majority of all the members of the house of representatives duly assembled pursuant to an invitation from one of said bodies which has been accepted by the other, and the acceptance of which has been communicated by message to the body in which such invitation originated, and each house shall be attended by its secretaries and clerks. No act or business of any kind shall be done in grand committee other than that which is distinctly specified in the invitation by virtue of which such grand committee is assembled, except to take a recess or to dissolve; provided, that the grand committee may appoint a subcommittee of its own members to count any ballots delivered to it and report the result of such count.

Cross References.

Proceedings in grand committee, §§ 22-5-1 to 22-5-7 .

NOTES TO DECISIONS

Apportionment.

Since each member of house of representatives is entitled to the standing which his membership bears to the whole, a plan of apportionment by having members vote on a fractional or multiple basis in ratio to population would violate the state constitution. Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

§ 8. Voter registration lists.

It shall not be necessary for the town or ward clerks to keep and transmit to the general assembly a list or register of all persons voting for general officers; but the general assembly shall have power to pass such laws on the subject as it may deem expedient.

§ 9. Reports of campaign contributions and expenses.

The general assembly shall require each candidate for general office in any primary, general or special election to report to the secretary of state all contributions and expenditures made by any person to or on behalf of such candidate, provided however, that the general assembly may limit such disclosure to contributions or expenditures in excess of such an amount as the general assembly shall specify.

§ 10. Limitations on campaign contributions — Public financing of campaign expenditures of general officers.

The general assembly shall adopt limitations on all contributions to candidates for election to state and local office in any primary, general or special election and shall provide for the adoption of a plan of voluntary public financing and limitations on total campaign expenditures of campaigns for governor and such other general officers as the general assembly shall specify.

Compiler’s Notes.

This provision was new in the 1986 Constitution.

Article V Of the Distribution of Powers

The powers of the government shall be distributed into three separate and distinct departments: the legislative, executive and judicial.

History of Amendment.

The majority of the electorate approved the separation of powers amendment in a statewide referendum on November 2, 2004; and this result was certified by the Board of Elections on November 23, 2004.

Law Reviews.

For article, “Appointments by the Legislature Under the Rhode Island Separation of Powers Doctrine: The Hazards of a Road Less Traveled,” see 1 R.W.U.L. Rev. 1 (1996).

For article, Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water), see 12 Roger Williams U. L. Rev. 314 (2007).

NOTES TO DECISIONS

Distribution.

The rights, the property, and the liberties of the people, depend upon the due observance by each department of the constitutional limitations and restrictions upon its authority. In re Opinion of the Supreme Court, 3 R.I. 299 , 1854 R.I. LEXIS 14 (1854).

The Constitution defines the powers given to the executive and judicial departments of the government and all other powers are given to the legislative department unless prohibited in the Constitution. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

This article and the specific provisions vesting powers in the several departments have nothing which require the judicial department to be independent of the exercise of legislative power. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

The constitutional distribution of the powers of the government is at once a grant of specific power to each department and a prohibition to the other two with reference to that same power. Creditors' Serv. Corp. v. Cummings, 57 R.I. 291 , 190 A. 2, 1937 R.I. LEXIS 101 (1937).

Section 30-24-9 which provided that the property of a veteran residing in the Veterans’ Home should pass to the home upon his death if it is undisposed of at that time did not violate this article. McElroy v. Hawksley, 97 R.I. 100 , 196 A.2d 172, 1963 R.I. LEXIS 140 (1963).

Section 45-20-1.1 , which provides for trial de novo in superior court upon appeal by a police officer from a personnel board decision, is not an unconstitutional infringement on the executive power, since the legislature has power to prescribe the mode of appeal from administrative proceedings which are judicial or quasi-judicial in nature. Weeks v. Personnel Bd. of Review, 118 R.I. 243 , 373 A.2d 176, 1977 R.I. LEXIS 1452 (1977).

The Rhode Island Constitution’s distribution of governmental powers grants specific powers to one governmental branch while prohibiting another branch from exercising that same power. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Judicial Powers.

A legislative body is not inhibited from providing that a sentence for an offense committed while at liberty on parole shall run consecutively with the unexpired portion of an original or prior term and such an enactment is not in conflict with the inherent judicial power to impose consecutive or concurrent sentences. State v. Fazzano, 96 R.I. 472 , 194 A.2d 680, 1963 R.I. LEXIS 114 (1963).

Proposed legislation transferring full prosecutorial authority to a special prosecutor appointed by a member of the judiciary not only compromises the independence of the judiciary but also transfers nonjudicial powers to the judicial branch. The proposed legislation imposes administrative duties on the chief justice that include the appointment and supervision of a special prosecutor. It is our belief that the chief justice’s participation in this process effectively eliminates the chief justice from participating in appeals involving a special prosecutor. The chief justice is instead compelled to serve solely in an administrative capacity. The chief justice’s exercise of judicial power can be frustrated by the legislative imposition of these administrative tasks. In re House of Representatives, 575 A.2d 176, 1990 R.I. LEXIS 187 (R.I. 1990).

Statutes authorizing the appointment by the superior court of the director of the department of business regulation as the receiver for any financial institution subject to title 19 of the General Laws do not violate the procedural due process requirements of the state and federal constitutions, nor do they violate the distribution-of-powers requirement. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Because the question of whether or not the risk of re-offense of an individual sex offender was left open to judicial determination on the basis of the proof offered by the alleged offender and/or the state, the legislatively mandated presumption was not permissibly “conclusive,” but was rebuttable, and R.I. Gen. Laws § 11-37.1-15 did not violate the separation of powers clause. State v. Germane, 971 A.2d 555, 2009 R.I. LEXIS 68 (R.I. 2009).

— Usurpation.

P.L. 1935, ch. 2190 [§ 11-27-1 et seq.] does not violate this article by usurpation by the legislature of judicial power, even though the right to regulate and control the practice of law is a prerogative of the judicial power, since the statute was passed to aid the judicial power to protect the public and does not grant any right to practice law. Creditors' Serv. Corp. v. Cummings, 57 R.I. 291 , 190 A. 2, 1937 R.I. LEXIS 101 (1937).

The Professional Service Corporation Act (§§ 7-5.1-1 to 7-5.1-12 ) does not violate the separation of powers guaranteed by this article nor interfere with the inherent powers of the supreme court relating to the practice of law. In re Rhode Island Bar Ass'n, 106 R.I. 752 , 263 A.2d 692, 1970 R.I. LEXIS 985 (1970).

Former § 22-4-3 exempting members of the general assembly from process of the courts during the legislative session is an unconstitutional legislative encroachment on the powers of the judicial branch. Lemoine v. Martineau, 115 R.I. 233 , 342 A.2d 616, 1975 R.I. LEXIS 1146 (1975).

Superior court erred in granting a city’s cross-motion for summary judgment in an action by a retired firefighter and two retired police officers (jointly, the retirees) to enforce the 2004 consent judgments and hold the city in contempt of those judgments; to the extent that the city’s 2012 pension ordinance purported to nullify the 2004 consent judgments by suspending the cost-of-living adjustment, it violated separation-of-powers principles embodied in the state constitution, and, although the city had a legitimate interest in its own fiscal health, the pension ordinance was “unnecessary” to achieving that interest since interfering with judicial power was not a “necessary” exercise of authority. Quattrucci v. Lombardi, 232 A.3d 1062, 2020 R.I. LEXIS 58 (R.I. 2020).

Legislative Powers.

A clause in an act which purported to make its coming into force dependent upon the vote of the people would be unconstitutional. State v. Copeland, 3 R.I. 33 , 1854 R.I. LEXIS 2 (1854).

The provisions of the Firearms Act, §§ 11-47-1 to 11-47-56 are not an unconstitutional delegation of legislative authority because the determination of who may be licensed under the procedures and primary standards of the act is a fact-finding process not within the legislative function. State v. Storms, 112 R.I. 121 , 308 A.2d 463, 1973 R.I. LEXIS 962 (1973).

Former §§ 37-14-1 — 37-14-22, establishing the Public Buildings Authority, did not violate the constitution on the ground of unlawful delegation of legislative authority because the powers conferred are well defined and limited and the purposes of the statute are clear. Opinion to Governor, 112 R.I. 139 , 308 A.2d 802, 1973 R.I. LEXIS 965 (1973).

The Privileged Communications Act violates this article as an unconstitutional intrusion upon the function of the judiciary. State v. Almonte, 644 A.2d 295, 1994 R.I. LEXIS 228 (R.I. 1994).

Portions of city ordinances which purported to vacate and nullify a consent judgment, or to accomplish the same result indirectly by retroactive application, violated the doctrine of the separation of powers and were invalid and without force and effect. City of Providence v. Employee Retirement Bd., 749 A.2d 1088, 2000 R.I. LEXIS 81 (R.I. 2000).

Rhode Island Constitution imposes an affirmative duty upon the General Assembly to promote public schools, and it is not the supreme court’s function, however, to explore hypothetical scenarios beyond the facts that are currently before it on review; the separation of powers amendments did not impair the General Assembly’s broad discretion in adopting all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education. Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 2014 R.I. LEXIS 52 (R.I. 2014).

Complaint was more appropriately addressed to the General Assembly because the claims represented a request for the same impermissible goal: imposing the supreme court’s judgment over that of the Legislature in order to determine whether a particular policy benefited public education; the supreme court declined to interfere with the General Assembly’s prerogative to fashion the policies that it deems most appropriate for the establishment and maintenance of the State’s public schools. Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 2014 R.I. LEXIS 52 (R.I. 2014).

City’s pension ordinance had no force or effect as to retirees who were parties to cases in which a settlement agreement was reached and a consent judgment entered because a final judgment was the ultimate exercise of judicial power, and the city council’s attempt to override those final judgments was a violation of the doctrine of the separation of powers. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

— Delegation.

The Port Authority Act did not constitute an unlawful delegation of legislative authority, for the general assembly could delegate legislative powers to an administrative agency provided the powers were transferred in expressly defined channels. Advisory Opinion to the Governor, 113 R.I. 586 , 324 A.2d 641, 1974 R.I. LEXIS 1213 (1974).

The granting to the Rhode Island Ethics Commission, pursuant to Article 3, Section 8 of the Rhode Island Constitution, the power to enact substantive ethics laws independent of the legislature does not constitute a violation of the doctrine of separation of powers. This ethics amendment merely shifted the legislative power regarding ethics away from the General Assembly; it did not, however, divest the General Assembly of its “whole” legislative power or the power to enact ethics laws that are not in conflict with those enacted by the commission, nor has the commission assumed powers that are central or essential to the operation of the General Assembly. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

— — Businesses and Professions.

The power to enact law regulating trade or profession cannot be delegated by legislature, but it may delegate the administration to ministerial and administrative officers or bodies. State v. Conragan, 58 R.I. 313 , 192 A. 752, 1937 R.I. LEXIS 45 (1937).

Prosecution for operating a school of hairdressing and cosmetic therapy not approved by the department of public health was not violative of this article as delegating legislative and judicial power to department, since it was vested only with power to make necessary determinations of fact in administration and standard penalty was set. State v. Conragan, 58 R.I. 313 , 192 A. 752, 1937 R.I. LEXIS 45 (1937).

Action of bureau of police and fire under P.L. 1926, ch. 791 [§§ 5-22-5 to 5-22-12 ] in refusing to grant license to show movie because held against public welfare and morals was not unconstitutional under this article as a delegation of legislative powers. Thayer Amusement Corp. v. Moulton, 63 R.I. 182 , 7 A.2d 682, 1939 R.I. LEXIS 74 (1939).

The Fair Trade Act (former §§ 6-12-1 to 6-12-8) was not an unlawful delegation of the legislative power in violation of this article as applied to a reseller who purchases with actual notice of a stipulated minimum resale price imposed pursuant to such act and was an unlawful delegation of that power in violation of this provision as applied to a reseller who purchases without actual notice of such stipulated minimum resale price. United States Time Corp. v. Ann & Hope Factory Outlet, 98 R.I. 503 , 205 A.2d 125, 1964 R.I. LEXIS 203 (1964).

— — Eminent Domain.

This provision is not violated by § 37-6-13 with the respect to taking of property for highway purposes. Pascale v. Capaldi, 95 R.I. 38 , 182 A.2d 435, 1962 R.I. LEXIS 121 (1962).

— — Intoxicating Liquors.

Rule of liquor control administrator under power vested in him to fix wholesale prices of liquor was not unconstitutional on the ground that it was an unlawful exercise of legislative power, since the legislature established the standard, to wit “cost plus percentage markup basis.” Nocera Bros. Liquor Mart v. Liquor Control Hearing Bd., 81 R.I. 186 , 100 A.2d 652, 1953 R.I. LEXIS 34 (1953).

— — Paroles.

As a part of its power the legislature can grant to the parole board the exclusive right to determine if a parole permit shall be revoked and any such revocation by the parole board made within the limits of the legislative authority given to it cannot be attacked. State v. Fazzano, 96 R.I. 472 , 194 A.2d 680, 1963 R.I. LEXIS 114 (1963).

— — Slum Clearances.

P.L. 1950, ch. 2574, §§ 48 and 81 [§ 45-32-5 ] did not violate this article by improper delegation of legislative authority to slum clearance and redevelopment agency in that insufficient standards were set out under which agency is to determine fair value of parts of land sold or leased, since said acts by the agency were administrative rather than legislative. Ajootian v. Providence Redevelopment Agency, 80 R.I. 73 , 91 A.2d 21, 1952 R.I. LEXIS 11 (1952).

— — Taxation.

The provisions of P.L. 1912, ch. 769, § 11(2) [G.L. 1938, ch. 37, § 3(2)] which authorized the board of tax commissioners, in the case of corporations doing business within and without the state and deriving their profits from the sale or use of tangible property in part within the state, to apportion to this state such a proportion of the value of the property as the fair cash value of their real estate and tangible personal property in this state bore to the fair cash value of their entire real estate and tangible personal property then used in their business, did not constitute a delegation of legislative authority to board of tax commissioners. Mexican Petroleum Corp. v. Bliss, 43 R.I. 243 , 110 A. 867, 1920 R.I. LEXIS 65 (1920).

— — Workers’ Compensation.

Provision in P.L. 1912, ch. 831, Art. IV [§ 28-29-22 ] that compensation scheme becomes operative only at employer’s option was not unconstitutional delegation of legislative power under this article, since the employee was not bound by employer’s choice but was free to make his own choice. Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916).

Article VI Of the Legislative Power

§ 1. Constitution supreme law of the state.

This Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void. The general assembly shall pass all laws necessary to carry this Constitution into effect.

NOTES TO DECISIONS

Constitutionality of Statutes.

Although supreme court will not generally pass on unconstitutionality unless party specifies particular portion of the Constitution claimed violated by the act, it would pass on an act reducing terms of justices and clerks of district courts, even though the petition failed to so designate, in light of public importance. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

This provision requires the performance of a continuing obligation by the governor and the general assembly and the effective performance of this obligation requires from time to time assistance from the judges of the supreme court, upon questions of law, as best provided through the device of the advisory opinion ( R.I. Const., Art. 10, Sec. 3 ). Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

A challenge to the constitutionality of legislation must be based on a specific provision or provisions of an article, rather than an entire article, since many provisions may be irrelevant. State v. Storms, 112 R.I. 121 , 308 A.2d 463, 1973 R.I. LEXIS 962 (1973).

Powers of Legislature.

The Constitution defines the powers given to the executive and judicial departments of the government, and all other powers are given to the legislative department unless prohibited in the Constitution. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

Legislatures are the creatures of the Constitutions, owing their existence and powers to them, and therefore their acts must conform with it or be void. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

The last sentence in this section was intended to cover the whole period during which the Constitution shall be in operation and to make it the duty of the general assembly not only to refrain from passing laws contrary to the Constitution, but also to pass all laws necessary to make effective all provisions of the Constitution. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

The general assembly is vested with all legislative power except so far as expressly limited by the Constitution of the state. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

One legislature is competent to repeal or modify any act of a former legislature as the first cannot abridge the power of the second. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Although the office of the clerk of the superior court for the counties of Providence and Bristol is clearly of that class to which the governor’s constitutional authority relates, he is precluded from making an appointment of the temporary nature in the instant case wherein the clerk was a holdover for the reason that the legislature had provided for another custodian of such power, namely, the presiding justice. Casey v. Willey, 89 R.I. 87 , 151 A.2d 369, 1959 R.I. LEXIS 52 (1959).

The people did not intend by the adoption of art. 1, § 3 (now see R.I. Const., Art. 1, Sec. 3 ) of the constitution to prohibit to the legislature the authority to exempt religious societies, organizations and their property from taxation as had been its common practice. General Fin. Corp. v. Archetto, 93 R.I. 392 , 176 A.2d 73, 1961 R.I. LEXIS 123 (1961).

There is no inconsistency between the act establishing the Blackstone Valley Sewer District and this section of the constitution as the general assembly has plenary power to subject municipalities to its direction and control except where the home rule amendment expressly forbids. Central Falls v. Halloran, 94 R.I. 189 , 179 A.2d 570, 1962 R.I. LEXIS 58 (1962).

The Port Authority Act did not constitute an unlawful delegation of legislative authority, for the general assembly could delegate legislative powers to an administrative agency provided the powers were transferred in expressly defined channels. Advisory Opinion to the Governor, 113 R.I. 586 , 324 A.2d 641, 1974 R.I. LEXIS 1213 (1974).

This provision confers upon the General Assembly power that is broad and plenary, except insofar as certain actions may be prohibited in express terms by the state or federal constitutions. Therefore, in the absence of any constitutional limitation, the General Assembly has the legislative power to enact substantive ethics laws. In re Advisory Opinion to Governor, 612 A.2d 1, 1992 R.I. LEXIS 138 (R.I. 1992).

This section specifically reaffirms the General Assembly’s unfettered right and power to continue to exercise the powers it had “heretofore exercised, unless prohibited in this Constitution.” In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

— Calling Constitutional Convention.

The general assembly has the power to pass a law calling a constitutional convention without obtaining the approval of the people, and whether the exercise of this power at any particular time is advisable or proper is for the general assembly alone to decide. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

The legislature was entitled to call a convention to revise or amend the state Constitution, even though there was no express provision for calling of convention, since the power to call a convention is implied by virtue of this section, and therefore opinion of In re Constitutional Convention , 14 R.I. 649 holding adversely is not approved. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Legislature, in act providing for a convention to be called to revise or amend the state Constitution, must not delegate powers to governor, who can act only under legislative instructions but can fix date of convention within a period fixed by the legislature. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Legislature, in act providing for convention to be called to revise or amend the state Constitution, can provide that a vote of the majority of the electors voting shall be sufficient for adoption of proposed changes or can submit such issue to the people to determine vote necessary. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Legislature, in act providing for convention to revise or amend state Constitution, can make provision for final count of the votes on final ratification and adoption by the people and officially reporting the result so that it may be duly registered and recorded. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Legislature, in act providing for a convention to be called to revise or amend the state Constitution, cannot provide that the general officers of the state shall be ex officio members, since delegates must be directly elected by the people, although it can provide that such an officer start convention and temporarily preside until president is elected, and such officers may be invited to attend by convention. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Legislature, in act providing for convention to revise or amend the state Constitution, if called without vote of people, cannot set up organization and conduct of convention, but if people are allowed to vote with information as to the scope and proposed conduct of it, then it will be conducted as so set up, since the people themselves must control the convention. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

— Delegation of Power.

Previous practice of general assembly to grant petitions for new trial, both before and after adoption of the Constitution, was not sufficient to vest authority in the legislature, by virtue of this section, to reverse a judgment of the Supreme Court on the merits, because the legislature did not, either before or after adoption of the Constitution, attempt to render final judgments in cases from the Supreme Court. In re Opinion of the Supreme Court, 3 R.I. 299 , 1854 R.I. LEXIS 14 (1854).

This section, aside from the practice of the legislature before and after the Constitution was adopted, did not confer judicial power, since the powers referred to by this section are the legislative powers of the general assembly. In re Opinion of the Supreme Court, 3 R.I. 299 , 1854 R.I. LEXIS 14 (1854).

This section did not vest judicial power in the general assembly to open a judgment in a garnishment proceeding and permit the garnishee to amend its affidavit. G. & D. Taylor & Co. v. Place, 4 R.I. 324 , 1856 R.I. LEXIS 32 (1856).

This provision does not authorize the general assembly itself to exercise judicial power, but it does not bar general assembly from conferring judicial power previously exercised by it upon the judicial department of the state. Gunn v. Union R.R., 27 R.I. 432 , 63 A. 239, 1906 R.I. LEXIS 24 (1906).

Provision in P.L. 1912, ch. 831, Art. IV [§ 28-29-22 ] that compensation scheme becomes operative only at employer’s option, was not unconstitutional delegation of legislative power under this section, since the employee was not bound by employer’s choice, but was free to make his own choice. Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916).

Legislature could withdraw right of city through its mayor and aldermen to appoint police and fire commissioners and a public service engineer and could provide for a state-appointed board of public safety to serve these functions, since cities and towns have no inherent right of local government. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

Provision of P.L. 1949, ch. 2373 [§ 3-7-5 ], which provided for issuance of class A liquor license to holders of class E and limited class A licenses, did not violate this section, since provision was a reasonable classification within the police power of state over the liquor traffic. Romano v. Daneker, 77 R.I. 61 , 73 A.2d 236, 1950 R.I. LEXIS 38 (1950).

Rule of liquor control administrator under power vested in him to fix wholesale prices of liquor was not unconstitutional on the ground that it was an unlawful exercise of legislative power, since the legislature in granting the authority established the standard, to wit “cost plus percentage markup basis.” Nocera Bros. Liquor Mart v. Liquor Control Hearing Bd., 81 R.I. 186 , 100 A.2d 652, 1953 R.I. LEXIS 34 (1953).

The Fair Trade Act (former §§ 6-12-1 to 6-12-8) was not an unlawful delegation of the legislative power in violation of this article as applied to a reseller who purchases with actual notice of a stipulated minimum resale price imposed pursuant to such act and was an unlawful delegation of that power in violation of this provision as applied to a reseller who purchases without actual notice of such stipulated minimum resale price. United States Time Corp. v. Ann & Hope Factory Outlet, 98 R.I. 503 , 205 A.2d 125, 1964 R.I. LEXIS 203 (1964).

Sections 37-14-1 to 37-14-24 establishing the Public Buildings Authority, did not violate the constitution on the ground of unlawful delegation of legislative authority because the powers conferred are well defined and limited and the purposes of the statute are clear. Opinion to Governor, 112 R.I. 139 , 308 A.2d 802, 1973 R.I. LEXIS 965 (1973).

Section 42-55-1 is not unconstitutional on the ground of unlawful delegation of legislative power because the statute’s purposes and the powers of the corporation are expressly stated. Opinion to Governor, 112 R.I. 151 , 308 A.2d 809, 1973 R.I. LEXIS 966 (1973).

Authority of director of department of natural resources to deny approval of alteration of fresh water wetlands if not in the best public interest is not a violation of the delegation of powers doctrine, since the statute granting this authority adequately limits the discretion of the director. J. M. Mills, Inc. v. Murphy, 116 R.I. 54 , 352 A.2d 661, 1976 R.I. LEXIS 1244 (1976).

The nondelegation doctrine is not to be construed as prohibiting entirely the delegation of legislative power rather this doctrine prohibits only unreasonable delegations of legislative power. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

When the delegation of legislative power to an administrative agent is accompanied by sufficient standards or safeguards to prescribe the exercise of that power, the delegation will be deemed reasonable and lawful. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

Whereas the legislature may not delegate the authority to administer a complete law, it may constitutionally confer discretion to an administrative agent to determine those facts that will accomplish the ends contemplated in the original legislation. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

The delegation of legislative functions is not a per se unconstitutional action. Instead, it is the conditions of the delegation — the specificity of the functions delegated, the standards accompanying the delegation, and the safeguards against administrative abuse — that must be examined in determining the constitutionality of a delegation of power. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

Statute establishing the Coastal Resources Management Council and giving it authority to regulate the use of land use near coastal waters, §§ 46-23-1 to 46-23-20 , constitutes a permissible delegation of legislative authority. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

Section 5-21-1 , which permits towns to license auto-salvage operations, is an unconstitutional delegation of legislative power in that it allows the town council unlimited discretion to renew or revoke licenses. Metals Recycling Co. v. Maccarone, 527 A.2d 1127, 1987 R.I. LEXIS 522 (R.I. 1987).

Section 5-21-2 , authorizing licensing authorities in cities and towns to grant junkyard licenses, is not unconstitutional as an improper delegation of legislative power. Bourque v. Dettore, 589 A.2d 815, 1991 R.I. LEXIS 55 (R.I. 1991).

Article VI, sections 1 and 2, of the Rhode Island Constitution forbid the unconditional delegation of legislative power. East Greenwich v. O'Neil, 617 A.2d 104, 1992 R.I. LEXIS 209 (R.I. 1992).

Section 39-1-30 is a constitutional delegation of the Legislature’s power to the public utilities commission to review actions of zoning boards and municipal inspections and those involving regulations and ordinances, given the specificity of the functions delegated, the accompanying standards of § 39-1-30 , and the administrative safeguards of chapter 1 of title 39. East Greenwich v. O'Neil, 617 A.2d 104, 1992 R.I. LEXIS 209 (R.I. 1992).

1999 Public Laws ch. 318, § 1, which authorized town councils to include charges for sewer-related debt service and capital costs on sewer bills, was not an unconstitutional delegation of power to town councils by the General Assembly, as town council members remained accountable to the towns’ voters. Newport Court Club Assocs. v. Town Council, 800 A.2d 405, 2002 R.I. LEXIS 168 (R.I. 2002).

— Officers Chosen by Legislature.

State officers, including district court judges and clerks, chosen by the legislature or appointed by their authorization have no contractual right or property interest in their offices, and, in absence of any constitutional right, have no vested interest of any kind in the office or its future emoluments. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Term of state officers, including judges and clerks of district courts, chosen or appointed by or under the authority of the legislature may be shortened or ended by the legislature with or without abolition of the office and without fault, and salary may be reduced or increased. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

— Plenary Powers.

The general assembly under its plenary powers, and particularly under the reservations of this section, may validate ultra vires resolutions of a town. Capone v. Nunes, 85 R.I. 392 , 132 A.2d 80, 1957 R.I. LEXIS 39 (1957).

Since the time of the charter of King Charles II the power of the Rhode Island General Assembly has been plenary. This plenary power still exists save insofar as it may be prohibited in express terms by the state constitution or limited by the federal constitution. Forte Bros. v. Department of Transp., 541 A.2d 1194, 1988 R.I. LEXIS 73 (R.I. 1988).

Vagueness.

R.I. Gen. Laws § 45-9-1 et seq. (the act), allowing the Director of the Rhode Island Department of Revenue to appoint a receiver to conduct a city’s affairs in a fiscal emergency, was not unconstitutionally vague under the nondelegation doctrine derived from R.I. Const. Art. VI, §§ 1 and 2 because (1) the grant of authority to the director of the Department of Revenue was amply confined and guided by intelligible standards and principles, as R.I. Gen. Laws § 45-9-1 effectively specified the policy by which the receiver, or any official tasked by the director of the Department of Revenue with administering the act, were directed and constrained, and (2) the deliberate triggering mechanisms of the act that provided for “varying levels of support and control depending on the circumstance” were intelligible and demonstrated an architecture of staged delegations of power constructed to respond to the requisite degree of fiscal crisis. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

§ 2. Power vested in general assembly — Concurrence of houses required to enact laws — Style of laws.

The legislative power, under this Constitution, shall be vested in two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly. The concurrence of the two houses shall be necessary to the enactment of laws. The style of their laws shall be, It is enacted by the general assembly as follows:

Cross References.

Veto power of governor, R.I. Const., Art. IX, § 14 .

Comparative Provisions.

Powers in legislature:

Conn. 1965 Const., art. Third, § 1.

Mass. Const. Pt. 2, C. 1, § 1, Art. 1.

NOTES TO DECISIONS

Delegation of Powers.

Legislative power, if confined in expressly defined channels, may be vested by the general assembly in other bodies which it authorizes to act as its agents in carrying out its duties. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958).

An act which authorized the director of administration to acquire property for recreational and conservation purposes, to borrow not exceeding $5,000,000, and to exercise the power of eminent domain to carry out the purposes of the act is not violative of this section as an unconstitutional delegation of legislative power. Chartier Real Estate Co. v. Chafee, 101 R.I. 544 , 225 A.2d 766, 1967 R.I. LEXIS 799 (1967).

Former §§ 37-14-1 to 37-14-24 establishing the Public Buildings Authority, did not violate the constitution on the ground of unlawful delegation of legislative authority because the powers conferred are well defined and limited and the purposes of the statute are clear. Opinion to Governor, 112 R.I. 139 , 308 A.2d 802, 1973 R.I. LEXIS 965 (1973).

Section 42-55-1 is not unconstitutional on the ground of unlawful delegation of legislative power because the statute’s purposes and the powers of the corporation are expressly stated. Opinion to Governor, 112 R.I. 151 , 308 A.2d 809, 1973 R.I. LEXIS 966 (1973).

Sections 16-21.1-1 16-21.1-3 concerning busing of pupils beyond city and town limits do not violate this section since the legislature has recited the relevant policy considerations and the statute provides adequate safeguards and standards for implementation. Members of Jamestown Sch. Comm. v. Schmidt, 122 R.I. 185 , 405 A.2d 16, 1979 R.I. LEXIS 2144 (1979).

The nondelegation doctrine is not to be construed as prohibiting entirely the delegation of legislative power; rather this doctrine prohibits only unreasonable delegations of legislative power. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

When the delegation of legislative power to an administrative agent is accompanied by sufficient standards or safeguards to prescribe the exercise of that power, the delegation will be deemed reasonable and lawful. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

Whereas the legislature may not delegate the authority to administer a complete law, it may constitutionally confer discretion to an administrative agent to determine those facts that will accomplish the ends contemplated in the original legislation. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

The purpose of the nondelegation doctrine is to protect the citizens against arbitrary and discriminatory action by public officials. Davis v. Wood, 427 A.2d 332, 1981 R.I. LEXIS 1059 (R.I. 1981).

As long as the legislature that creates the agency demonstrates standards or principles to confine and guide the agency’s power, the state supreme court will sustain the delegation. Davis v. Wood, 427 A.2d 332, 1981 R.I. LEXIS 1059 (R.I. 1981); State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

Since a legislative body needs to employ an administrative agent to effectuate the beneficial purposes of legislation, the delegation will be upheld if the statute declares a legislative purpose, establishes a primary standard for carrying out the use, or lays out an intelligent principle to which an administrative officer or body must conform. Davis v. Wood, 427 A.2d 332, 1981 R.I. LEXIS 1059 (R.I. 1981); State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

The nondelegation doctrine is not to be construed as prohibiting entirely the delegation of legislative power; rather this doctrine prohibits only unreasonable delegations of legislative power. State v. Peloquin, 427 A.2d 1327, 1981 R.I. LEXIS 1099 (R.I. 1981).

The delegation of legislative functions is not a per se unconstitutional action. Instead, it is the conditions of the delegation — the specificity of the functions delegated, the standards accompanying the delegation, and the safeguards against administrative abuse — that must be examined in determining the constitutionality of a delegation of power. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

Section 5-21-1 , which permits towns to license auto-salvage operations, is an unconstitutional delegation of legislative power in that it allows the town council unlimited discretion to renew or revoke licenses. Metals Recycling Co. v. Maccarone, 527 A.2d 1127, 1987 R.I. LEXIS 522 (R.I. 1987).

— Businesses and Professions.

The Fair Trade Act (former §§ 6-12-1 to 6-12-8) was not an unlawful delegation of the legislative power in violation of this article as applied to a reseller who purchases with actual notice of a stipulated minimum resale price imposed pursuant to such act and was an unlawful delegation of that power in violation of this provision as applied to a reseller who purchases without actual notice of such stipulated minimum resale price. United States Time Corp. v. Ann & Hope Factory Outlet, 98 R.I. 503 , 205 A.2d 125, 1964 R.I. LEXIS 203 (1964).

— Cities and Towns.

P.L. 1901, ch. 896, § 3, as amended by P.L. 1901, ch. 897, which permitted town of South Kingstown to reopen channel between Judith Pond and the ocean and to lease same, did not violate this section on the ground that there was a delegation of legislative power, since the legislature can delegate the regulation of the fisheries of the state to any board or body it deems advisable. State v. Nelson, 31 R.I. 264 , 77 A. 170, 1910 R.I. LEXIS 84 (1910).

By article 28 of amendments to the constitution (now see R.I. Const., Art. XIII ), on the authority of which the Pawtucket charter was adopted, the sovereignty of the state in the matter of elections was not surrendered to those cities and towns which adopted a home rule charter nor was the sovereignty of the state with relation to the exercise of the police power transferred to such cities or towns. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

A provision of existing ordinance must yield to a subsequent inconsistent amendment, for to hold otherwise would sanction an unconstitutional interference with the legislative powers conferred upon the general assembly by the constitution and in turn delegated to the city and town councils by the enabling act. Camara v. City of Warwick, 116 R.I. 395 , 358 A.2d 23, 1976 R.I. LEXIS 1287 (1976).

Just as the General Assembly cannot unconditionally delegate any of the legislative power to municipal corporations, so municipal corporations cannot unconditionally delegate their legislative power. DePetrillo v. Coffey, 118 R.I. 519 , 376 A.2d 317, 1977 R.I. LEXIS 1493 (1977).

Section 5-21-2 , authorizing licensing authorities in cities and towns to grant junkyard licenses, is not unconstitutional as an improper delegation of legislative power. Bourque v. Dettore, 589 A.2d 815, 1991 R.I. LEXIS 55 (R.I. 1991).

— Commissions and Boards.

G.L. 1896, ch. 155, § 4 [former § 5-31-2], providing for examination of applicants for dentistry certificate by a board appointed by the governor from graduates in dentistry practicing in the state, did not violate this section on the ground of unlawful delegation of legislative power to the board since no standards were laid down by the legislature, as the method of selection of the board assured an impartial administration of the examination of candidates by experts in the profession, and there was nothing legislative in the functions exercised by the board. State v. Rosenkrans, 30 R.I. 374 , 75 A. 491, 1910 R.I. LEXIS 29 (1910), aff'd, 225 U.S. 698, 32 S. Ct. 840, 56 L. Ed. 1263, 1912 U.S. LEXIS 2124 (1912).

P.L. 1909, ch. 499, which provided for the reparation and construction of a bridge over a river between two towns under a commission, but which did not impose a limit on the cost of construction of the bridge, did not violate this section on the ground that there was an unlawful delegation of legislative power. Blais v. Franklin, 31 R.I. 95 , 77 A. 172, 1910 R.I. LEXIS 85 (1910).

G.L. 1909, ch. 238, §§ 7 and 8 [§§ 32-2-8 and 32-2-9 ], providing for assessment by commissioners against each city and town in a district in proportion to benefits received by city and town from public parks, does not violate this section on the ground that there is a delegation of legislative power, since the commissioners merely act as auditors and exercise arithmetical rather than legislative powers. In re Opinion of Justices, 34 R.I. 191 , 83 A. 3, 1912 R.I. LEXIS 41 (1912).

The provisions of P.L. 1912, ch. 796, § 11(2) [G.L. 1938, ch. 37, § 3(2)] which authorized the board of tax commissioners, in the case of corporations doing business both within and without the state and deriving profits from the sale or use of tangible property in part within the state, to apportion to this state such a proportion of the value of the property as the fair cash value of their real estate and tangible personal property in this state bears to the fair cash value of their entire estate and tangible personal property then used in their business, and in any case to which these proportions are not equitably applicable in such manner as is equitable, do not violate this section as a delegation of legislative power to the board of tax commissioners. Mexican Petroleum Corp. v. Bliss, 43 R.I. 243 , 110 A. 867, 1920 R.I. LEXIS 65 (1920).

Although the provisions of § 42-34-15 may grant legislative power to the Rhode Island Industrial Building Authority, nevertheless such grant is so limited and restricted by the terms of such section that it does not constitute a violation of this section. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958).

The act creating the Blackstone Valley Sewer District does not unlawfully delegate legislative power to the commission since in the execution and administration of the powers and duties conferred upon it the commission has been vested with discretion to act within well-defined limits fiscally and geographically: it is confined to a specifically defined district and it is charged with assessing rates sufficient to effectuate the clearly-expressed legislative objective. Central Falls v. Halloran, 94 R.I. 189 , 179 A.2d 570, 1962 R.I. LEXIS 58 (1962).

This provision is not violated by § 37-6-13 with the respect to taking of property for highway purposes. Pascale v. Capaldi, 95 R.I. 38 , 182 A.2d 435, 1962 R.I. LEXIS 121 (1962).

Section 28-9.1-10 prescribing powers of arbitrators relating to collective bargaining agreements by firemen is not in violation of this section. City of Warwick v. Warwick Regular Firemen's Ass'n, 106 R.I. 109 , 256 A.2d 206, 1969 R.I. LEXIS 600 (1969).

The Port Authority Act did not constitute an unlawful delegation of legislative authority, for the general assembly could delegate legislative power to an administrative agency provided the powers were transferred in expressly defined channels. Advisory Opinion to the Governor, 113 R.I. 586 , 324 A.2d 641, 1974 R.I. LEXIS 1213 (1974).

Authority of director of department of natural resources to deny approval of alteration of fresh water wetlands if not in the best public interest is not a violation of the delegation of powers doctrine, since the statute granting this authority adequately limits the discretion of the director. J. M. Mills, Inc. v. Murphy, 116 R.I. 54 , 352 A.2d 661, 1976 R.I. LEXIS 1244 (1976).

Statute establishing the Coastal Resources Management Council and giving it authority to regulate the use of land use near coastal waters, §§ 46-23-1 to 46-23-20 , constitutes a permissible delegation of legislative authority. Milardo v. Coastal Resources Management Council, 434 A.2d 266, 1981 R.I. LEXIS 1263 (R.I. 1981).

The tax rule governing consolidated tax returns of corporations, Regulation Re: Consolidated Returns VI(b), which articulates a formula for the computation of consolidated net worth, does not exceed the tax administrator’s authority, nor does it violate R.I. Constitution, art. VI, § 2 (legislative power). Great Am. Nursing Ctrs. v. Norberg, 567 A.2d 354, 1989 R.I. LEXIS 168 (R.I. 1989).

Because the delegation of authority to the budget and review commission contains sufficient standards and delineates specific task and objectives in accordance with its legislative purpose, § 45-9-3 does not violate this section. Marran v. Baird, 635 A.2d 1174, 1994 R.I. LEXIS 4 (R.I. 1994).

— Intoxicating Liquors.

Rule of liquor control administrator under power vested in him to fix wholesale prices of liquor was not unconstitutional on the ground that it was an unlawful exercise of legislative power, since the legislature in granting the authority established the standards, to wit “cost plus percentage markup basis.” Nocera Bros. Liquor Mart v. Liquor Control Hearing Bd., 81 R.I. 186 , 100 A.2d 652, 1953 R.I. LEXIS 34 (1953).

— Private Parties.

Statute requiring that every public school district bus children living within its boundaries to any private school within its boundaries is unconstitutional delegation to a private body since it does not provide adequate safeguards or standards to deal with the transportation of students to private schools not in existence at the time of the enactment of the statute. Jennings v. Exeter-West Greenwich Regional Sch. Dist. Comm., 116 R.I. 90 , 352 A.2d 634, 1976 R.I. LEXIS 1247 (1976).

Section 15-5-3 is not in violation of the prohibition against delegation of legislative power to private parties unaccompanied by adequate legislative standards, since the statute simply sets forth as grounds for an absolute divorce the fact that the parties have been living separate and apart for three years, and the fact that the statute requires the Family Court to enter a decree terminating the marriage of the parties once it finds the criteria have been satisfied does not constitute a delegation of the police power. Harwood v. Harwood, 120 R.I. 145 , 385 A.2d 1055, 1978 R.I. LEXIS 645 (1978).

— Workers’ Compensation.

Provision in P.L. 1912, ch. 831, Art. IV [§ 28-29-22 ] that compensation scheme becomes operative only at employer’s option, was not unconstitutional delegation of legislative power under this section, since the employee was not bound by employer’s choice but was free to make his own choice. Sayles v. Foley, 38 R.I. 484 , 96 A. 340, 1916 R.I. LEXIS 7 (1916).

General Powers.

Constitutional Amend., Art. 28 (now see R.I. Const., Art. XIII ) does not diminish the legislative power of the general assembly in matters of statewide application. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

Defendant’s constitutional rights were not violated because the Rhode Island Legislature, by enacting the mandatory sentencing scheme in R.I. Gen. Laws § 11-23-2 , did not usurp the judicial power by depriving the trial justice of his or her sentencing discretion as it was for the Legislature, not the courts, to prescribe the scope of punishments. Sosa v. State, 949 A.2d 1014, 2008 R.I. LEXIS 77 (R.I. 2008).

Powers of Subsequent Legislature.

The legislative powers conferred by this section are conferred anew on each succeeding general assembly and a provision which would provide that a certain bridge should be toll free and so long as the bonds on another bridge were outstanding was invalid as improperly binding future general assemblies. Opinion to Governor, 97 R.I. 200 , 196 A.2d 829, 1964 R.I. LEXIS 62 (1964).

Vagueness.

R.I. Gen. Laws § 45-9-1 et seq. (the act), allowing the Director of the Rhode Island Department of Revenue to appoint a receiver to conduct a city’s affairs in a fiscal emergency, was not unconstitutionally vague under the nondelegation doctrine derived from R.I. Const. Art. VI, §§ 1 and 2 because (1) the grant of authority to the director of the Department of Revenue was amply confined and guided by intelligible standards and principles, as R.I. Gen. Laws § 45-9-1 effectively specified the policy by which the receiver, or any official tasked by the director of the Department of Revenue with administering the act, were directed and constrained, and (2) the deliberate triggering mechanisms of the act that provided for “varying levels of support and control depending on the circumstance” were intelligible and demonstrated an architecture of staged delegations of power constructed to respond to the requisite degree of fiscal crisis. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

Validity Provisions.

The general assembly, in exercise of its plenary legislative powers generally, may validate the resolution of a town. Capone v. Nunes, 85 R.I. 392 , 132 A.2d 80, 1957 R.I. LEXIS 39 (1957).

§ 3. Sessions of general assembly — Compensation of general assembly members and officers.

There shall be a session of the general assembly at Providence commencing on the first Tuesday of January in each year. Commencing in January 1995, senators and representatives shall be compensated at an annual rate of ten thousand dollars ($10,000). Commencing in 1996, the rate of compensation shall be adjusted annually to reflect changes in the cost of living, as determined by the United States government, during a twelve (12) month period ending in the immediately preceding year. Commencing in 2003, the president of the senate and the speaker of the house shall be compensated at an annual rate double that of other senators and representatives.

Senators and representatives shall receive the same health insurance benefits as full-time state employees.

Senators and representatives shall be reimbursed for traveling expenses in going to and from the general assembly at the same mileage paid to state workers as of the 31st day of December in the year preceding each session.

No senator or representative shall be eligible for any pension on account of service in the general assembly after 1994; provided, however, that those senators and representatives first elected before 1994 who elect to receive compensation for legislative service in 1995 and thereafter, at the rate of five dollars for every day of actual attendance and eight cents (.08) per mile for traveling expenses in going to and returning from the general assembly, for a maximum of sixty days in any calendar year, shall be eligible for a pension on account of service in the general assembly after 1994. The amount of such pension shall be based upon the pension program in effect for legislators on January 1, 1994.

The general assembly shall regulate the compensation of the governor and of all other officers, subject to limitations contained in the Constitution.

History of Section.

Proposed Amendments to Article VI, Section 3 of the R.I. Constitution by Joint Resolutions 184 and 193 of 1994 were approved by a majority of the electorate voting in a statewide election on November 8, 1994.

Cross References.

Compensation of officers, §§ 36-6-1 to 36-6-3 .

NOTES TO DECISIONS

Expenses.

The provision permitting senators and representatives to receive eight cents per mile “for traveling expenses in going to and returning from the general assembly,” in view of the contemporaneous and long continued uniform construction to limit mileage to each session and each adjourned session, does not permit payment of mileage for each day of the sixty-day session. In re Opinion to Governor, 35 R.I. 166 , 85 A. 1056, 1913 R.I. LEXIS 16 (1913).

The general assembly may, by way of legislation, allow for reimbursement to legislators for expenses actually incurred in the performance of official duties. In re Advisory Opinion to House of Representatives, 485 A.2d 550, 1984 R.I. LEXIS 635 (R.I. 1984).

Pension Benefits.

Sections 36-8-1(2) , 36-10-1 , 36-10-2 , 36-10-7 , 36-10-9.1 , and 36-10-1 0.1 are not unconstitutional although these provisions allow state legislators to receive pension benefits beyond the daily stipend specified in art. VI, § 3 of the Rhode Island Constitution. Kass v. Retirement Bd. of Employees' Retirement Sys., 567 A.2d 358, 1989 R.I. LEXIS 169 (R.I. 1989).

The initial exclusion of legislators from the state retirement system, their subsequent admission as voluntary, not mandatory, members, and their later eviction, all reflected their special, non-employee, status. Parella v. Retirement Bd. of the R.I. Employees' Retirement Sys., 173 F.3d 46, 1999 U.S. App. LEXIS 7488 (1st Cir. 1999).

§ 4. Restriction on general assembly members’ activities as counsel.

No member of the general assembly shall take any fee, or be of counsel in any case pending before either house of the general assembly, under penalty of forfeiture of seat, upon proof thereof to the satisfaction of the house in which the member sits.

§ 5. Immunities of general assembly members.

The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place, except by the ethics commission as set forth in Article III, Section 8.

History of Section. Amended Nov. 8, 2016.

Compiler’s Notes.

The 2016 amendment, effective January 3, 2017, was proposed by 2016 Joint Resolutions Nos. 329 and 331 and approved at the November 2016 general election by a vote of 319,765 for and 89,593 against.

The 2016 amendment added “except by the ethics commission as set forth in Article III, Section 8” at the end of the second sentence.

Cross References.

Statutory exemptions, § 22-4-2 .

Comparative Provisions.

Immunities:

Conn. 1965 Const., art. Third, § 15.

Mass. Const. Pt. 1, Art. 21.

NOTES TO DECISIONS

In General.

Petitioner’s argument that as a member-elect of the Rhode Island legislature he enjoyed immunity from extradition under this section, even if correct, was meritless in light of the federal supremacy clause, U.S. Const., Art. VI, Cl. 2, the effect of which is to give supremacy to the requirement of U.S. Const., Art. IV, § 2 that extradition demands be honored. Bailey v. Laurie, 118 R.I. 184 , 373 A.2d 482, 1977 R.I. LEXIS 1444 (1977).

Exemption From Process.

A statute exempting legislators from process of the courts during the legislative session is beyond the scope of this section. Lemoine v. Martineau, 115 R.I. 233 , 342 A.2d 616, 1975 R.I. LEXIS 1146 (1975).

Speech in Debate Exemption.

Excluded testimony of legislators concerning the actions and motivations of the legislators and the general assembly in proposing and passing a voter reapportionment plan was within the privilege from testifying under the Rhode Island Constitution’s speech in debate clause, and the fact that some of the meetings of legislators took place outside the State House and were not formal committee meetings did not preclude application of the privilege. Holmes v. Farmer, 475 A.2d 976, 1984 R.I. LEXIS 489 (R.I. 1984).

City council member’s deposition was properly barred on the basis of legislative immunity because the information sought from the member came to the member by virtue of the member’s office and formed part of the consideration and approval of the ordinances in question. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

In a suit against a city, claims against non-city defendants were properly dismissed based on legislative immunity because the claims arose due to those defendants’ participation in the legislative process. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 2019 R.I. LEXIS 80 (R.I.), cert. denied, 140 S. Ct. 652, 205 L. Ed. 2d 386, 2019 U.S. LEXIS 7455 (2019).

§ 6. Election and qualification of general assembly members — Quorum and organization of houses.

Each house shall be the judge of the elections and qualifications of its members; and a majority shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner, and under such penalties, as may be prescribed by such house or by law. The organization of the two houses may be regulated by law, subject to the limitations contained in this Constitution.

Cross References.

Organization of general assembly, § 22-3-1 et seq.

NOTES TO DECISIONS

Elections and Qualifications of Members.

While each house of the general assembly constitutionally is judge of the elections and qualifications of its members after election, the judiciary has the power to mandate a town council to hold elections in ways, means, and at times prescribed by statute for the election of general assembly members. State v. Town Council of South Kingstown, 18 R.I. 258 , 27 A. 599, 1893 R.I. LEXIS 59 (1893).

The provision is that each house shall be the judge, not a judge or one of the judges, of such elections and qualifications, and it logically follows that each house is the sole judge thereof. Corbett v. Naylor, 25 R.I. 520 , 57 A. 303, 1904 R.I. LEXIS 133 (1904). But see McGann v. Bd. of Elections, 85 R.I. 223 , 129 A.2d 341, 1957 R.I. LEXIS 140 (1957).

This section did not deprive the Supreme Court of jurisdiction to consider on certiorari a question raised before the board of elections as to the validity of certain votes. McGann v. Bd. of Elections, 85 R.I. 223 , 129 A.2d 341, 1957 R.I. LEXIS 140 (1957).

Since each member of house of representatives is entitled to the standing which his membership bears to the whole, a plan of apportionment by having members vote on a fractional or multiple basis in ratio to population would violate the state constitution. Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

This section grants to each house full jurisdiction over the elections and qualifications of members-elect as well as members. Bailey v. Burns, 118 R.I. 428 , 375 A.2d 203, 1977 R.I. LEXIS 1480 (1977).

This section did not deprive the Supreme Court of jurisdiction to decide the question of whether the oath of office should be administered to a duly elected candidate for representative who had been convicted of an infamous crime. Bailey v. Burns, 118 R.I. 428 , 375 A.2d 203, 1977 R.I. LEXIS 1480 (1977).

Quorum.

For most purposes a majority of each house of the general assembly shall constitute a quorum, but the rule does not apply to bills appropriating public money or property for private or local purposes, since in such a case the assent of two-thirds of the members elected is required under R.I. Const., Art. VI Sec. 11 . In re Opinion of Justices, 45 R.I. 289 , 120 A. 868, 1923 R.I. LEXIS 42 (1923).

The house under the Constitution of this state means a majority of the house, and generally no business of any kind can legally be performed by any lesser number except to adjourn or compel the attendance of absent members. To Certain Members of House of Representatives in Gen. Assembly, 58 R.I. 51 , 191 A. 269, 1937 R.I. LEXIS 14 (1937).

§ 7. Rules of houses — Contempt.

Each house may determine its rules of proceeding, punish contempts, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member; but not a second time for the same cause.

§ 8. House journals.

Each house shall keep a journal of its proceedings. The yeas and nays of the members of either house shall, at the desire of one-fifth of those present, be entered on the journal.

NOTES TO DECISIONS

Journal.

If a question arises before the court as to the validity of a certain bill, and it is necessary for the court to determine the action of the general assembly, the court will examine the public record of the proceedings of the general assembly found in the respective journals. O'Neil v. Demers, 44 R.I. 504 , 118 A. 677, 1922 R.I. LEXIS 72 (1922).

A court will not generally assume to contradict or impeach the journal of the senate, based upon the charge of fraud or mistake, since the power to determine the correctness of the journal rests solely in the senate, but the court in rendering an advisory opinion will interpret the record contained in the journal in the light of the facts contained therein. In re Opinion of Justices, 45 R.I. 289 , 120 A. 868, 1923 R.I. LEXIS 42 (1923).

Quorum.

The house under the Constitution of this state means a majority of the house, and generally no business of any kind can legally be performed by any lesser number except to adjourn or compel the attendance of absent members. To Certain Members of House of Representatives in Gen. Assembly, 58 R.I. 51 , 191 A. 269, 1937 R.I. LEXIS 14 (1937).

Roll Call.

Supreme court would not render advisory opinion on signed sworn petition of a majority of a house alleging that presiding officer denied rights to function as a house to present request, where they did not formally in meeting assembled vote for such request, since the court assumes the officer when notified of duty will follow mandatory direction of this section and allow roll call on vote for request. To Certain Members of House of Representatives in Gen. Assembly, 58 R.I. 51 , 191 A. 269, 1937 R.I. LEXIS 14 (1937).

This mandatory provision of the Constitution requires a roll call and a recording of the members of the house, when timely and proper request is made, to protect the people by making a permanent public record. To Certain Members of House of Representatives in Gen. Assembly, 58 R.I. 51 , 191 A. 269, 1937 R.I. LEXIS 14 (1937).

§ 9. Adjournment of houses.

Neither house shall, during a session, without the consent of the other, adjourn for more than two days, nor to any other place than that in which it may be sitting.

NOTES TO DECISIONS

Joint Resolution.

The general assembly may adjourn for more than two days only by joint resolution, after both houses are organized and before counting the votes in grand committee, for the purpose of declaring the votes cast for general officers at the preceding April election. In re Legislative Adjournment, 18 R.I. 824 , 27 A. 324, 1893 R.I. LEXIS 31 (1893); In re Opinion to Governor, 35 R.I. 166 , 85 A. 1056, 1913 R.I. LEXIS 16 (1913).

§ 10. Continuation of previous powers. [Repealed.]

History of Section.

The majority of the electorate approved the separation of powers amendment in a statewide referendum on November 2, 2004; and this result was certified by the Board of Elections on November 23, 2004.

§ 11. Vote required to pass local or private appropriations.

The assent of two-thirds of the members elected to each house of the general assembly shall be required to every bill appropriating the public money or property for local or private purposes.

NOTES TO DECISIONS

Corporate Revenue Bonds.

A statute aimed at relieving unemployment by developing diversified industry through creation of a corporation to acquire and lease to private industry facilities obtained with funds derived from sale of its own revenue bonds which in no way are the obligations of the state, may be accomplished by a majority vote of the general assembly members voting thereon and would not require approval by two-thirds of the elected members of each house. Opinion to Governor, 79 R.I. 305 , 88 A.2d 167, 1952 R.I. LEXIS 49 (1952).

Depositors Economic Protection Act.

The Rhode Island Depositors Economic Protection Act of 1991 serves a public purpose, and passage of the act by a simple majority was constitutional. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Easement of Underwater Land.

State holds title to soil under public waters not as proprietor but only in trust for the public to preserve their rights of fishery, navigation and commerce, and therefore the granting of a permit to construct a pier does not violate this section. Nugent ex rel. Collins v. Vallone, 91 R.I. 145 , 161 A.2d 802, 1960 R.I. LEXIS 71 (1960).

Fractional Voting Unconstitutional.

Since each member of the house of representatives is entitled to the standing which his membership bears to the whole, a plan of apportionment by having members vote on a fractional or multiple basis in ratio to population would violate the state constitution. Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

General Appropriations.

General appropriations act, containing separate appropriations for public and private purposes, which secured the consent of the majority of the members of senate, but not the consent of two-thirds, was valid as to the appropriations for public purposes, but was not valid as to the appropriations for private purposes. In re Opinion of Justices, 45 R.I. 289 , 120 A. 868, 1923 R.I. LEXIS 42 (1923).

Insufficient Vote.

Although legislation (83-H-5952) enacted to allow plaintiff to bring suit against the State of Rhode Island for an amount in excess of the limitation on damages set forth in the Governmental Tort Liability Act was valid, since the house vote fell short of the two-thirds required for private appropriations, the amount appropriated under section 4 of the act must be stricken. Kennedy v. State, 654 A.2d 708, 1995 R.I. LEXIS 43 (R.I. 1995).

Invalid Exchange of Land.

The conveyance of a parcel of real estate to a private corporation in exchange for another parcel was governed by this section and, where the journal of each house of the legislature showed that the bill confirming such conveyance was passed by a voice vote without roll call, such conveyance was invalid. State Terminal Corp. v. General Scrap Iron, 107 R.I. 24 , 264 A.2d 334, 1970 R.I. LEXIS 733 (1970).

Issues Foreclosed.

Fact that an act was passed by a duly recorded vote of two-thirds of the members elected to each house of the general assembly does not necessarily remove the possibility of attack on any constitutional ground but it does foreclose such an attack on the ground that it appropriates the public money or property for local or private purposes. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958).

Maintenance of Police Forces.

The maintenance of a state police force is a governmental function that is carried out for the paramount public purpose of providing for the safety of the citizens of this state. Obviously, the members of such a police force must be paid, and benefits incident to employment must be provided, and to suggest that the provisions for such payment and benefits are made for a private purpose is wholly without merit. State v. Rhode Island State Police Lodge No. 25, 544 A.2d 133, 1988 R.I. LEXIS 99 (R.I. 1988).

No Transfer of Property.

A statute containing no conveyance or transfer of any public property was not subject to the requirement of this section. Advisory Opinion to Governor, 110 R.I. 1 , 289 A.2d 430, 1972 R.I. LEXIS 869 (1972).

Port Authority Act.

The public purposes stated in § 2 of the Port Authority Act were not local or private in nature within the scope of this section, thereby permitting the general assembly to approve an appropriation bill submitted to the governor by a simple majority vote. Advisory Opinion to the Governor, 113 R.I. 586 , 324 A.2d 641, 1974 R.I. LEXIS 1213 (1974).

Public Purpose.

A self-serving recitation of a public purpose contained within the legislation is not conclusive on the issue of whether an act serves a public purpose. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Refunds as Private Purpose.

A statute which provides for the repeal of increases in fees for operator’s and chauffeur’s licenses, would become law upon passage by a simple majority of the general assembly. However, those sections of the statute which provided for appropriations from the general treasury to make refunds to those who had paid the higher rate were appropriations not for a public purpose but for a private purpose and under this provision of the constitution would require the assent of two-thirds of the members elected to each house of the general assembly to become law. Opinion to Governor, 92 R.I. 489 , 170 A.2d 284, 1961 R.I. LEXIS 63 (1961).

Severability of Provisions.

A provision allegedly appropriating money for a local purpose without the requisite two-thirds assent of each branch of the general assembly under this section could be stricken from the act and the remaining provisions of the act would be properly executed. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

Street Maintenance.

Act ordering the Director of Transportation to repair and maintain a town street as a state road and as a part of the state highway system did not violate this section, even though the vote of the House of Representatives fell short of two-thirds, since the proposed expenditure was for a public purpose. In re Advisory Opinion to Governor, 510 A.2d 941, 1986 R.I. LEXIS 491 (R.I. 1986).

Suit Against State.

Legislation permitting a highway contractor to bring suit against the state on the basis of disputed claims for unpaid expenses does not violate this section where the authority conferred by the legislation is contingent and where the legislation is not for a local or private purpose. Cardi Corp. v. State, 524 A.2d 1092, 1987 R.I. LEXIS 450 (R.I. 1987).

§ 12. Property valuations for tax assessments.

The general assembly shall, from time to time, provide for making new valuations of property, for the assessment of taxes, in such manner as it may deem best.

NOTES TO DECISIONS

Delegation of Taxing Power.

The provisions of P.L. 1912, ch. 769, § 11(2) [G.L. 1938, ch. 37, § 3(2)], which authorized the board of tax commissioners, in the case of corporations doing business both within and outside the state and deriving their profit from the sale or use of tangible property in part within the state, to apportion to this state such a proportion of the value of the property as the fair cash value of their real estate and tangible personal property in this state bore to the fair cash value of their real estate and tangible personal property then used in their business, and in any case to which these proportions are not equitably applicable, in such proportion as is equitable, did not violate this section as a delegation of taxing power to the board of tax commissioners. Mexican Petroleum Corp. v. Bliss, 43 R.I. 243 , 110 A. 867, 1920 R.I. LEXIS 65 (1920).

The power to tax is vested exclusively in the legislature. That is, the legislature decides what will be taxed, and the property may not be taxed unless the legislature has passed a statute clearly subjecting it to taxation. Inn Group Assoc. v. Booth, 593 A.2d 49, 1991 R.I. LEXIS 122 (R.I. 1991).

Method of Assessment.

The assessor’s use of the cost of reproduction standard was a delegation of authority by the general assembly to the assessors of each municipality in the manner as the legislature deemed best, as authorized by the constitution. Kargman v. Jacobs, 113 R.I. 696 , 325 A.2d 543, 1974 R.I. LEXIS 1225 (1974).

§ 13. Continuance in office until successors qualify.

The general assembly may provide by law for the continuance in office of any officers of election or appointment, until other persons are qualified to take their places.

§ 14. General corporation laws.

The general assembly may provide by general law for the creation and control of corporations; provided, however, that no corporation shall be created with the power to exercise the right of eminent domain, or to acquire franchises in the streets and highways of towns and cities, except by special act of the general assembly upon a petition for the same, the pendency whereof shall be notified as may be required by law.

Cross References.

General corporation laws, § 7-1.1-1 et seq.

NOTES TO DECISIONS

Conflicts With Federal Power.

Division of public utilities was entitled to authorize transfer of motor carrier certificate from resident of state to foreign corporation which had purchased same despite provisions of this section and G.L. 1938, ch. 125, § 3 [§ 39-13-4 , prior to amendment], which prohibited the holding of an intrastate certificate by a corporation not specifically chartered by the Rhode Island general assembly, where interstate commerce commission had approved purchase of interstate and intrastate operating rights and the transfer, as order of interstate commerce commission was paramount to the state statutory and constitutional provisions. New England Greyhound Lines, Inc. v. Powers, 108 F. Supp. 953, 1952 U.S. Dist. LEXIS 1961 (D.R.I. 1952).

Corporations.

A fire district does not fall within the term “corporations” as used in this section. Wood v. Quimby, 20 R.I. 482 , 40 A. 161, 1898 R.I. LEXIS 97 (1898).

P.L. 1914, ch. 896, which provided for elimination and alteration of grade crossings through a commission, did not violate this constitutional provision on the ground that it was creating a corporation with the power to exercise eminent domain, as the commission could perform its tasks without corporate existence and it could not be inferred that the legislature was creating a corporation. In re Pawtucket & Cent. Falls Grade Crossing Comm'n, 36 R.I. 200 , 89 A. 695, 1914 R.I. LEXIS 11 (1914).

— Corporate Charters.

An amendment to a corporate charter could be passed at the same session of the general assembly to which the bill was presented, since the amendment is not considered the creation of a corporation, even though the amendment changed the name of the corporation, authorized larger capital and permitted the corporation to transact business not contemplated by the original charter. Union Co. v. Sprague, 14 R.I. 452 , 1884 R.I. LEXIS 28 (1884).

— Eminent Domain.

Redevelopment agencies created in accordance with P.L. 1946, ch. 1802, as amended [§ 45-31-1 et seq.] are not within the scope of the proviso limiting the granting of eminent domain to private corporations. Opinion to Governor, 76 R.I. 249 , 69 A.2d 531, 1949 R.I. LEXIS 112 (1949).

The intent of this section was to impose more stringent limitations upon the legislature in granting eminent domain to private corporations. Ajootian v. Providence Redevelopment Agency, 80 R.I. 73 , 91 A.2d 21, 1952 R.I. LEXIS 11 (1952).

P.L. 1950, ch. 2574, §§ 48(d) and 73 [former § 45-32-5(d) and §§ 45-32-24 to 45-32-39 ], providing for the exercise of eminent domain for clearance of slums by an agency appointed for that purpose, is for a public use and not a private use, since it is in the interest of public health, safety and welfare. Ajootian v. Providence Redevelopment Agency, 80 R.I. 73 , 91 A.2d 21, 1952 R.I. LEXIS 11 (1952).

— Public Corporations.

The provisions of this section of the Constitution did not apply to public corporations. State v. District of Narragansett, 16 R.I. 424 , 16 A. 901, 1889 R.I. LEXIS 10 (1889).

§ 15. Lotteries.

All lotteries shall be prohibited in the state except lotteries operated by the state and except those previously permitted by the general assembly prior to the adoption of this section, and all shall be subject to the proscription and regulation of the general assembly.

Cross References.

Gambling and lotteries, § 11-19-1 et seq.

Law Reviews.

2004 Survey of Rhode Island Law: Case: Constitutional Law, see 10 Roger Williams U. L. Rev. 843 (2005).

NOTES TO DECISIONS

Criminal Offenses.

Legislation making possession of a lottery slip a crime can be considered an effective implementation of this section. State v. Scotti, 104 R.I. 683 , 248 A.2d 327, 1968 R.I. LEXIS 707 (1968) (decided prior to amendment permitting state-operated lottery).

Elements.

A “lottery” proscribed in either a state constitution or statute is defined as a scheme or a plan having three essential elements: consideration, chance, and prize. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

All three elements (consideration, chance, and prize) must be present before a scheme may be termed a lottery. If one of them is absent, the scheme is not a lottery, regardless of its purpose. If all of the elements are present, the scheme is a lottery, regardless of the purpose of its sponsor. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

A scheme constitutes a lottery when an element of chance dominates the distribution of prizes, even though such a distribution is affected to some degree by the exercise of skill or judgment. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

Legislative Authority.

Exclusive authority over lotteries in Rhode Island is, and has always been, vested in the General Assembly either by royal charter or by constitution. Narragansett Indian Tribe v. State, 667 A.2d 280, 1995 R.I. LEXIS 267 (R.I. 1995).

This section retains and preserves in the General Assembly all powers which the General Assembly previously had exercised, unless otherwise prohibited by a specific constitutional provision. Therefore, authority and power over lotteries remain with the General Assembly. Narragansett Indian Tribe v. State, 667 A.2d 280, 1995 R.I. LEXIS 267 (R.I. 1995).

The Governor did not have the authority to act on behalf of and to bind the state by executing the Tribal-State Compact dated August 29, 1994, between the state of Rhode Island and the Narragansett Indian Tribe which would permit the establishment of Class III gaming on the Narragansett lands. Narragansett Indian Tribe v. State, 667 A.2d 280, 1995 R.I. LEXIS 267 (R.I. 1995).

There is no constitutional inhibition against the delegation of a portion of the legislature’s power to a lottery commission, subject to appropriate guidelines set forth in the enabling legislation. Almond v. Rhode Island Lottery Comm'n, 756 A.2d 186, 2000 R.I. LEXIS 175 (R.I. 2000).

The 1973 amendment to the state constitution placed the regulation of state-run lotteries entirely in the hands of the legislature without giving any role to the governor. Almond v. Rhode Island Lottery Comm'n, 756 A.2d 186, 2000 R.I. LEXIS 175 (R.I. 2000).

Pyramid Scheme.

Pyramid scheme was a lottery in violation of this provision. Roberts v. Communications Inv. Club, 431 A.2d 1206, 1981 R.I. LEXIS 1180 (R.I. 1981).

§ 16. Borrowing power of general assembly.

The general assembly shall have no powers, without the express consent of the people, to incur state debts to an amount exceeding fifty thousand dollars, except in time of war, or in case of insurrection or invasion; nor shall it in any case, without such consent, pledge the faith of the state for the payment of the obligations of others. This section shall not be construed to refer to any money that may be deposited with the state by the government of the United States.

Cross References.

Bonded indebtedness of state, § 35-8-1 et seq.

NOTES TO DECISIONS

In General.

Where an act provides that it shall not take effect unless a majority of the qualified electors voting thereon approve the same, it cannot be successfully attacked on the ground that it pledges the faith of the state for the payment of obligations of others in violation of this provision. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958).

Legislation which gave the right to the Industrial Building Authority to insure the payment of a mortgage loan on a proposed luxury motor hotel, must be construed strictly. Opinion to Governor, 90 R.I. 135 , 155 A.2d 602, 1959 R.I. LEXIS 124 (1959).

Consent of the People.

The “consent of the people” means the consent of the people manifested by the majority of their votes. State v. Kofines, 33 R.I. 211 , 80 A. 432, 1911 R.I. LEXIS 123 (1911).

Court Order.

Although an order setting specific deadlines for remedying unconstitutional prison conditions and warning defendants that lack of funds was no excuse for such conditions was challenged on the grounds that it unconstitutionally invaded the fiscal autonomy of the state and that, under the Constitution and statutes of the state, the Governor was powerless to comply with it, the federal circuit court would not decide the issue since the order carried no sanctions and expressly directed the master to make findings of fact and recommendations to the court regarding defendants’ compliance as he saw fit. Palmigiano v. Garrahy, 599 F.2d 17, 1979 U.S. App. LEXIS 14196 (1st Cir. 1979).

Creation of State Debt.

The general assembly could not at any time, except in time of war or in case of insurrection or invasion, incur state debts to an amount exceeding by more than $50,000 the income of the state for the current year derived from taxes or other sources. In re Incurring of State Debts, 19 R.I. 610 , 37 A. 14, 1896 R.I. LEXIS 118 (1896).

P.L. 1909, ch. 499, providing for the construction of a bridge between two towns and providing that expense of construction should be borne by the two towns involved, did not violate this section, since the act did not create a state debt in any amount, as the payment of the expense was imposed on the towns. Blais v. Franklin, 31 R.I. 95 , 77 A. 172, 1910 R.I. LEXIS 85 (1910).

The pledge or transfer of state property to secure indebtedness incurred by the Rhode Island emergency public works corporation for the improvement of state property created an unconstitutional indebtedness. In re Opinion to Governor, 54 R.I. 45 , 169 A. 748, 1933 R.I. LEXIS 19 (1933).

Debts of Rhode Island emergency public works corporation to the federal government for public works under the National Industrial Recovery Act were not debts of the state under this section if no state property was pledged, particularly since the articles of the corporation declared that it “shall have no power to incur state debts.” In re Opinion to Governor, 54 R.I. 45 , 169 A. 748, 1933 R.I. LEXIS 19 (1933).

The general assembly was competent to purchase voting machines without the express consent of the people, but it had no power to incur a state debt in excess of fifty thousand dollars without such consent. Higgins v. Green, 56 R.I. 330 , 185 A. 686, 1936 R.I. LEXIS 109 (1936).

— Authority of Officers.

An officer of the state could incur a debt for the state only if authorized by law to do so. In re Incurring of State Debts, 19 R.I. 610 , 37 A. 14, 1896 R.I. LEXIS 118 (1896).

Neither the general treasurer nor any other executive officer of the state could overdraw the bank account of the state. In re Incurring of State Debts, 19 R.I. 610 , 37 A. 14, 1896 R.I. LEXIS 118 (1896).

The water resources board has authority to issue bond notes having a value in excess of $50,000 without receiving approval by the electorate as required by this section. In re Advisory Opinion to Governor, 556 A.2d 1000 (R.I. 1989).

— Use of Proceeds.

Proceeds of bond issue authorized by people for erection of a state house could not be used temporarily by the state for other purposes until regular income of the state came in, even if the state legislature authorized such temporary use. In re Statehouse Bonds, 19 R.I. 393 , 33 A. 870 (1896).

Proceeds of bonds for use in erecting buildings for State Normal School and a state armory could not be used by the state for other purposes, merely because legislature incorporated a provision in the act providing for repayment, since provision also had to be incorporated in the proposition submitted to the vote of the people. In re Statehouse Bonds, 19 R.I. 393 , 33 A. 870 (1896).

Permission granted by the people, pursuant to an election for the state to borrow $1,000,000 pursuant to P.L. 1934, ch. 2087, § 3 authorized the borrowing of only $250,000, after state had borrowed $750,000, even though the latter sum had been repaid. In re Opinion to Governor, 62 R.I. 145 , 4 A.2d 369, 1939 R.I. LEXIS 15 (1939).

Debt Construed.

Since revenue from housing and recreational facilities, not otherwise encumbered, is to be available to the legislature for appropriation under former § 16-31-7, such funds could not be used to meet debt service on an existing or future service facility without creating a state debt within the meaning of this section. Opinion to Governor, 94 R.I. 464 , 181 A.2d 618, 1962 R.I. LEXIS 102 (1962).

The board of trustees of state colleges is an agency of the state acting on behalf of the state and, therefore, the debts it contracts are debts of the state within the meaning of this section. Opinion to Governor, 94 R.I. 464 , 181 A.2d 618, 1962 R.I. LEXIS 102 (1962).

The word “debts” as used in this section refers only to principal indebtedness and does not include future, unearned interest on indebtedness. Chartier Real Estate Co. v. Chafee, 101 R.I. 544 , 225 A.2d 766, 1967 R.I. LEXIS 799 (1967).

Bonds and other securities issued by the water resources board are not debts of the state and are not subject to the restrictions of this section. Opinion to Governor, 107 R.I. 651 , 270 A.2d 520, 1970 R.I. LEXIS 820 (1970).

A long-term lease agreement between the state and the Public Buildings Authority, authorized by former §§ 37-14-1 to 37-14-24 did not create a present indebtedness which would violate the debt limitation. Opinion to Governor, 112 R.I. 139 , 308 A.2d 802, 1973 R.I. LEXIS 965 (1973).

Bonds issued by the Rhode Island Depositors Economic Protection Corporation do not constitute state debts and may be issued in an amount in excess of $50,000 without a vote of the people. Kayrouz v. Rhode Island Depositors Econ. Prot. Corp. ex rel. Sundlun (In re Advisory Opinion to Governor), 593 A.2d 943, 1991 R.I. LEXIS 130 (R.I. 1991).

Pledging of State Credit.

Where bond issues, by which various buildings at the University of Rhode Island were constructed are being paid by rentals, but because of differences in costs of constructing the various buildings the rentals vary in different buildings, it would be in violation of this section to consolidate the loan agreements for all the buildings into one so as to make the rentals uniform, since under the provisions of former § 16-31-7 when the debt would be satisfied on any particular building such rentals would be available for appropriation, and, therefore, such consolidation would to that extent constitute a pledging of the state’s credit. Opinion to Governor, 94 R.I. 464 , 181 A.2d 618, 1962 R.I. LEXIS 102 (1962).

A law which required the state to maintain, repair and operate a bridge during the period that revenue bonds, issued for its construction, were outstanding was the incurring of a debt in violation of this section. Opinion to Governor, 97 R.I. 200 , 196 A.2d 829, 1964 R.I. LEXIS 62 (1964); Opinion to Governor, 99 R.I. 351 , 208 A.2d 105, 1965 R.I. LEXIS 445 (1965).

Without the consent of the people, the Rhode Island Turnpike and Bridge Authority cannot make any valid commitments which will obligate the state to an indebtedness in excess of $50,000. Opinion to Governor, 97 R.I. 200 , 196 A.2d 829, 1964 R.I. LEXIS 62 (1964); Opinion to Governor, 99 R.I. 351 , 208 A.2d 105, 1965 R.I. LEXIS 445 (1965).

Requisites of Referendum.

In order to obtain the consent of the people under the provisions of this section, the people must be clearly informed of the nature and extent of the pledge which the general assembly proposes to authorize. Opinion to Governor, 88 R.I. 202 , 145 A.2d 87, 1958 R.I. LEXIS 110 (1958).

A proposition submitted to the voters to authorize the Industrial Building Authority to pledge the credit of the state for an additional $10,000,000 did not sufficiently inform the voters that the proposition was to increase the authority of the Authority to pledge such credit from a limit of $30,000,000 to one of $40,000,000. Opinion to Governor, 100 R.I. 175 , 212 A.2d 64, 1965 R.I. LEXIS 367 (1965).

The submission of a proposition for authority to borrow on the credit of the state must clearly inform the electorate that the credit of the state will be pledged and the extent to which it will be pledged. Opinion to Governor, 101 R.I. 329 , 223 A.2d 76, 1966 R.I. LEXIS 391 (1966).

A proposition submitted to the electorate asking approval of the issuance of bonds and notes up to $5,000,000 for the acquisition and development of land for recreational and conservation purposes is sufficiently definite to comply with this section. Chartier Real Estate Co. v. Chafee, 101 R.I. 544 , 225 A.2d 766, 1967 R.I. LEXIS 799 (1967).

The complexities of public finance and the potential for obfuscation by the government are among the primary reasons behind this section: Accordingly, in drafting referenda, the state must explicitly identify the issuer of the bonds and the purposes for which the bonds will be issued. In re Advisory Opinion to House of Representatives, 599 A.2d 1354, 1991 R.I. LEXIS 160 (R.I. 1991).

Where the language of a referendum did not adequately inform the voters that the state would issue bonds on behalf of the Rhode Island Historical Preservation Commission, the electorate did not give its express consent to issuance of general obligation bonds by the state on behalf of the commission; because the voters never acceded their informed consent for the state to issue the bonds, any subsequent legislation allowing the state to issue bonds on behalf of the commission would have to be submitted to the people. In re Advisory Opinion to House of Representatives, 599 A.2d 1354, 1991 R.I. LEXIS 160 (R.I. 1991).

— Federal Assistance.

A proposition submitted to the voters asking approval of an act providing for the issuance of bonds and notes up to $5,000,000 for the acquisition and development of land for recreational and conservation purposes was not invalid under this section because it failed to disclose that the act also authorized acceptance of assistance and loans from the federal government, any federal loans being included in the $5,000,000 limit. Chartier Real Estate Co. v. Chafee, 101 R.I. 544 , 225 A.2d 766, 1967 R.I. LEXIS 799 (1967).

§ 17. Borrowing in anticipation of receipts.

Notwithstanding the provisions of Section 16 of this article the general assembly may provide by law for the state to borrow in any fiscal year, in anticipation of receipts from taxes, sums of money not exceeding twenty percent of the receipts from taxes during the next prior fiscal year, and, in anticipation of receipts from other sources, additional sums of money, not exceeding ten percent of the receipts from such other sources during the said next prior fiscal year; provided, that the aggregate of all such borrowings shall not exceed a sum equal to thirty percent of the actual receipts from taxes during the said next prior fiscal year. Any money so borrowed in anticipation of such receipts shall be repaid within the fiscal year of the state in which such borrowings take place. No money shall be so borrowed in anticipation of such receipts in any fiscal year until all money so borrowed in all previous fiscal years shall have been repaid.

NOTES TO DECISIONS

In General.

The state investment commission does not have authority to loan funds of the state employees’ retirement system to the state general fund to be repaid in fiscal years subsequent to such borrowing or transfer. In re Advisory Opinion to Senate, 108 R.I. 163 , 273 A.2d 485, 1971 R.I. LEXIS 1240 (1971).

The state may not borrow funds in excess of $50,000 in anticipation of revenues, as provided by this section, to be repaid in subsequent fiscal years. In re Advisory Opinion to Senate, 108 R.I. 163 , 273 A.2d 485, 1971 R.I. LEXIS 1240 (1971).

§ 18. Redevelopment powers.

The clearance, replanning, redevelopment, rehabilitation and improvement of blighted and substandard areas shall be a public use and purpose for which the power of eminent domain may be exercised, tax moneys and other public funds expended and public credit pledged. The general assembly may authorize cities, towns, or local redevelopment agencies to undertake and carry out projects approved by the local legislative body for such uses and purposes including the acquisition in such areas of such properties as the local legislative body may deem necessary or proper to effectuate any of the purposes of this article, although temporarily not required for such purposes, and the sale or other disposition of any such properties to private persons for private uses or to public bodies for public uses.

Cross References.

Redevelopment projects, § 45-32-1 et seq.

NOTES TO DECISIONS

Blighted Area.

It is not necessary that every parcel of real estate acquired be in a blighted condition before the entire area can be condemned. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651 , 254 A.2d 426, 1969 R.I. LEXIS 802 (1969).

Judicial Review.

After thirty-day limitation period provided for by § 45-32-22 has passed, the constitutional challenge under this article, that where building is taken for a public purpose but is not destroyed but just restored and then resold to another private owner, will not be heard. Corrado v. Providence Redevelopment Agency, 105 R.I. 470 , 252 A.2d 920, 1969 R.I. LEXIS 777 (1969), cert. denied, 396 U.S. 1022, 90 S. Ct. 595, 24 L. Ed. 2d 515, 1970 U.S. LEXIS 3402 (1970).

Question whether redevelopment agency has exceeded its delegated authority by an arbitrary, capricious or bad faith taking of private property is a matter properly cognizable by the judicial branch. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651 , 254 A.2d 426, 1969 R.I. LEXIS 802 (1969).

Public Use.

Clearance, replanning, redevelopment, rehabilitation and improvement of an “arrested blighted area” as that term is set forth in § 45-31-8 constitutes a public use and is constitutionally permissible. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651 , 254 A.2d 426, 1969 R.I. LEXIS 802 (1969).

Where city failed to create a planning commission or redevelopment agency and no master plan was generated, city’s taking of plaintiff’s land for resale to a private developer for private profit based only on private consulting firm’s evaluation that this would effectuate revitalization of area did not constitute a proper public use allowing for condemnation under this section. O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

§ 19. Taking of property for highways, streets, places, parks or parkways.

The general assembly may authorize the acquiring or taking in fee by the state, or by any cities or towns, of more land and property than is needed for actual construction in the establishing, laying out, widening, extending or relocating of public highways, streets, places, parks or parkways; provided, however, that the additional land and property so authorized to be acquired or taken shall be no more in extent than would be sufficient to form suitable building sites abutting on such public highway, street, place, park or parkway. After so much of the land and property has been appropriated for such public highway, street, place, park or parkway as is needed therefor, the remainder may be held and improved for any public purpose or purposes, or may be sold or leased for value with or without suitable restrictions, and in case of any such sale or lease, the person or persons from whom such remainder was taken shall have the first right to purchase or lease the same upon such terms as the state or city or town is willing to sell or lease the same.

Cross References.

Taking of land by towns and cities for roads, § 24-1-1 et seq.

NOTES TO DECISIONS

In General.

Former § 37-18-6 exempting the Rhode Island Land Development Corporation from the operation or § 37-7-4 , which requires surplus property to be offered to the owner from whom acquired before being sold, was in violation of this amendment. Advisory Opinion to Governor, 110 R.I. 1 , 289 A.2d 430, 1972 R.I. LEXIS 869 (1972).

The term “place,” read in the context of the clause in which it appears, refers to a court or square or short street. Griffin v. Bendick, 463 A.2d 1340, 1983 R.I. LEXIS 1050 (R.I. 1983).

Right to Repurchase.

The first right of purchase by the original owner cannot be defeated by the purported grant of an easement or right-of-way which contains a provision under which without further action on the grantee’s part becomes a sale after a lapse of time and becomes effective to secure vesting of title in such grantee. M. S. Alper & Son v. Capaldi, 99 R.I. 242 , 206 A.2d 859, 1965 R.I. LEXIS 424 (1965).

A condemnee does not have a constitutional right to repurchase land condemned for airport purposes. Lapre v. Flanders, 465 A.2d 214, 1983 R.I. LEXIS 1094 (R.I. 1983).

Property conveyed to city by quitclaim deed without any reserved right or interest following adoption of resolution condemning the property for school purposes but never used for school purposes does not come within this amendment which applies only to land taken or purchased for highway purposes. Wood v. East Providence, 504 A.2d 441, 1986 R.I. LEXIS 391 (R.I. 1986).

Differential treatment in granting highway condemnees a right of repurchase that is unavailable to school condemnees does not violate the equal protection clause, there being a historic and rational basis for affording highway condemnees such a right because the retention of excess land taken by the state will be unnecessary once the highway is completed. Wood v. East Providence, 811 F.2d 677, 1987 U.S. App. LEXIS 2107 (1st Cir. 1987).

Superior court properly entered a judgment in favor of the Rhode Island Department of Transportation in an estate’s action to repurchase land condemned for highway purposes because R.I. Const. art. VI, § 19 simply did not include language that the right of first refusal passed to the heir, successors, and assigns of the original condemnees upon death. Estate of Deeble v. R.I. DOT, 134 A.3d 183, 2016 R.I. LEXIS 42 (R.I. 2016).

— Port Facilities.

The preemption rights guaranteed by this provision are not applicable to land taken for the construction of port facilities. Griffin v. Bendick, 463 A.2d 1340, 1983 R.I. LEXIS 1050 (R.I. 1983).

The legislature, if it had so desired, could have expressly included a reference to port facilities in the language of this provision, thus the absence of any such reference consequently evidences an intent not to include such facilities within its ambit. Griffin v. Bendick, 463 A.2d 1340, 1983 R.I. LEXIS 1050 (R.I. 1983).

Collateral References.

Abutting owner’s right to damages for limitation of access caused by traffic regulation. 15 A.L.R.5th 821.

§ 20. Local off-street parking facilities.

The general assembly may authorize cities and towns to acquire property by eminent domain, or otherwise for the establishment and construction of off-street parking facilities and to maintain and operate or lease the same. Without limiting the generalities of the foregoing, any of the powers or authorities consistent with the provisions of this article for the provision of off-street parking now vested in public bodies by law, shall continue in existence and may be exercised by said public bodies, except as such powers and authorities may be modified, or repealed by the general assembly.

§ 21. Emergency powers in case of enemy attack.

The general assembly, in order to insure continuity of state and local governmental operations, including the judicial functions, in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, to enact legislation permitting the convening of the general assembly at any place within or without the State of Rhode Island, and to adopt such other measures as may be necessary and proper for insuring the continuity of governmental operations during the period of said emergency. Any law enacted under this section shall apply to all cities and towns regardless of their form of charter. During said period of emergency the general assembly shall have the power to incur state debts exceeding the limitation set forth in Sections 16 and 17 of this article. The powers granted and the laws enacted under this section shall not be effective after two years following the inception of an enemy attack.

§ 22. Restriction of gambling.

No act expanding the types or locations of gambling which are permitted within the state or within any city or town therein or expanding municipalities in which a particular form of gambling is authorized shall take effect until it has been approved by the majority of those electors voting in a statewide referendum and by the majority of those electors voting in said referendum in the municipality in which the proposed gambling would be allowed and, having been so approved in said referendum in any city or town on or after November 4, 2014, the location where the gambling is permitted in any city or town shall not be changed within said city or town without approval of the majority of those electors voting on said proposed change in a referendum in said city or town.

The secretary of state shall certify the results of the statewide referendum and the local board of canvassers of the city or town where the gambling is to be allowed shall certify the results of the local referendum to the secretary of state.

History of Section.

This section was added by 1993 Resolutions 168 and 169, approved by the voters on November 8, 1994, and was amended by 2014 Resolutions 401 and 417, approved by the voters on November 4, 2014.

Law Reviews.

2005 Survey of Rhode Island Law: Constitutional Law: In re Advisory Opinion to the House of Representatives (Casino II), 885 A.2d 698 (R.I. 2005), see 11 Roger Williams U. L. Rev. 775 (2006).

Article VII Of the House of Representatives

§ 1. Composition.

There shall be one hundred members of the house of representatives, provided, however, that commencing in 2003 there shall be seventy-five members of the house of representatives. The house of representatives shall be constituted on the basis of population and the representative districts shall be as nearly equal in population and as compact in territory as possible. The general assembly shall, after any new census taken by authority of the United States, reapportion the representation to conform to the Constitution of the state and the Constitution of the United States.

History of Section.

Proposed amendments to Article VII, Section 1 of the R.I. Constitution by Joint Resolutions 184 and 193 of 1994 were approved by a majority of the electorate voting in a statewide election on November 8, 1994.

Cross References.

Apportionment and districts of house members, §§ 22-2-1 to 22-2-4 .

NOTES TO DECISIONS

Compactness.

House of Representatives’ redistricting plan did not violate the constitutional mandate that legislative districts be as compact in territory as possible even where there were a large number of crossings of municipal boundaries in the statewide plan and the alignment of district 98 in the town of Jamestown was done with a portion of the city of Newport rather than with the town of North Kingstown. Holmes v. Farmer, 475 A.2d 976, 1984 R.I. LEXIS 489 (R.I. 1984).

Elections at Large.

Proposals which would provide for elections at large do not comply with this section since there is no apportionment. Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

Fractional or Multiple Voting.

Since each member of the house of representatives is entitled to the standing which his membership bears to the whole, a plan of apportionment by having members vote on a fractional or multiple basis in ratio to population would violate the state constitution. Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

Jurisdiction to Apportion.

This article vests the general assembly with exclusive jurisdiction to apportion the house. Sweeney v. Notte, 95 R.I. 68 , 183 A.2d 296, 1969 R.I. LEXIS 880 (1969).

The apportionment of representation is peculiarly a matter within the legislative power and this court may not, at least with propriety, purport to pass judgment upon the suitability or wisdom of the means which the legislature takes to discharge that duty. Opinion to Governor, 95 R.I. 109 , 185 A.2d 111, 1962 R.I. LEXIS 137 (1962).

Limitation of Legislative Power.

The framers of the constitution, recognizing the general assembly as the repository of the legislative power, declared in that document that the assembly’s exercise of that power was to be limited only by express or necessarily implied constitutional prohibitions; it is the court’s further opinion that this authority to limit legislative power is not prohibited by necessary implication within the meaning of section 10 of article IV because of a legislative failure to comply with the constitutional provision relating to its apportionment. Opinion to Governor, 95 R.I. 109 , 185 A.2d 111, 1962 R.I. LEXIS 137 (1962).

Members Elected Under Unconstitutional Statute.

The question as to whether members of the house that will be elected under the apportionment statute held to be unconstitutional will have authority to exercise the legislative power of the state was answered in the affirmative by the supreme court. Opinion to Governor, 95 R.I. 109 , 185 A.2d 111, 1962 R.I. LEXIS 137 (1962).

Obligation to Reapportion.

The obligation to reapportion is mandatory whenever after a state or federal census it becomes apparent that the prevailing apportionment constitutes a denial of equal protection. Sweeney v. Notte, 95 R.I. 68 , 183 A.2d 296, 1969 R.I. LEXIS 880 (1969).

This provision of the constitution, not being void in its entirety, the legislature is under obligation to reapportion the house when any census taken reveals the necessity for such reapportionment, and such reapportionment, in order to be proper under the Fourteenth Amendment of the federal Constitution, can either retain the limitation on the number of house members and reapportion the state by population permitting some municipalities to be unrepresented, or if it is desired that all municipalities be represented, the reapportionment can be made on a population basis, by making no limitation on the number of house members. Sweeney v. Notte, 95 R.I. 68 , 183 A.2d 296, 1969 R.I. LEXIS 880 (1969); Opinion to Governor, 95 R.I. 88 , 183 A.2d 806, 1962 R.I. LEXIS 169 (1962).

Legislative inaction as to the correction of malapportionment casts the continuing burden upon successive legislatures to accomplish such a correction of the malapportionment. The inescapable implication is that, despite malapportionment, successive legislatures may be lawfully elected and possess the authority to exercise legislative power to correct such inequalities of representation. Opinion to Governor, 95 R.I. 109 , 185 A.2d 111, 1962 R.I. LEXIS 137 (1962).

Special Study Commission.

The general assembly is entitled to the presumption that, in prolonging the life of the special study commission as to reapportionment and in extending the time within which it is authorized to submit proposed corrective legislation, it was acting in good faith to reasonably discharge its constitutional obligation with such reasonable promptitude as the circumstances permit. Opinion to Governor, 95 R.I. 109 , 185 A.2d 111, 1962 R.I. LEXIS 137 (1962).

Collateral References.

Application of constitutional “compactness requirement” to redistricting. 114 A.L.R.5th 311.

State court jurisdiction over congressional redistricting disputes. 114 A.L.R.5th 387.

§ 2. Officers — Presiding member during organization.

The house of representatives shall have authority to elect its speaker, clerks, and other officers. The senior member from the City of Newport, if any be present, shall preside in the organization of the house.

Cross References.

Organization of general assembly, § 22-3-1 et seq.

Article VIII Of the Senate

§ 1. Composition.

The senate shall consist of the lieutenant governor and fifty members from the senatorial districts in the state, provided, however, that commencing in 2003 the senate shall consist of thirty-eight members from the senatorial districts in the state. The senate shall be constituted on the basis of population and the senatorial districts shall be as nearly equal in population and as compact in territory as possible. The general assembly shall, after any new census taken by authority of the United States, reapportion the representation to conform to the Constitution of the state and the Constitution of the United States.

History of Section.

Proposed amendments to Article VIII, Section 1 of the R.I. Constitution by Joint Resolutions 184 and 193 of 1994 were approved by a majority of the electorate voting in a statewide election on November 8, 1994.

Cross References.

Apportionment and senatorial districts, § 22-1-1 et seq.

Law Reviews.

2006 Survey of Rhode Island Law: Case: Constitutional Law: Parella v. Montalbano, 899 A.2d 1226 (R.I. 2006), see 12 Roger Williams U. L. Rev. 511 (2007).

NOTES TO DECISIONS

Constitutional Criteria.

In order for an interim reapportionment plan of the Rhode Island State Senate to pass constitutional muster, it must meet two basic criteria; the one-person, one-vote requirement of the equal protection clause of the Fourteenth Amendment of the federal Constitution and the Rhode Island constitutional mandate in this amendment that each senate district be as compact as possible and not the result of a political gerrymander. Farnum v. Burns, 561 F. Supp. 83, 1983 U.S. Dist. LEXIS 19320 (D.R.I. 1983).

“Compact” as used in R.I. Const. art. VIII, § 1 referred to more than geography for purposes of determining that it was met by the redistricting plan encompassed within R.I. Gen. Laws § 22-1-2 ; compactness was determined by a qualitative approach with the goal of maintaining effective representation in the districts, and factors considered included contiguity, political gerrymandering, communities of interest, geographical, natural, historical, and political boundary concerns, and functional compactness. Parella v. Montalbano, 899 A.2d 1226, 2006 R.I. LEXIS 104 (R.I. 2006).

Where an overall deviation in population in challenged Senate districts as a result of redistricting under R.I. Gen. Laws § 22-1-2 was less than 10 percent, the actual deviations were de minimis for purposes of a claim by voters and residents that the redistricting resulted in invidious discrimination under U.S. Const. amend. XIV so as to require justification by Rhode Island; there was no equal protection violation shown and no extremely close violation for purposes of finding the redistricting legislation unconstitutional under the compactness requirement of R.I. Const. art. VIII, § 1 . Parella v. Montalbano, 899 A.2d 1226, 2006 R.I. LEXIS 104 (R.I. 2006).

Judicial Review.

Where only a portion of a reapportionment plan proposed by a state legislative committee is unconstitutional under state law, it would be inappropriate for a federal court to strike down the entire plan. Farnum v. Burns, 561 F. Supp. 83, 1983 U.S. Dist. LEXIS 19320 (D.R.I. 1983).

Rhode Island Supreme Court holds that voters and residents of certain redistricted areas pursuant to a redistricting plan encompassed within R.I. Gen. Laws § 22-1-2 did not meet their burden of overcoming the presumption of the constitutionality of § 22-1-2 with proof beyond a reasonable doubt that the redistricting resulted in a violation of the Compactness Clause of R.I. Const. art. VIII, § 1 ; the principles of compactness and contiguity are not violated, there is no political gerrymandering, each district has communities of interest, there is no unlawful population deviations, and the redistricting overall is reasonable and rational. Parella v. Montalbano, 899 A.2d 1226, 2006 R.I. LEXIS 104 (R.I. 2006).

Collateral References.

Application of constitutional “compactness requirement” to redistricting. 114 A.L.R.5th 311.

State court jurisdiction over congressional redistricting disputes. 114 A.L.R.5th 387.

§ 2. Lieutenant governor to be presiding officer until 2003.

The lieutenant governor shall preside in the senate and in grand committee until 2003. Commencing in 2003, the senate shall elect its president, who shall preside in the senate and in grand committee, as well as its secretary and other officers from among its members and shall elect its clerks. The senior member from the city of Newport, if any be present, shall preside in the organization of the senate.

History of Section.

Proposed amendments to Article VIII, Section 2 of the R.I. Constitution by Joint Resolutions 184 and 193 of 1994 were approved by a majority of the electorate voting in a statewide election on November 8, 1994.

§ 3. [Repealed.]

Compiler’s Notes.

For the repeal of this provision, see R.I. Const., Art. VIII, § 2 .

§ 4. [Repealed.]

Compiler’s Notes.

For the repeal of this provision, see R.I. Const., Art. VIII, § 2 .

Article IX Of the Executive Power

§ 1. Power vested in governor.

The chief executive power of this state shall be vested in a governor, who, together with a lieutenant governor, shall be elected by the people.

Cross References.

Powers and duties of governor, § 42-7-1 .

Comparative Provisions.

Power of governor:

Conn. 1965 Const., art. Fourth, § 5.

Mass. Const. Pt. 2, C. 2, § 1, Art. 4.

NOTES TO DECISIONS

Power of Governor.

Under this provision the chief executive power of the state is vested in the governor, but the Constitution gives him expressly very little executive power and gives the general assembly in grand committee power to elect officers whose choice is not expressly provided for in the Constitution. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

§ 2. Faithful execution of laws.

The governor shall take care that the laws be faithfully executed.

Comparative Provisions.

Execution of laws:

Conn. 1965 Const., art. Fourth, § 12.

NOTES TO DECISIONS

Advisory Opinions.

This provision requires the performance of a continuing obligation by the governor and the general assembly, and the effective performance of this obligation requires from time to time assistance from the judges of the supreme court, upon questions of law, as best provided through the device of the advisory opinion ( R.I. Const., Art. X, Sec. 3 ). Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

Appointment of Commission.

The governor has the authority to appoint a commission to investigate in his behalf alleged malfeasance and nonfeasance in management of state penal institutions, but the members would not be entitled to administer oaths or enforce attendance of witnesses, and their report would be a privileged communication. In re Investigating Comm'n, 16 R.I. 751 , 11 A. 429, 1887 R.I. LEXIS 75 (1887).

Loss of Federal Funds.

Under this provision the governor must strictly adhere to the provisions of a state statute, although to do so may result in the loss to the state of substantial federal welfare funds. Advisory Opinion to Governor, 109 R.I. 474 , 287 A.2d 353, 1972 R.I. LEXIS 1209 (1972).

§ 3. Captain general and commander in chief of military and navy.

The governor shall be captain general and commander in chief of the military and naval forces of this state, except when they shall be called into the service of the United States.

Cross References.

Organization and command of military and naval forces, § 30-2-1 et seq.

Comparative Provisions.

Commander in chief:

Conn. 1965 Const., art. Fourth, § 8.

Mass. Const. Pt. 2, C. 2, § 1, Art. 7.

NOTES TO DECISIONS

Executive Powers.

When the governor is acting in his capacity as commander in chief, he is still acting within his executive powers and cannot be mandated to perform a duty imposed upon him by statute. Mauran v. Smith, 8 R.I. 192 , 1865 R.I. LEXIS 7 (1865).

§ 4. Reprieves.

The governor shall have power to grant reprieves, after conviction, in all cases, except those of impeachment, until the end of the next session of the general assembly.

Cross References.

Pardoning power of governor, R.I. Const., Art. IX, § 13 .

NOTES TO DECISIONS

Action Held Not Reprieve.

The consent given to the removal of petitioner to Massachusetts would not constitute a waiver of this state’s jurisdiction to indict and prosecute petitioner on the charges pending against him in this state nor was it in legal effect a reprieve by the governor of this state. Hanley v. Langlois, 93 R.I. 309 , 175 A.2d 182, 1961 R.I. LEXIS 109 (1961), cert. denied, 368 U.S. 1002, 82 S. Ct. 632, 7 L. Ed. 2d 540, 1962 U.S. LEXIS 1938 (1962).

§ 5. Powers of appointment.

The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

History of Section.

The majority of the electorate approved the separation of powers amendment in a statewide referendum on November 2, 2004; and this result was certified by the Board of Elections on November 23, 2004.

Law Reviews.

For article, Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water), see 12 Roger Williams U. L. Rev. 314 (2007).

§ 6. Adjournment of general assembly.

In case of disagreement between the two houses of the general assembly, respecting the time or place of adjournment, certified by either, the governor may adjourn them to such time and place as the governor shall think proper; provided, that the time of adjournment shall not be extended beyond the day of the next stated session.

Comparative Provisions.

Adjournment by governor:

Conn. 1965 Const., art. Fourth, § 10.

Mass. Const. Pt. 2, C. 2, § 1, Art. 6.

NOTES TO DECISIONS

Judicial Review.

After certification by either house of the general assembly that the two houses are disagreed as to the place and time of adjournment, the governor may adjourn both houses and such decision is not subject to judicial review. In re Legislative Adjournment, 18 R.I. 824 , 27 A. 324, 1893 R.I. LEXIS 31 (1893).

§ 7. Convening of special sessions of the general assembly.

The governor may, on extraordinary occasions, convene the general assembly at any town or city in this state, at any time not provided for by law; and in case of danger from the prevalence of epidemic or contagious disease, in the place in which the general assembly is by law to meet, or to which it may have been adjourned, or for other urgent reasons, the governor may by proclamation convene said assembly at any other place within this state.

Cross References.

Special session to fill vacancies in offices of governor and lieutenant governor, § 17-2-4 .

§ 8. Commissions.

All commissions shall be in the name and by authority of the state of Rhode Island; shall be sealed with the state seal, signed by the governor, and attested by the secretary.

History of Section. Amended Nov. 3, 2020.

Compiler’s Notes.

The 2020 amendment, which substituted “the state of Rhode Island” for “the state of Rhode Island and Providence Plantations”, was proposed by 2020 Joint Resolutions Nos. 239 and 247 and approved at the November 2020 general election by a vote of 247,261 for and 218,175 against.

§ 9. Vacancy in office of governor.

If the office of the governor shall be vacant by reason of death, resignation, impeachment or inability to serve, the lieutenant governor shall fill the office of governor, and exercise the powers and authority appertaining thereto, until a governor is qualified to act, or until the office is filled at the next election.

History of Section.

A proposed amendment to Article IX, Section 9 of the R.I. Constitution by Joint Resolution 179 was approved by a majority of the electorate voting in a statewide referendum on November 3, 1992.

Comparative Provisions.

Vacancy in governor’s office:

Conn. 1965 Const., art. Fourth, §§ 18, 21.

Const. Pt. 2, C. 2, § 2, Art. 3.

NOTES TO DECISIONS

Exercise by Lieutenant Governor.

If a petitioner for a writ of habeas corpus under § 12-9-2 et seq. wished to contest the authority of the lieutenant governor to sign the rendition warrant, it was incumbent on him to show that, at the time the document was signed, the governor was capable of performing his duties as the state’s chief executive. Brown v. Sharkey, 106 R.I. 714 , 263 A.2d 104, 1970 R.I. LEXIS 979 (1970).

§ 10. Vacancies in both offices of governor and lieutenant governor.

If the offices of governor and lieutenant governor be both vacant by reason of death, resignation, impeachment, or inability to serve, the speaker of the house of representatives shall in like manner fill the office of governor during such vacancy.

History of Section.

A proposed amendment to Article IX, Section 10 of the R.I. Constitution by Joint Resolution 179 was approved by a majority of the electorate voting in a statewide referendum on November 3, 1992.

Compiler’s Notes.

The provision for the speaker of the house to fill this vacancy was new in the 1986 Constitution.

§ 11. Compensation of governor and lieutenant governor.

The compensation of the governor and lieutenant governor shall be established by law, and shall not be diminished during the term for which they are elected.

Cross References.

Compensation of governor and lieutenant governor, §§ 36-6-1 , 36-6-2 .

§ 12. Powers and duties of secretary, attorney-general, and general treasurer.

The duties and powers of the secretary, attorney-general and general treasurer shall be the same under this Constitution as are now established, or as from time to time may be prescribed by law.

Cross References.

Duties of attorney-general, § 42-9-1 et seq.

Duties of general treasurer, § 42-10-1 et seq.

Duties of secretary of state, § 42-8-1 et seq.

NOTES TO DECISIONS

Attorney General.
— General Power.

The attorney general performs the duties of a public prosecutor, and may exercise validly such powers as were possessed by the occupant of that office at the time of adoption of the constitution. Suitor v. Nugent, 98 R.I. 56 , 199 A.2d 722, 1964 R.I. LEXIS 128 (1964).

Proposed legislation transferring full prosecutorial authority to a special prosecutor appointed by a member of the judicial branch of government severely infringes upon the fundamental powers of the attorney general. Accordingly, we find that the proposed legislation violates R.I. Const., art. IX, § 12 . In re House of Representatives, 575 A.2d 176, 1990 R.I. LEXIS 187 (R.I. 1990).

— Immunity From Private Suit.

The attorney-general, in acting to enforce the criminal law, performs acts which require an exercise of judgment or discretion and are in the nature of judicial acts, and when so acting, he acts as a quasi-judicial officer and is immune from private suit for actions so taken regardless of his motives. Suitor v. Nugent, 98 R.I. 56 , 199 A.2d 722, 1964 R.I. LEXIS 128 (1964).

— Nolle Prosequi.

Under this section, the attorney-general has common law power to enter a nolle prosequi in criminal cases at any time before sentence is imposed without the advice or permission of the court. Rogers v. Hill, 22 R.I. 496 , 48 A. 670, 1901 R.I. LEXIS 41 (1901).

A nolle prosequi by assistant attorney-general of indictment for assault with dangerous weapon did not bar sentence for simple assault, since indictment for assault with dangerous weapon included lesser charge of simple assault. Ex parte McGrane, 47 R.I. 106 , 130 A. 804, 1925 R.I. LEXIS 70 (1925).

— Prosecutorial Discretion.

The defendant is not denied a fair hearing by the attorney general’s failure to investigate alleged perjury of state witnesses as ordered by the trial justice in ruling on a new-trial motion, as prosecutorial discretion is vested soley in the attorney general, who is validly exercising that discretion in deciding not to investigate further and prosecute alleged perjurers. Jefferson v. State, 472 A.2d 1200, 1984 R.I. LEXIS 461 (R.I. 1984).

Trial justice committed clear error by sua sponte dismissing a criminal information against defendant as defendant did not file a motion to dismiss, and the trial court failed to follow the procedural rules applicable to dismissals. By prohibiting the Attorney General from fully prosecuting the felony information in violation of R.I. Super. Ct. R. Crim. P. 9 .1, the trial justice clearly erred and deprived the State of a fair proceeding. State v. Strom, 941 A.2d 837, 2008 R.I. LEXIS 3 (R.I. 2008).

— Sentencing.

Attorney-general has the authority to make an agreement with the defendant to delay sentencing, notwithstanding defendant’s right to be sentenced within a reasonable time, and if the defendant voluntarily agrees to such a delay then he cannot later complain of not being sentenced immediately. Orabona v. Linscott, 49 R.I. 443 , 144 A. 52, 1928 R.I. LEXIS 86 (1928).

Attorney-general’s exercise of his discretion under G.L. 1938, ch. 625, § 72 [former § 12-19-1 ] as to whether or when to move for sentence after verdict of guilty in criminal trial, even if pending prosecution of bill of exceptions, was not unconstitutional as invading the province of the judiciary under R.I. Const., Art. X, § 1 (now see R.I. Const., Art. 10, Sec. 1 ), even though the court was required to “forthwith proceed to sentence.” State v. Fay, 65 R.I. 304 , 14 A.2d 799, 1940 R.I. LEXIS 126 (1940).

— Speedy Trial.

The attorney-general’s control of prosecution is regulated by the constitutional right of the accused to a speedy trial, but if the accused fails to demand a trial, then the attorney-general decides when if ever the indictment shall be tried. Orabona v. Linscott, 49 R.I. 443 , 144 A. 52, 1928 R.I. LEXIS 86 (1928).

This section does not give the attorney-general unlimited control over trial calendars, but such power is limited by former R.I. Const., art. 1, § 10 (now see R.I. Const., Art. 1, Sec. 10 ), entitling the accused to a speedy trial, and § 12-13-7 , requiring trial of the accused within six months after he pleads to the indictment if he demands a trial unless delay is unavoidable. Palmigiano v. Affleck, 327 F. Supp. 1280, 1971 U.S. Dist. LEXIS 12928 (D.R.I. 1971).

§ 13. Pardons.

The governor, by and with the advice and consent of the senate, shall hereafter exclusively exercise the pardoning power, except in cases of impeachment, to the same extent as such power is now exercised by the general assembly.

Cross References.

Pardons, §§ 13-10-1 , 13-10-2 .

NOTES TO DECISIONS

Voting Privileges.

Governor by virtue of the pardoning power could not restore voting privileges to one convicted of a crime deemed infamous at common law, as the right to vote could only be restored by an act of the general assembly. In re Opinions of the Judges, 4 R.I. 583 (1858).

Collateral References.

Judicial investigation of pardon by governor. 101 A.L.R.6th 431.

§ 14. Veto power of governor — Veto overrides by general assembly — Acts effective without action by governor.

Every bill, resolution, or vote (except such as relate to adjournment, the organization or conduct of either or both houses of the general assembly, and resolutions proposing amendment to the Constitution) which shall have passed both houses of the general assembly shall be presented to the governor. If the governor approve it the governor shall sign it, and thereupon it shall become operative, but if the governor does not approve it the governor shall return it, accompanied by the governor’s objections in writing to the house in which it originated, which shall enter the governor’s objections in full upon its journal and proceed to reconsider it. If, after such reconsideration, three-fifths of the members present and voting in that house shall vote to pass the measure, it shall be sent with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by three-fifths of the members present and voting in that house, it shall become operative in the same manner as if the governor had approved it, but in such cases the votes of both houses shall be determined by ayes and nays and the names of the members voting for and against the measure shall be entered upon the journal of each house, respectively. If the measure shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to the governor the same shall become operative unless the general assembly, by adjournment, prevents its return, in which case it shall become operative unless transmitted by the governor to the secretary of state, with the governor’s disapproval in writing within ten days after such adjournment.

Cross References.

Action by governor, § 43-1-1 et seq.

Powers and duties of governor, § 42-7-1 .

Comparative Provisions.

Governor’s veto power:

Conn. 1965 Const., art. Fourth, §§ 15, 16.

Mass. Const. Pt. 2, C. 1, § 1, Art. 2.

NOTES TO DECISIONS

Computation of Time.

Sundays are excluded in computing time under this article only if the last day falls on Sunday, so that when bill was passed on Friday, April 21 and the general assembly adjourned on Saturday, April 22, the Sundays which fell on April 23 and April 30 were included and veto of governor filed on May 3 was not timely. In re Opinion to Governor, 44 R.I. 275 , 117 A. 97, 1922 R.I. LEXIS 37 (1922).

Presentation of Bill to Governor.

Under this provision, where only one house of the assembly voted for both public and private appropriations as distinct and several items, while the other house voted for public appropriations only, the bill in such form should not have been presented to the governor for his approval but should have been sent to the other house for further action. In re Opinion of Justices, 45 R.I. 289 , 120 A. 868, 1923 R.I. LEXIS 42 (1923).

§ 15. State budget.

The governor shall prepare and present to the general assembly an annual, consolidated operating and capital improvement state budget.

Compiler's Notes.

This provision was new in the 1986 Constitution.

§ 16. Limitation on state spending.

  1. No appropriation, supplemental appropriation or budget act shall cause the aggregate state general revenue appropriations enacted in any given fiscal year to exceed ninety-seven percent (97%) of the estimated state general revenues for such fiscal year from all sources, including estimated unencumbered general revenues to the new fiscal year remaining at the end of the previous fiscal year. Estimated unencumbered general revenues are calculated by taking the estimated general revenue cash balance at the end of the fiscal year less estimated revenue anticipation bonds or notes, estimated general revenue encumbrances, estimated continuing general revenue appropriations and the amount of the budget reserve account at the end of said fiscal year.
  2. The amount between the applicable percentage in (a) and one hundred percent (100%) of the estimated state general revenue for any fiscal year as estimated in accordance with subsection (a) of this section shall be appropriated in any given fiscal year into the budget reserve account; provided, however, that no such payment will be made which would increase the total of the budget reserve account to more than five percent (5%) of only the estimated state general revenues as set by subsection (a) of this section. In the event that the payment to be made into the budget reserve account would increase the amount in said account to more than five percent (5%) of estimated state general revenues that said amount shall be transferred to the Rhode Island Capital Plan fund to be used solely for funding capital projects.
  3. Within forty-five (45) days after the close of any fiscal year, all unencumbered general revenue in the year end surplus account from the said fiscal year shall be transferred to the general fund.

History of Section.

A proposed amendment to Article IX of the R.I. Constitution by P.L. 1992, ch. 133, art. 90, § 1 was approved by a majority of the electorate voting in a statewide referendum on November 3, 1992. The amendment added this section and Art. IX, § 17.

A proposed amendment to Article IX, § 16 of the Constitution by P.L. 2006, ch. 246, art. 37 was approved by a majority of the electorate voting in a statewide referendum on November 7, 2006. The 2006 referendum approved a previously published version of this section that was effective from July 1, 2007 until July 1, 2012, as well as the version of this section set out above, which was effective July 1, 2012.

§ 17. Budget reserve account.

There is hereby established a budget reserve account within the general fund. Revenues in this budget reserve account may be appropriated in the event of an emergency involving the health, safety or welfare of the citizens of the state of Rhode Island or in the event of an unanticipated deficit in any given fiscal year, such appropriations to be approved by a majority vote of each house of the general assembly.

History of Section.

A proposed amendment to Article IX of the R.I. Constitution by P.L. 1992, ch. 133, art. 90, § 1 was approved by a majority of the electorate voting in a statewide referendum on November 3, 1992. The amendment added this section and Art. IX, § 16.

Article X Of the Judicial Power

§ 1. Power vested in court.

The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish.

Cross References.

Inferior courts, § 8-2-1 et seq.

Supreme court, § 8-1-1 et seq., and § 8-3-1 et seq.

Comparative Provisions.

Establishment of courts:

Conn. 1965 Const., art. Fifth, § 1.

NOTES TO DECISIONS

City Ordinances.

Portions of city ordinances which purported to vacate and nullify a consent judgment, or to accomplish the same result indirectly by retroactive application, violated the doctrine of the separation of powers and were invalid and without force and effect. City of Providence v. Employee Retirement Bd., 749 A.2d 1088, 2000 R.I. LEXIS 81 (R.I. 2000).

City’s pension ordinance had no force or effect as to retirees who were parties to cases in which a settlement agreement was reached and a consent judgment entered because a final judgment was the ultimate exercise of judicial power, and the city council’s attempt to override those final judgments was a violation of the doctrine of the separation of powers. Andrews v. Lombardi, 231 A.3d 1108, 2020 R.I. LEXIS 57 (R.I. 2020).

Superior court erred in granting a city’s cross-motion for summary judgment in an action by a retired firefighter and two retired police officers (jointly, the retirees) to enforce the 2004 consent judgments and hold the city in contempt of those judgments; to the extent that the city’s 2012 pension ordinance purported to nullify the 2004 consent judgments by suspending the cost-of-living adjustment, it violated separation-of-powers principles embodied in the state constitution, and, although the city had a legitimate interest in its own fiscal health, the pension ordinance was “unnecessary” to achieving that interest since interfering with judicial power was not a “necessary” exercise of authority. Quattrucci v. Lombardi, 232 A.3d 1062, 2020 R.I. LEXIS 58 (R.I. 2020).

Creation of Inferior Courts.

G.L. 1896, ch. 221, providing for an appellate division and common pleas division of the supreme court, was not unconstitutional, since jurisdiction in all appellate cases is not necessarily vested in the supreme court as one body, but its jurisdiction may be separated into parts and entrusted to less than the whole or a majority of the body under the power vested in the general assembly to distribute the jurisdiction of the court. Floyd v. Quinn, 24 R.I. 147 , 52 A. 880, 1902 R.I. LEXIS 38 (1902).

— Salary and Term.

State officers, including district court judges and clerks chosen by the legislature or appointed by their authorization, have no contractual right or property interests in their offices, and, in absence of any constitutional right, have no vested interest of any kind in the office or its future emoluments. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

While the tenure and salaries of supreme court judges are expressly protected by the Constitution of the state, those for judges of the inferior courts established by the legislature are not. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Term of state officers, including judge and clerks of district courts chosen or appointed by or under authority of the legislature, may be reduced or ended by the legislature with or without abolition of the office and without fault, and salary may be reduced or increased. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Exercise of Judicial Power.

The determination of who shall be judges or officers of the courts or how that question shall be determined is no necessary or usual part of the judicial power but is in the domain of legislative power. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

There is no provision in 89-H-7433 Substitute A that disqualifies the chief justice from reviewing actions of the special prosecutor. As a result the chief justice will be in a position to rule on any appeals brought by the special prosecutors he has appointed. Although the chief justice could recuse himself from participation in appeals involving special prosecutors, proposed legislation, transferring full prosecutorial authority to a special prosecutor appointed by a member of the judiciary, does not require the chief justice to do so. This potential for the chief justice to serve in dual capacities clearly brings into question the impartiality of the judiciary. We believe the proposed legislation “impermissibly threatens the institutional integrity of the Judicial Branch.” In re House of Representatives, 575 A.2d 176, 1990 R.I. LEXIS 187 (R.I. 1990).

— Boards.

The grant of power by former P.L. 1877, ch. 603, § 11 to the board of state charities and corrections to commit inmates of the reform school to the state workhouse for certain causes therein specified was not in conflict with this section, since the power given is merely disciplinary and not judicial. In re Cassidy, 13 R.I. 143 , 1880 R.I. LEXIS 65 (1880).

G.L. 1896, ch. 165, § 5 [§ 5-37-4 ], conferring power upon state board of health to conduct hearing, did not conflict with this section because even if board was not a judicial body, a judicial trial before the highest court in the state was provided. State Bd. of Health v. Roy, 22 R.I. 538 , 48 A. 802, 1901 R.I. LEXIS 50 (1901).

— Examination of Constitutionality of Statute.

A trial justice does not have the authority to attack sua sponte the constitutionality of a statute; it must be raised by a party entitled to make such a challenge. Devane v. Devane, 581 A.2d 264, 1990 R.I. LEXIS 154 (R.I. 1990).

— Legislature.

An act of the general assembly which purports to reverse and annul a judgment of the supreme court is unconstitutional since such act is an exercise of judicial power. In re Opinion of the Supreme Court, 3 R.I. 299 , 1854 R.I. LEXIS 14 (1854).

A vote of the general assembly which purported to reopen judgments obtained in the court of common pleas to permit the garnishees to amend their affidavits, and which set aside the verdict against the garnishees in a pending suit so they could take advantage of the amended affidavits, was an unconstitutional exercise of judicial power. G. & D. Taylor & Co. v. Place, 4 R.I. 324 , 1856 R.I. LEXIS 32 (1856).

A special act of the general assembly conferring jurisdiction upon the court to administer the poor debtor’s oath to a particular tort debtor was not an unconstitutional exercise of judicial power by the legislature, since the act did not purport to disturb the judgment or execution but merely conferred additional jurisdiction. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

The general assembly cannot exercise judicial jurisdiction but can regulate and distribute it. Floyd v. Quinn, 24 R.I. 147 , 52 A. 880, 1902 R.I. LEXIS 38 (1902).

P.L. 1948, ch. 2085, § 1 [§ 12-19-18 ], providing that any sentence of imprisonment for violation of a deferred sentence for alleged commission of a felony shall be quashed on motion of defendant if grand jury fails to indict defendant on felony charge, violates this section as an indirect exercise of judicial power by the general assembly. State v. Garnetto, 75 R.I. 86 , 63 A.2d 777, 1949 R.I. LEXIS 11 (1949).

The supreme court has jurisdiction to determine questions of constitutional and fundamental law even though raised in an election contest pertaining to seats in the general assembly. McGann v. Bd. of Elections, 85 R.I. 223 , 129 A.2d 341, 1957 R.I. LEXIS 140 (1957).

Neither the executive department nor the legislative department may arrogate to itself the exercise of judicial power. Sartor v. Coastal Resources Management Council, 542 A.2d 1077, 1988 R.I. LEXIS 60 (R.I. 1988).

— Officers.

Commissioners appointed by probate court to hear contested claims against insolvent estates under G.L. 1896, ch. 215, § 3 [see § 33-11-24 ] do not constitute a court within the meaning of this section. Mason v. Taft, 23 R.I. 388 , 50 A. 648, 1901 R.I. LEXIS 154 (1901).

Provisions requiring approval of erection of billboard signs by city and town officials designated by city ordinance does not constitute the creation of judicial powers in the said officials contrary to provisions of the state Constitution. Horton v. Old Colony Bill Posting Co., 36 R.I. 507 , 90 A. 822, 1914 R.I. LEXIS 44 (1914).

Attorney general’s exercise of his discretion as to whether or when to move for sentence after verdict of guilty in criminal trial, even if pending prosecution of bill of exceptions, under G.L. 1938, ch. 625, § 72 [former § 12-19-1 ], was not unconstitutional as invading the province of the judiciary under this section even though the court was required to “forthwith proceed to sentence.” State v. Fay, 65 R.I. 304 , 14 A.2d 799, 1940 R.I. LEXIS 126 (1940).

The provisions of the Motor Vehicle Safety Responsibility Act (§ 31-31-1 et seq.) requiring the registry of motor vehicles to suspend licenses and to determine the amount of security to be deposited to avoid suspension does not constitute a delegation of judicial power so as to be repugnant to this section. Berberian v. Lussier, 87 R.I. 226 , 139 A.2d 869, 1958 R.I. LEXIS 45 (1958).

— Practice of Law.

It is within power of the court to regulate and control the practice of law in or out of court and license attorneys, and therefore it has power to define what constitutes the practice of law and to exclude unauthorized persons notwithstanding exercise by legislature of its power to declare acts of unauthorized practice of law illegal and punishable by fine or imprisonment, and therefore G.L. 1923, ch. 401, §§ 44-47 [§§ 11-27-1 to 11-27-5 , 11-27-1 1 to 11-27-18 ] were in aid of the authority of the supreme court. Rhode Island Bar Ass'n v. Automobile Serv. Ass'n, 55 R.I. 122 , 179 A. 139, 1935 R.I. LEXIS 11 (1935).

The Professional Service Corporation Act (§§ 7-5.1-1 to 7-5.1-12 ) does not interfere with the inherent power of the supreme court relating to the practice of law. In re Rhode Island Bar Ass'n, 106 R.I. 752 , 263 A.2d 692, 1970 R.I. LEXIS 985 (1970).

Jurisdiction.

The details and extent of jurisdiction of the Superior Court is a matter within the province of the legislature. Advisory Opinion to Governor, 437 A.2d 542, 1981 R.I. LEXIS 1405 (R.I. 1981).

District Court lacks jurisdiction to hear the State’s appeal of a decision of the appeals panel of the Traffic Tribunal; although the General Assembly provided that the chief magistrate can enact rules to regulate the practice, procedure, and business within that tribunal, R.I. Gen. Laws §§ 8-6-2 and 8-8.2-1 , the Traffic Tribunal cannot use its rules to expand its own jurisdiction, and the magistrate does not have the authority to promulgate a rule that expands the jurisdiction of the District Court because that is a right that is solely within the province of the General Assembly. State v. Robinson, 972 A.2d 150, 2009 R.I. LEXIS 81 (R.I. 2009).

Power of Administrative Agencies.

The Coastal Resources Management Council exercises legislatively delegated powers pursuant to rigorous statutory control and subject to judicial intervention at the appropriate juncture in the proceedings. The council does not exercise judicial power. Sartor v. Coastal Resources Management Council, 542 A.2d 1077, 1988 R.I. LEXIS 60 (R.I. 1988).

§ 2. Jurisdiction of supreme and inferior courts — Quorum of supreme court.

The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity. It shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law. A majority of its judges shall always be necessary to constitute a quorum. The inferior courts shall have such jurisdiction as may, from time to time, be prescribed by law.

Cross References.

Powers of supreme court, § 8-1-1 et seq.

Comparative Provisions.

Jurisdiction of supreme court:

Conn. 1965 Const., art. Fifth, § 1.

NOTES TO DECISIONS

Chancery Power.

G.L. 1896, ch. 196, § 41 [§ 33-15-42 ], providing a method by which nonresident guardians may secure property located in Rhode Island by filing a petition for removal from the state, did not violate provision prohibiting the extension of chancery powers in courts other than the supreme court, since probate courts have general jurisdiction of guardianship matters which do not require the interposition of equity. Mitchell v. People's Sav. Bank, 20 R.I. 500 , 40 A. 502, 1898 R.I. LEXIS 124 (1898).

Final Revisory and Appellate Jurisdiction.

P.L. 1912, ch. 896, which provided that the decree of the superior court should be “final and binding,” was construed to mean that the decree would be final in the superior court, but subject to review by the supreme court, so as to preserve constitutionality of the act. In re Pawtucket & Cent. Falls Grade Crossing Comm'n, 36 R.I. 200 , 89 A. 695, 1914 R.I. LEXIS 11 (1914).

When a statute expressly confers original appellate jurisdiction to correct error on a court other than the supreme court, such original appellate jurisdiction is exclusive and the statute is not in conflict with this section of the Constitution, as the final jurisdiction cannot be availed of until rights under the court of original appellate jurisdiction have been exhausted. MacKenzie & Shea v. Rhode Island Hosp. Trust Co., 45 R.I. 407 , 122 A. 774, 1923 R.I. LEXIS 85 (1923).

Appeal was properly before the supreme court for the purpose of determining whether there was any legal evidence to support the findings that the medical bills in question were reasonable since the main contention on appeal was that the decree appealed from was not supported by legal evidence and that it was therefore against law, it being well settled that findings of fact which are not supported by legal evidence amount to errors of law and will be reviewed by the supreme court upon appeal. McCoy v. Cataldo, 88 R.I. 330 , 148 A.2d 267, 1959 R.I. LEXIS 11 (1959).

Supreme court may use certiorari to exercise its appellate and revisory jurisdiction in review of actions of inferior tribunals taken in the exercise of their jurisdiction. Rogers v. Rogers, 98 R.I. 263 , 201 A.2d 140, 1964 R.I. LEXIS 161 (1964).

An opinion of the supreme court declares the law and the law thus announced becomes a precedent which must be followed by any inferior court even though a trial judge may personally disagree with the wisdom or soundness of the established rule to be applied — otherwise there can be no stability in the law. D'Arezzo v. D'Arezzo, 107 R.I. 422 , 267 A.2d 683, 1970 R.I. LEXIS 789 (1970).

The Supreme Court has the power to review a sentence when it is alleged to be excessive although within statutory limits, in the exercise of its general supervisory control of lower tribunals in aid of its appellate jurisdiction. State v. Fortes, 114 R.I. 161 , 330 A.2d 404, 1975 R.I. LEXIS 1393 (1975).

By refusing to enter final judgment, a trial justice, in effect, circumvents the Supreme Court of Rhode Island’s constitutionally vested jurisdiction by preventing an aggrieved party from appealing his decision to the Court, and the Court does not sanction such judicial action, which could burden litigants by requiring them to petition the Court for a writ of certiorari to obtain appellate review. Mackie v. State, 936 A.2d 588, 2007 R.I. LEXIS 126 (R.I. 2007).

— Constitutionality of Acts.

The supreme court is the only body entitled to determine constitutionality of a statute. Payne & Butler v. Providence Gas Co., 31 R.I. 295 , 77 A. 145, 1910 R.I. LEXIS 83 (1910).

— Dismissals.

Dismissal of petition that trustees be adjudged in contempt for not paying the plaintiff a specified sum pursuant to a prior court order could be appealed since it was a final decree. Jastram v. McAuslan, 29 R.I. 390 , 71 A. 454, 1909 R.I. LEXIS 24 (1909).

The supreme court has jurisdiction of bill of exceptions brought to review an alleged abuse of discretion of superior court in dismissing complaint. Fox v. Artesian Well & Supply Co., 34 R.I. 260 , 83 A. 115, 1912 R.I. LEXIS 46 (1912).

— Divorces.

A bill of exceptions can be used to bring to the supreme court questions of law arising in the trial of divorce cases. Thrift v. Thrift, 30 R.I. 357 , 75 A. 484, 1910 R.I. LEXIS 27 (1910).

— Elections.

By virtue of this provision, the supreme court will review questions of law arising on counting of ballots by board of canvassers and registration on a petition of quo warranto. Gainer v. Dunn, 29 R.I. 239 , 69 A. 851, 1908 R.I. LEXIS 44 (1908).

The supreme court has jurisdiction to determine questions of constitutional and fundamental law even though raised in an election contest pertaining to seats in the general assembly. McGann v. Bd. of Elections, 85 R.I. 223 , 129 A.2d 341, 1957 R.I. LEXIS 140 (1957).

— Review Upon Exceptions.

Jurisdiction of supreme court to review by exception decision of trial justice on motion for new trial was conferred by statute and not by this section, as a review of a verdict based on conflicting testimony is not a question of law. Surmeian v. Simons, 42 R.I. 334 , 107 A. 229, 1919 R.I. LEXIS 42 (1919).

— Waiver of Rights.

Parties in a proceeding in superior court may agree to reference to an auditor and waive appellate rights so that approval of auditor’s report by the superior court is final and not subject to review. Doane v. Simmons, 31 R.I. 530 , 77 A. 775, 1910 R.I. LEXIS 89 (1910); Broley v. Superior Court, 42 R.I. 253 , 107 A. 104, 1919 R.I. LEXIS 37 (1919).

— Wills.

In will construction under G.L. 1923, ch. 339, § 35 [former § 9-24-28 ], where not all interested persons were parties, supreme court held control but remanded to amend so as to bring in necessary parties. Industrial Trust Co. v. Wilson, 58 R.I. 378 , 192 A. 821, 1937 R.I. LEXIS 55 (1937).

— Workers’ Compensation Cases.

Final revisory and appellate jurisdiction on all questions of law and equity did not require supreme court to review sufficiency of the evidence in workers’ compensation proceedings. Jillson v. Ross, 38 R.I. 145 , 94 A. 717, 1915 R.I. LEXIS 47 (1915).

Provision in P.L. 1912, ch. 831, Art. III, § 6 [see § 28-35-30 ] that findings of fact by superior court in workers' compensation proceedings should be conclusive in the absence of fraud was not unconstitutional as in conflict with final revisory appellate jurisdiction of supreme court, but was merely an exception to the appellate jurisdiction provided by statute in most other cases. Jillson v. Ross, 38 R.I. 145 , 94 A. 717, 1915 R.I. LEXIS 47 (1915).

Habeas Corpus.

In an application for a writ of habeas corpus, whenever an evidentiary hearing would be required, the application should be made to the superior court as the supreme court is so set up as to be at a disadvantage, applicable to litigants as well as to the court, whenever the taking of testimony is an integral part of the proceedings. Lonardo v. Langlois, 98 R.I. 493 , 205 A.2d 19, 1964 R.I. LEXIS 202 (1964).

Jurisdiction.

A special act of the legislature conferring jurisdiction upon the supreme court to admit a tort debtor to the poor debtor’s oath did not violate this provision, since the justices were empowered under former clause to exercise the additional jurisdiction so conferred. In re Nichols, 8 R.I. 50 , 1864 R.I. LEXIS 9 (1864).

The provisions of P.L. 1887, ch. 634, § 15, giving power to the district courts to condemn prohibited liquor, did not violate former provision, since the right of jury trial was reserved. State v. Fitzpatrick, 16 R.I. 60 , 11 A. 773, 1888 R.I. LEXIS 4 (1888).

Courts of probate had no jurisdiction over the payment of legacies, as such important power cannot rest upon implication or custom and usage. Williams v. Herrick, 18 R.I. 120 , 25 A. 1099, 1893 R.I. LEXIS 5 (1893).

District Court lacks jurisdiction to hear the State’s appeal of a decision of the appeals panel of the Traffic Tribunal; although the General Assembly provided that the chief magistrate can enact rules to regulate the practice, procedure, and business within that tribunal, R.I. Gen. Laws §§ 8-6-2 and 8-8.2-1 , the Traffic Tribunal cannot use its rules to expand its own jurisdiction, and the magistrate does not have the authority to promulgate a rule that expands the jurisdiction of the District Court because that is a right that is solely within the province of the General Assembly. State v. Robinson, 972 A.2d 150, 2009 R.I. LEXIS 81 (R.I. 2009).

As a retirement board’s petition seeking to confirm its decision to reduce a former city employee’s pension was adjudicated before enactment of R.I. Gen. Laws § 36-10.1-5 , which gave the superior court jurisdiction over such actions, the court lacked subject-matter jurisdiction and its judgment confirming the board’s decision was void; but as it had jurisdiction under § 36-10.1-5 by the time the appeal was heard, on remand it could conduct further proceedings or could re-enter its previous judgment. Ret. Bd. of the Emples. Ret. Sys. of Providence v. Corrente, 111 A.3d 301, 2015 R.I. LEXIS 34 (R.I. 2015).

As a city retirement board’s petition seeking to confirm its decision to reduce a former city employee’s pension was brought under an ordinance providing for the reduction of pensions of city employees convicted of charges stemming from their employment, the matter did not properly invoke either the equity or the declaratory judgment jurisdiction of the superior court. Ret. Bd. of the Emples. Ret. Sys. of Providence v. Corrente, 111 A.3d 301, 2015 R.I. LEXIS 34 (R.I. 2015).

Practice of Law.

The Professional Service Corporation Act (§§ 7-5.1-1 to 7-5.1-12 ) does not interfere with the inherent power of the supreme court relating to the practice of law. In re Rhode Island Bar Ass'n, 106 R.I. 752 , 263 A.2d 692, 1970 R.I. LEXIS 985 (1970).

Prerogative Writs.

This provision does not vest exclusive power in the supreme court to issue prerogative writs. Higgins v. Tax Assessors, 27 R.I. 401 , 63 A. 34, 1905 R.I. LEXIS 106 (1905).

C.P.A. 1905, § 12 [§ 8-2-16 ], giving the superior court concurrent jurisdiction with the supreme court to issue prerogative writs, does not violate provision of this section granting power to the supreme court to issue prerogative writs, as C.P.A. 1905, § 328 [§ 9-24-1 ] expressly provides that any party aggrieved in a proceeding for a prerogative writ may appeal to the supreme court. Higgins v. Tax Assessors, 27 R.I. 401 , 63 A. 34, 1905 R.I. LEXIS 106 (1905).

The supreme court in the exercise of its jurisdiction to issue writs is not confined to any narrow definition of a particular writ but may adapt or modify any writ suitable for the matter in hand in order to further justice and secure due administration of law. Hyde v. Superior Court, 28 R.I. 204 , 66 A. 292, 1907 R.I. LEXIS 20 (1907).

Under this section and under G.L. 1909, ch. 272, § 2 [§ 8-1-2 ] giving the court power to “issuance prerogative writs . . . necessary for the furtherance of justice,” the supreme court had the power to issue a writ restraining the deputy secretary of state from issuing a commission as district judge and restraining candidate from acting as judge under such commission when candidate was found not to have been elected under the law to the office in question. Carpenter v. Sprague, 45 R.I. 29 , 119 A. 561, 1923 R.I. LEXIS 9 (1923).

To make effective the revisory and appellate jurisdiction of the supreme court of inferior tribunals, this provision gives that court the power to issue prerogative writs, such as certiorari, which is not confined to the common-law writ of certiorari, but includes as well whatever extension is necessary to a proper implementation of the court’s broad and complete supervisory powers and is appropriate where there is an alleged abuse or error which, in the absence of an express method for obtaining review, might otherwise be perpetuated. Bassi v. Zoning Bd. of Review, 107 R.I. 702 , 271 A.2d 210, 1970 R.I. LEXIS 829 (1970).

The authority of the supreme court to issue prerogative writs under this provision includes the power to grant bail pending review of a habeas petition that challenges the validity of a final conviction. State v. Feng, 421 A.2d 1258, 1980 R.I. LEXIS 1840 (R.I. 1980).

The power to issue prerogative writs is not confined by any narrow definition of a particular writ, and the Supreme Court has jurisdiction to adapt, to modify, or to frame new writs to meet the needs of the judicial system. This jurisdiction provides the court with the flexibility to further justice when the means are not provided for in current statutes. Estate of Sherman v. Almeida, 610 A.2d 104, 1992 R.I. LEXIS 148 (R.I. 1992).

— Certiorari.

Supreme court could grant writ of certiorari to state to review order of trial court to return evidence seized by the state in criminal case, where trial court assumed jurisdiction to act without receiving any legally competent evidence, since review does not go to the merits. State v. Coleman, 58 R.I. 6 , 190 A. 791, 1937 R.I. LEXIS 2 (1937).

A writ of certiorari is broader than a writ of error and is not a writ of strict right but will be issued by the supreme court in the exercise of its general revisory and appellate jurisdiction to promote justice and prevent harm when no other remedy is available. State v. Coleman, 58 R.I. 6 , 190 A. 791, 1937 R.I. LEXIS 2 (1937).

The writ of certiorari is an original prerogative writ to review the action of an inferior court taken without jurisdiction or in excess of it and does not go to the merits. State v. Coleman, 58 R.I. 6 , 190 A. 791, 1937 R.I. LEXIS 2 (1937); White v. White, 70 R.I. 48 , 36 A.2d 661, 1944 R.I. LEXIS 14 (1944); Levy v. Gerhard, 74 R.I. 288 , 60 A.2d 494, 1948 R.I. LEXIS 81 (1948).

The appeal of a municipality from action of a family court in dismissing its petition to declare a juvenile wayward was in effect a petition for certiorari, pursuant to which the supreme court reversed such action by the family court where it was taken without competent evidence in the record to support it. In re Little, 103 R.I. 301 , 237 A.2d 325, 1968 R.I. LEXIS 796 (1968).

Tenured teachers review status from superior court ruling, in the absence of statutory provision was by way of writ of certiorari to the Supreme Court, as, in the cases relating to police discipline and zoning, and plantiffs’ notice of appeal was treated as the equivalent of such a writ and such reviews in the future will be had by way of a petition for a common law certiorari. Schiavulli v. School Comm., 114 R.I. 443 , 334 A.2d 416, 1975 R.I. LEXIS 1436 (1975).

R.I. Gen. Laws § 45-53-5 does not provide for a direct appeal from an adverse substantial completeness determination made by the Rhode Island State Housing Appeals Board pursuant to R.I. Gen. Laws § 45-53-6(f)(1) ; however, pursuant to R.I. Const. art. 10, § 2 , relief may be sought in the Rhode Island Supreme Court by way of a writ of certiorari. New Harbor Vill., LLC v. Town of New Shoreham Zoning Bd. of Review, 894 A.2d 901, 2006 R.I. LEXIS 39 (R.I. 2006).

— Mandamus.

A writ of mandamus to compel a corporation to transfer stock on its books will be available only when there is no other adequate remedy at law and justice can be done only by such mandamus, and this section and G.L. 1909, ch. 272, § 2 [§ 8-1-2 ] do not change this rule. Rowe v. Border City Garnetting Co., 40 R.I. 394 , 101 A. 223, 1917 R.I. LEXIS 49 (1917).

Quorum of Justices.

P.L. 1912, ch. 795, § 35 [former § 39-5-15], which gave to a single justice when supreme court is not in session power to suspend the stay of an order of public utilities commission, did not violate quorum provisions of this section, because such jurisdiction is interlocutory in nature and the general assembly could confer such power in any tribunal it saw fit. Public Utils. Comm'n v. Rhode Island Co., 42 R.I. 379 , 107 A. 871 (1919).

Scope and Effect.

The scope of this provision is to retain the supremacy of the supreme court as the ultimate judicial power in the state and to give it the instruments required to make its supervisory jurisdiction effectual. Higgins v. Tax Assessors, 27 R.I. 401 , 63 A. 34, 1905 R.I. LEXIS 106 (1905).

The effect of this provision is to give to the general assembly control over the distribution of judicial power among the courts established by it except the specified powers reserved to the supreme court. Higgins v. Tax Assessors, 27 R.I. 401 , 63 A. 34, 1905 R.I. LEXIS 106 (1905).

The Court and Practice Act of 1905, prepared by a commission operating under a limited legislative directive to determine what additions to and amendments of the laws of the state were required to be made in order to carry into effect this provision, in the absence of changes specifically brought to the attention of the legislature and thereafter formally enacted as separate legislation, will be presumed not to affect or change existing law and to carry with it the same meaning as the original enactments even though existing language therein was rephrased or excised therefrom. Briggs Drive, Inc. v. Moorehead, 103 R.I. 555 , 239 A.2d 186, 1968 R.I. LEXIS 829 (1968).

Where the legislature took no action on the problem of whether the current practice of holding violation of probation and deferred sentencing agreement hearings (see §§ 12-19-9 , 12-19-19 ) prejudiced defendants’ rights, the supreme court proceeded under the broad grant of supervisory jurisdiction over inferior tribunals conferred upon it by this provision and § 8-1-2 to decide the question. State v. DeLomba, 117 R.I. 673 , 370 A.2d 1273, 1977 R.I. LEXIS 1738 (1977).

§ 3. Advisory opinions by supreme court.

The judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.

Law Reviews.

For article, “The Jurisprudence of the Advisory Opinion Process in Rhode Island,” see 2 R.W.U.L. Rev. 207 (1997).

NOTES TO DECISIONS

Advisory Nature of Opinion.

Opinions of the supreme court under this section are merely advisory opinions. In re Opinion to Governor, 41 R.I. 209 , 103 A. 513 (1918); In re Opinion of Justices, 51 R.I. 322 , 154 A. 647, 1931 R.I. LEXIS 46 (1931); DiPrete v. Vallone, 70 R.I. 286 , 38 A.2d 769, 1944 R.I. LEXIS 58 (1944).

Where the supreme court has been requested to given written opinion upon questions involving the scope of the authority of the registrar of motor vehicles to revoke or suspend the license of the operator of a motor vehicle under the provisions of §§ 31-11-15 , 31-11-17 , 31-11-18 , 31-11-21 and 31-11-25 (see now §§ 31-11-6 , 31-11-7 and 31-11-15 ) and where the court found that all basic questions were directly or indirectly involved in litigation pending in the superior court such court could decline to express any opinion at the time upon the questions propounded, however the attorney-general could obtain a certification of such questions for the court’s determination whereupon the court would have the benefit of briefs and arguments by adversary counsel and its determination would not be a mere advisory opinion but a binding decision having the force and effect of law. Opinion to Governor, 88 R.I. 392 , 149 A.2d 341, 1959 R.I. LEXIS 24 (1959); Opinion to House of Representatives, 88 R.I. 396 , 149 A.2d 343, 1959 R.I. LEXIS 25 (1959).

An advisory opinion would not constitute a decision of the supreme court, would not finally determine a question and would have no binding effect upon any person whose legal rights might be involved, but, on the other hand, a final decision and determination of the question would result if it were properly brought before the court in a litigated case. Opinion to Governor, 88 R.I. 392 , 149 A.2d 341, 1959 R.I. LEXIS 24 (1959); Opinion to House of Representatives, 88 R.I. 396 , 149 A.2d 343, 1959 R.I. LEXIS 25 (1959).

In performing the constitutional function of rendering a purely advisory opinion, the supreme court judges do not speak ex cathedra, from the chair of judgment, but only as consultors somewhat like the jurisconsults under the Roman law, it not being an exercise of supreme court’s judicial power. Opinion to Governor, 93 R.I. 262 , 174 A.2d 553, 1961 R.I. LEXIS 129 (1961).

The provision of this section is mandatory, when the inquiry falls within the purview thereof; however, it does not obligate the judges of the supreme court as the judicial department of the state but rather in their capacity as individual judges of the court; and, therefore, action pursuant thereto does not constitute an exercise of the judicial power. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

The provision of this section requires that an opinion given on a question of law be exclusory in effect and intends to exclude opinions which involve directly or indirectly an exercise of the fact-finding power of the supreme court. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

Where the judges of the supreme court have given advisory opinions on questions of law, out of concern for the common good, to the co-ordinate branches of government, that relate only indirectly to the consistency with pertinent constitutional provisions, they scrupulously avoided violation of the principle of separation of powers, because of a conviction that this doctrine is not an absolute bar to enlarging the area of advisory opinions, but such a liberal application of this section is not intended to substitute the advisory opinion for litigation in order to obtain rulings upon the effect of law whether enacted or proposed. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

While an advisory opinion rendered by the supreme court is entitled to respect, it is advisory only and is without weight as a legal precedent. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651 , 254 A.2d 426, 1969 R.I. LEXIS 802 (1969).

It is settled that in giving advisory opinions the Supreme Court will not give opinions which require directly or indirectly, an exercise of the fact-finding power of the court, inasmuch as the justices of this court, in so doing, are acting as individuals and not exercising the judicial power of the state. Advisory Opinion to the Governor, 113 R.I. 586 , 324 A.2d 641, 1974 R.I. LEXIS 1213 (1974).

Clarity of Question.

An opinion of the judges of the supreme court should be given only in response to a question so clearly stated that there can be no possibility of creating confusion. Opinion to Senate, 87 R.I. 56 , 137 A.2d 527, 1958 R.I. LEXIS 4 (1958).

In the circumstances it was deemed unwise to venture an opinion as to whether a proposed bill was a proper delegation of the powers of the general assembly when the supreme court justices had not been informed of the full contents of the proposed bill and also as to what provisions of the state constitution that were giving the representatives concern regarding the validity of the bill. Opinion to House of Representatives, 93 R.I. 465 , 176 A.2d 393, 1962 R.I. LEXIS 3 (1962).

The provision of this section requires that an opinion given on questions of law be exclusory in effect primarily to exclude opinions given on questions of law that do not challenge the consistency of law, enacted or proposed, with pertinent constitutional provisions. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

Where questions propounded are of mixed fact and law, they are not within the purview of this section, and the manner in which they can best be recast as questions of law involves decisions that the judges of the supreme court are not prepared to make; such decisions will best be made after due consideration of the scope of the judges’ authority to give advisory opinions and the value of such opinions on the rules of law contemplated in the questions when not given in the context of pertinent fact situations. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

Duty to Render Opinion.

Since this section expressly imposes the duty on the judges of the supreme court to “give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly,” the court is obliged to respond even though its opinion may carry no mandate. Opinion to Governor, 93 R.I. 262 , 174 A.2d 553, 1961 R.I. LEXIS 129 (1961).

Fact-Finding Power.

In rendering an advisory opinion, the Supreme Court cannot exercise its fact-finding power. In re Request for Advisory Opinion Regarding House Bill 83-H-5640, 472 A.2d 301, 1984 R.I. LEXIS 464 (R.I. 1984).

Questions Reviewable.

The supreme court is constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the questions propounded concern the constitutionality of existing statutes which require implementation by the chief executive. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

A question or questions propounded to the Supreme Court must have some relationship to the official duties of the coordinate branch propounding the questions. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

The Supreme Court is required to respond to a governor’s request for an advisory opinion only when the question propounded concerns the constitutionality of existing statutes which require implementation by the chief executive, and when it has a bearing upon a present constitutional duty awaiting performance by that executive. In re Advisory Opinion to the Governor, 732 A.2d 55, 1999 R.I. LEXIS 152 (R.I. 1999).

Refusal of Advisory Opinion.

Where a question does not direct attention of supreme court to any particular provisions of federal or state constitutions which might be impinged upon by proposed legislation if it is enacted into law, the supreme court would decline to render an advisory opinion on such question. Advisory Opinion to Senate, 108 R.I. 551 , 277 A.2d 750, 1971 R.I. LEXIS 1305 (1971).

Where questions propounded by the governor to the judges of supreme court concerning the qualification for the appointment of city manager had no relationship to the official duties of the coordinate branch propounding the questions and absent any standing either under the constitution or any statute to seek resolution of the doubts by the city council members through the governor, the giving of opinions would be grossly gratuitous and an inexcusable participation by the judges in the affairs of the municipality. Opinion to Governor, 109 R.I. 289 , 284 A.2d 295, 1971 R.I. LEXIS 1056 (1971).

Where questions propounded by the House of Representatives were involved in litigation pending in the Superior Court, the Supreme Court chose to refrain from rendering an advisory opinion during the pendency of the litigation. Opinion to House of Representatives, 433 A.2d 944, 1981 R.I. LEXIS 1420 (R.I. 1981).

The Supreme Court declined to give an advisory opinion regarding the constitutionality of two bills since the request failed to point to particular constitutional provisions that might be violated by the proposed legislation and therefore had too broad a sweep to fall within the purview of the court’s constitutional obligation to render advisory opinions. Advisory Opinion to House of Representatives, 468 A.2d 258, 1983 R.I. LEXIS 1108 (R.I. 1983).

The constitutional requirement that judges of the Supreme Court give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly is mandatory in nature when the inquiry falls within the purview thereof. In re Advisory Opinion to Governor, 483 A.2d 1078, 1984 R.I. LEXIS 625 (R.I. 1984).

Supreme Court refused the Governor’s request for an advisory opinion on the legality of proposed legislation involving a consolidated rental car facility planned by the state, because resolution of the issues would require it to engage in forbidden fact finding; it further held that filing of a lawsuit by an affected party would not always preclude it from rendering an advisory opinion. In re Request for Advisory Opinion, 812 A.2d 789, 2002 R.I. LEXIS 231 (R.I. 2002).

In a slip and fall suit against a city and the State, the State lacked standing to appeal the trial court’s grant of summary judgment to the city because, not having filed a cross-claim against the city, the State was not a “party aggrieved by a final judgment” within the meaning of R.I. Gen. Laws § 9-24-1 ; the city and State’s request that the high court overlook the State’s lack of standing and decide the case on the merits was effectively a request for an improper advisory opinion. Lombardi v. City of Providence, 69 A.3d 846, 2013 R.I. LEXIS 122 (R.I. 2013).

Requesting Party.

The Supreme Court will not render an advisory opinion except upon the written request of the Governor or (not and) of either House of the General Assembly. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

Requests by Attorney General.

Under § 9-24-27 the attorney-general may obtain the certification of questions of such pressing public interest and importance that they should be decided without the necessity of awaiting the outcome of pending litigation, for the supreme court’s determination, in which case the court would have the benefit of briefs and arguments by adversary counsel and its determination would not be a mere advisory opinion, but a binding decision having the force and effect of law. Opinion to Governor, 88 R.I. 392 , 149 A.2d 341, 1959 R.I. LEXIS 24 (1959); Opinion to House of Representatives, 88 R.I. 396 , 149 A.2d 343, 1959 R.I. LEXIS 25 (1959).

Requests by General Assembly.

An opinion of the supreme court given on request of senate upon questions of law while entitled to respect is not a decision and therefore is not a precedent, particularly since without aid of adversary proceedings and without sufficient time to consider. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

Supreme court would not render advisory opinion under this section on signed sworn petition of majority of house claiming presiding officer denied rights to function as a house to present request, where they did not formally in meeting assembled vote for such request, since court assumes officer when notified of duty will follow mandatory direction of R.I. Const., Art. IV, § 8 (now see R.I. Const., Art. 6, Sec. 8 ) and allow roll call on vote for request. To Certain Members of House of Representatives in Gen. Assembly, 58 R.I. 51 , 191 A. 269, 1937 R.I. LEXIS 14 (1937).

This provision does not require supreme court to answer every legislative doubt and difficulty that might present itself during the proceedings of the general assembly and which might be propounded from either house, particularly in light of normal method of questioning by litigated cases. To Certain Members of Senate in Gen. Assembly, 58 R.I. 142 , 191 A. 518, 1937 R.I. LEXIS 22 (1937).

Supreme court would not give advisory opinion where issue presented was in regard to right to roll call on senate legislation no longer pending, since legislature, impliedly including petitioning senators, had adjourned shortly after receipt of the question by supreme court. To Certain Members of Senate in Gen. Assembly, 58 R.I. 142 , 191 A. 518, 1937 R.I. LEXIS 22 (1937).

Adjournment of the general assembly sine die before a question asked by one of the houses has been answered renders the question moot unless renewed by a subsequent session. Opinion to Senate, 85 R.I. 317 , 131 A.2d 232, 1957 R.I. LEXIS 25 (1957); Opinion to House of Representatives, 85 R.I. 319 , 131 A.2d 234, 1957 R.I. LEXIS 26 (1957).

When requirement for advisory opinions is viewed in the light of the constitutional mandate that the general assembly enact laws to carry the constitution into effect, it must be held to contemplate only that the judges of this court give the general assembly their opinions as to the consistency of proposed legislation with particular constitutional provisions and does not include opinions as to the constitutionality of laws already enacted by the general assembly. Opinion to House of Representatives, 99 R.I. 377 , 208 A.2d 126, 1965 R.I. LEXIS 449 (1965); Opinion to House of Representatives, 100 R.I. 345 , 216 A.2d 124, 1966 R.I. LEXIS 438 (1966).

The advisory opinion requirement of this section viewed within the context of the separation of powers mandated by the constitution contemplates only that opinions be given the general assembly on the constitutionality of proposed legislation and that questions concerning the validity of previously-enacted legislation are the exclusive prerogative of the executive. Advisory Opinion to House of Representatives, 107 R.I. 77 , 264 A.2d 920, 1970 R.I. LEXIS 740 (1970).

Where a branch of the General Assembly propounds a question to the supreme court for an advisory opinion under this section and adjourns sine die before receiving the answer of the court, the court was not required to give an opinion to the next succeeding General Assembly on the matter. In re Advisory Opinion to House of Representatives, 108 R.I. 151 , 272 A.2d 925, 1971 R.I. LEXIS 1238 (1971).

The supreme court rendered an advisory opinion to the house of representatives on the constitutionality of a proposed legislative reimbursement plan although the general assembly had adopted a joint resolution of adjournment where it was not an adjournment sine die, and each chamber adjourned subject to recall. In re Advisory Opinion to House of Representatives, 485 A.2d 550, 1984 R.I. LEXIS 635 (R.I. 1984).

Request by the leaders of each House of the General Assembly for an advisory opinion, without formal action taken in a collective fashion by either branch of the General Assembly in petitioning the court, failed to meet the standard that only a formal and collective action by a house can petition the Supreme Court for an advisory opinion. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

Requests by Governor.

Supreme court would examine request of governor for written opinion on questions of law in alternative, as assumedly intended, although written in conjunctive. In re Opinion to Governor, 55 R.I. 56 , 178 A. 433, 1935 R.I. LEXIS 6 (1935).

The constitution by its express language imposes a mandatory duty on the judges of the supreme court to answer questions of law upon request of the governor or either house of the general assembly but this section does not impose that duty on the Supreme Court as a judicial department of the state government. Opinion to Governor, 89 R.I. 329 , 153 A.2d 168, 1959 R.I. LEXIS 100 (1959).

Where most if not all of the questions propounded by the governor in his letter were involved either directly or indirectly in litigation then pending, the supreme court could not consistently with its established practice answer his question; but, when and if the pending litigation was disposed of, should there remain unresolved any questions of law similar to those propounded by the governor in his letter, the court would of course comply with any future request of the governor. Opinion to Governor, 95 R.I. 180 , 185 A.2d 446, 1962 R.I. LEXIS 168 (1962).

Where the judges of the supreme court are acting as individuals, in answering an inquiry from the governor or the legislature, they act as individuals and not as the judicial branch of the state government, and when so acting are without power to determine facts either on the evaluation of evidence as by way of evidentiary presumption, as that power inheres in the supreme court acting as the judicial branch of the state government. Opinion to Governor, 96 R.I. 358 , 191 A.2d 611, 1963 R.I. LEXIS 141 (1963).

The court will not resort to the fact-finding process for purposes connected with its constitutional obligation to furnish advisory opinions under this section. Opinion to Governor, 101 R.I. 203 , 221 A.2d 799, 1966 R.I. LEXIS 375 (1966).

The Supreme Court only advises the chief executive in those instances when the questions propounded have a bearing upon a present constitutional duty presently awaiting performance by the governor. In re Request for Advisory Opinion Regarding House Bill 83-H-5640, 472 A.2d 301, 1984 R.I. LEXIS 464 (R.I. 1984).

Upon request, the judges of the Supreme Court are constitutionally obligated to give their advice to the governor when the question or questions propounded raise an issue regarding the constitutionality of existing statutes. In re Advisory Opinion to Governor, 483 A.2d 1078, 1984 R.I. LEXIS 625 (R.I. 1984).

An advisory opinion requested by the governor was issued notwithstanding pending litigation because the situation presented a threat to the governor’s ability to persuade qualified persons to assume positions of public trust. See In re Advisory Opinion to Governor, 504 A.2d 456, 1986 R.I. LEXIS 396 (R.I. 1986).

The Supreme Court will only advise the Governor in those instances in which the questions propounded have a bearing upon a present constitutional duty awaiting performance by the Governor. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

§ 4. State court judges — Judicial selection.

The governor shall fill any vacancy of any justice of the Rhode Island Supreme Court by nominating, on the basis of merit, a person from a list submitted by an independent non-partisan judicial nominating commission, and by and with the advice and consent of the senate, and by and with the separate advice and consent of the house of representatives, shall appoint said person as a justice of the Rhode Island Supreme Court. The governor shall fill any vacancy of any judge of the Rhode Island Superior Court, Family Court, District, Workers’ Compensation Court, Administrative Adjudication Court, or any other state court which the general assembly may from time to time establish by nominating on the basis of merit, a person from a list submitted by the aforesaid judicial nominating commission, and by and with the advice and consent of the senate, shall appoint said person to the court where the vacancy occurs. The powers, duties, and composition of the judicial nominating commission shall be defined by statute.

History of Section

A proposed amendment to Article X, Section 4 of the R.I. Constitution by Joint Resolution 116 of 1994 was approved by a majority of the electorate voting in a statewide election on November 8, 1994.

Law Reviews.

For essay, “Rhode Island’s New Judicial Merit Selection Law,” see 1 R.W.U.L. Rev. 63 (1996).

For essay, “Rhode Island’s Judicial Nominating Commission: Can ‘Reform’ Become Reality?”, see 1 R.W.U.L. Rev. 87 (1996).

Cross References.

Judicial nominating commission, § 8-16.1-2 .

NOTES TO DECISIONS

Appointment.

Because justices of the Supreme Court of Rhode Island were no longer elected, they were no longer subject to the prohibition in R.I. Const. art. III, § 6 against serving another government; therefore, a private citizen could not proceed with a petition in equity in the nature of quo warranto challenging the chief justice’s right to remain in office after agreeing to serve on a military review panel as part of the federal government’s war on terror. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

Declaration of Vacancy.

The “annual session for the election of public officers” has been eradicated by constitutional amendment; therefore, the legislature’s power to remove justices of the Supreme Court pursuant to this section has been extinguished. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1986 R.I. LEXIS 475 (R.I. 1986).

§ 5. Tenure of supreme court justices.

Justices of the supreme court shall hold office during good behavior.

History of Section.

The majority of the electorate approved the separation of powers amendment in a statewide referendum on November 2, 2004; and this result was certified by the Board of Elections on November 23, 2004.

Law Reviews.

For essay, “Rhode Island’s New Judicial Merit Selection Law,” see 1 R.W.U.L. Rev. 63 (1996).

For essay, “Rhode Island’s Judicial Nominating Commission: Can ‘Reform’ Become Reality?”, see 1 R.W.U.L. Rev. 87 (1996).

NOTES TO DECISIONS

Term of Office.

Because justices of the Supreme Court of Rhode Island were no longer elected, they were no longer subject to the prohibition in R.I. Const. art. III, § 6 against serving another government; therefore, a private citizen could not proceed with a petition in equity in the nature of quo warranto challenging the chief justice’s right to remain in office after agreeing to serve on a military review panel as part of the federal government’s war on terror. McKenna v. Williams, 874 A.2d 217, 2005 R.I. LEXIS 113 (R.I. 2005).

§ 6. Judges of supreme court — Compensation.

The judges of the supreme court shall receive a compensation for their services, which shall not be diminished during their continuance in office.

NOTES TO DECISIONS

Salaries of Inferior Court Judges.

The salaries of supreme court judges are expressly protected by the Constitution of the state, but those for judges of the inferior courts established by the legislature are not. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

§ 7. Wardens and justices of the peace.

The towns of New Shoreham and Jamestown may continue to elect their wardens as heretofore. The other towns and the city of Providence may elect such number of justices of the peace, resident therein, as they may deem proper. The jurisdiction of said justices and wardens shall be regulated by law. The justices shall be commissioned by the governor.

Cross References.

Appointment of justices of the peace, § 42-30-1 .

NOTES TO DECISIONS

Election of Wardens.

An act providing for the biennial election of members of the town council and the members of the school committee of the town of New Shoreham by numbered places did not, by implication, repeal the 1912 law which, together with this section of the constitution, governs the election of wardens. Whitman v. Mott, 114 R.I. 530 , 336 A.2d 836, 1975 R.I. LEXIS 1450 (1975).

Article XI Of Impeachments

§ 1. Power to impeach — Procedure — Suspension from office impeachment.

The house of representatives shall have the sole power of impeachment. A resolution of impeachment shall not be considered unless it is signed by one-quarter (1/4) of the members. For the purposes of impeachment, the general assembly and the committees thereof shall have the power to compel the attendance of witnesses and production of documents. A vote of two-thirds (2/3) of the members shall be required for an impeachment of the governor. Any officer impeached shall thereby be suspended from the office until judgment in the case shall have been pronounced.

History of Section.

Proposed amendments to Article XI, Section 1 by Joint Resolutions 184 and 193 of 1994 were approved by a majority of the electorate voting in a statewide election on November 8, 1994.

Compiler's Notes.

The second and third sentences were new in the 1986 Constitution.

The 1994 amendment substituted “one quarter (1/4) of the members” for “twenty-five members” in the second sentence and “two-thirds (2/3) of the members” for “sixty-seven members” in the fourth sentence.

Comparative Provisions.

Impeachment:

Conn. 1965 Const., art. Ninth, § 1.

Mass. Const. Pt. 2, C. 1, § 2, Art. 8.

§ 2. Trial of impeachments.

All impeachments shall be tried by the senate; and when sitting for that purpose, they shall be under oath or affirmation. No person shall be convicted except by vote of two-thirds of the members elected. When the governor is impeached, the chief or presiding justice of the supreme court, for the time being, shall preside, with a casting vote in all preliminary questions.

Comparative Provisions.

Trial of impeachments:

Conn. 1965 Const., art. Ninth, § 2.

Mass. Const. Pt. 2, C. 1, § 2, Art. 8; Pt. 2, C. 1, § 3, Art. 6.

§ 3. Officers subject to impeachment — Grounds and effect of conviction.

The governor and all other executive and judicial officers shall be liable to impeachment. The governor or any other executive officer shall be removed from office if, upon impeachment, such officer shall be found incapacitated or guilty of the commission of a felony or crime of moral turpitude, misfeasance or malfeasance in office. Judges shall be removed if, upon impeachment, they shall be found incapacitated or guilty of the commission of a felony or crime of moral turpitude, misfeasance or malfeasance in office or violation of the canons of judicial ethics. Judgment of incapacity or guilt in a case of impeachment shall not extend further than to removal from office. The person convicted shall, nevertheless, be liable to indictment, trial and punishment, according to laws.

Compiler’s Notes.

The second through fifth sentences were new in the 1986 Constitution.

Comparative Provisions.

Officers subject to impeachment:

Conn. 1965 Const., art. Ninth, § 3.

Mass. Const. Pt. 2, C. 1, § 2, Art. 8.

NOTES TO DECISIONS

Executive Officers of State.

Section 4, cl. 2, of charter of Central Falls, providing for removal for cause of members of paid police department by board of aldermen, did not violate this section, as impeachment was not intended to apply to officers elected by cities and towns. Lowrey v. Mayor & Bd. of Aldermen, 23 R.I. 354 , 50 A. 639, 1901 R.I. LEXIS 148 (1901).

Action of mayor in discharging for misfeasance members of board of canvassers and registration, conducting hearing and refusing to reinstate under P.L. 1939, ch. 672, is not unconstitutional under this section, since members were not “executive officers of the state” subject to impeachment. Molloy v. Collins, 66 R.I. 251 , 18 A.2d 639, 1941 R.I. LEXIS 25 (1941).

Removal by Other Means.

Even though there is no express provision for the removal of an officer other than by impeachment, there is clear implication that they can be removed by other means. Gorham v. Robinson, 57 R.I. 1 , 186 A. 832, 1936 R.I. LEXIS 66 (1936).

Article XII Of Education

§ 1. Duty of general assembly to promote schools and libraries.

The diffusion of knowledge, as well as of virtue among the people, being essential to the preservation of their rights and liberties, it shall be the duty of the general assembly to promote public schools and public libraries, and to adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education and public library services.

Compiler’s Notes.

The language “and public libraries and “and public library services” was new in the 1986 Constitution.

Law Reviews.

Daniel W. Morton-Bentley, Rhode Island’s School Funding Challenges in Historical Context, 24 Roger Williams U. L. Rev. 272 (2019).

NOTES TO DECISIONS

Construction.

The right of the general assembly to provide for the busing of students is not limited to public school pupils since this section not only provides that the general assembly shall promote public schools but also provides that it shall adopt all means deemed necessary and proper to secure to the people the advantages and opportunities of education. Members of Jamestown Sch. Comm. v. Schmidt, 122 R.I. 185 , 405 A.2d 16, 1979 R.I. LEXIS 2144 (1979).

This section confers no fundamental and constitutional right to education, nor does it guarantee an “equal, adequate, and meaningful education.” City of Pawtucket v. Sundlun, 662 A.2d 40, 1995 R.I. LEXIS 192 (R.I. 1995).

To the extent a private school contributed to the effort to secure to the people the advantages and opportunities of education, under R.I. Const. art. XII, § 1 , it discharged a public duty, but, absent a showing of substantial or significant state involvement in the school’s decision-making process, state action was not implicated. Gorman v. St. Raphael Acad., 853 A.2d 28, 2004 R.I. LEXIS 155 (R.I. 2004).

Abolition of School Districts.

P.L. 1903, ch. 1101, providing for abolition of school districts and vesting same in the towns, is within the broad power of this article making it the duty of the legislature to promote public schools and to take all steps necessary to effect that purpose. In re School Comm., 26 R.I. 164 , 58 A. 628, 1904 R.I. LEXIS 39 (1904).

Control of City Employee.

Although education is a state function under this article, a school teacher employed by the city school committee is a city employee and is thus subject to the provision of the city charter prohibiting city employees from holding elective office. Cummings v. Godin, 119 R.I. 325 , 377 A.2d 1071, 1977 R.I. LEXIS 1916 (1977).

Exclusive Authority of Legislature.

Where the governor issued an executive order purporting to give the commission for human rights jurisdiction over the employment practices of the University of Rhode Island, a nonprofit educational corporation, which order directly conflicted with the pre-1974 provision of § 28-5-6(B) (see now § 28-5-6(7) ) which excluded such institutions from the operation of the Fair Employment Practices Act, the governor exceeded his authority, since this article expressly reserves to the legislature sole responsibility in the field of education. Chang v. University of R.I., 118 R.I. 631 , 375 A.2d 925, 1977 R.I. LEXIS 1503 (1977).

Complaint that the legislatively enacted school funding formula failed to allocate adequate resources to less affluent communities was more appropriately addressed to the General Assembly because it was charged with both the power and the duty to address their concerns; while the funding system was not beneficial to students in two public schools, the General Assembly had exclusive authority to regulate the allocation of resources for public education. Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 2014 R.I. LEXIS 52 (R.I. 2014).

Rhode Island Constitution imposes an affirmative duty upon the General Assembly to promote public schools, and it is not the supreme court’s function, however, to explore hypothetical scenarios beyond the facts that are currently before it on review; the separation of powers amendments did not impair the General Assembly’s broad discretion in adopting all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education. Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 2014 R.I. LEXIS 52 (R.I. 2014).

Financing.

Rhode Island’s statutory scheme for financing public education, § 16-7-20 and former § 16-7-20.4 , did not violate either this section or the equal protection provision of art. I, § 2 of the R.I. Constitution. City of Pawtucket v. Sundlun, 662 A.2d 40, 1995 R.I. LEXIS 192 (R.I. 1995).

Health Benefits.

Although the state exercises supreme responsibility in the arena of education, it exceeds constitutional limits by legislatively compelling a separate government employer — the school committee — to exclude abortion benefits. Accordingly, § 36-12-2.1 , which prohibits municipalities from providing public employees with health insurance covering induced abortions, is unconstitutional. National Educ. Ass'n v. Garrahy, 598 F. Supp. 1374, 1984 U.S. Dist. LEXIS 21575 (D.R.I. 1984), aff'd, 779 F.2d 790, 1986 U.S. App. LEXIS 21626 (1st Cir. 1986).

License to Show Movie.

Action of bureau of police and fire under P.L. 1926, ch. 791 [§§ 5-22-5 to 5-22-12 ] in refusing, without a hearing, license to show movie because held to be against public welfare and morals, was not unconstitutional under this section, since this provision does not prohibit police power or guarantee any rights or liberties to state citizens. Thayer Amusement Corp. v. Moulton, 63 R.I. 182 , 7 A.2d 682, 1939 R.I. LEXIS 74 (1939).

Regulation of School Committee.

A school committee’s exercise of its powers cannot be regulated by local legislation whether by ordinance or charter. Royal v. Barry, 91 R.I. 24 , 160 A.2d 572, 1960 R.I. LEXIS 54 (1960).

In a declaratory judgment action brought by a town against a school committee, it was held on appeal that the school committee was prohibited from retaining independent counsel for its legal matters and was required to have the town solicitor handle its legal matters, with the town solicitor having the authority to decline representation if ethical considerations warranted. The appellate court also held that the school committee was a department of the town and, therefore, was required to abide by the town’s charter, which required all legal matters for any of the town’s departments, agencies, or offices to be handled by the town solicitor. Town of Johnston v. Santilli, 892 A.2d 123, 2006 R.I. LEXIS 30 (R.I. 2006).

Right to Strike.

Education being a state function, school teachers had no right to strike against the school committee of the city. City of Pawtucket v. Pawtucket Teachers' Alliance, 87 R.I. 364 , 141 A.2d 624, 1958 R.I. LEXIS 66 (1958).

Taxation of Fraternity Houses.

Fraternity houses on the campus of Rhode Island University were not being exclusively used in performance of government function of education so as to be entitled to statutory exemption from taxation. Powers v. Harvey, 81 R.I. 378 , 103 A.2d 551, 1954 R.I. LEXIS 97 (1954).

§ 2. Perpetual school fund.

The money which now is or which may hereafter be appropriated by law for the establishment of a permanent fund for the support of public schools, shall be securely invested and remain a perpetual fund for that purpose.

Cross References.

Investment and management of permanent fund, § 16-4-1 et seq.

Permanent school fund appropriations, § 35-4-2 .

Comparative Provisions.

School fund:

Conn. 1965 Const., art. Eighth, § 4.

NOTES TO DECISIONS

Other Appropriations.

The legislature can appropriate money into a fund other than the permanent school fund, and therefore a statute authorizing the busing of students to nonpublic schools was not unconstitutional where the costs for busing were not paid out of the permanent school fund. Members of Jamestown Sch. Comm. v. Schmidt, 122 R.I. 185 , 405 A.2d 16, 1979 R.I. LEXIS 2144 (1979).

Collateral References.

Procedural issues concerning public school funding cases. 115 A.L.R.5th 563.

§ 3. Donations.

All donations for the support of public schools, or for other purposes of education, which may be received by the general assembly, shall be applied according to the terms prescribed by the donors.

Cross References.

Handling of school funds generally, § 16-9-1 et seq.

§ 4. Implementation of article — Diversion of funds prohibited.

The general assembly shall make all necessary provisions by law for carrying this article into effect. It shall not divert said money or fund from the aforesaid uses, nor borrow, appropriate, or use the same, or any part thereof, for any other purpose, under any pretence whatsoever.

Comparative Provisions.

Diversion of funds:

Conn. 1965 Const., art. Eighth, § 4.

Article XIII Home Rule for Cities and Towns

§ 1. Intent of article.

It is the intention of this article to grant and confirm to the people of every city and town in this state the right of self government in all local matters.

Law Reviews.

2002 Survey of Rhode Island Law, see 8 Roger Williams U.L. Rev. 421 (2003).

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

NOTES TO DECISIONS

Effect.

The home rule amendment altered the traditional rule that cities and towns were creatures of the legislature having no inherent right to self-government but deriving all of their authority and power from the legislature. Lynch v. King, 120 R.I. 868 , 391 A.2d 117, 1978 R.I. LEXIS 735 (1978).

R.I. Gen. Laws §§ 11-45.1-2 and 31-45-5 did not preempt Providence, R.I., Code of Ordinances § 16-93, prohibiting loud noise in certain locations, because (1) the ordinance did not conflict with the statutes but, rather, furthered the policy of the general assembly as stated in the statutes by creating a specific standard for a particular set of devices in a specific area, (2) the general assembly did not intend to completely occupy the field of noise regulation, and (3) R.I. Const. art. 13 allowed local governments to regulate noise in residential areas. State ex rel. City of Providence v. Auger, 44 A.3d 1218, 2012 R.I. LEXIS 72 (R.I. 2012).

Superior court properly granted declaratory and injunctive relief to two businesses and their owners in their action against a town for preemption of its ordinance banning the sale of flavored tobacco products and prohibiting the providing of any tobacco products to anyone under the age of 21 because the town lacked authority under its home rule charter to enact the ordinance where the ordinance was preempted by state law, and, although the ordinance was enacted to protect public health and safety, it constituted legislation concerning a matter of statewide concern and, therefore, infringed upon the power of the State. K&W Auto., LLC v. Town of Barrington, 224 A.3d 833, 2020 R.I. LEXIS 13 (R.I. 2020).

Municipal Budget Regulation.

Because § 45-9-3 provides uniform regulation in each city or town whose financial instability produces a lowered bond rating and threatens imminent default on debt obligations, and is an act of general applicability to all cities and towns whose budgetary problems have statewide impact, it does not violate this article. Marran v. Baird, 635 A.2d 1174, 1994 R.I. LEXIS 4 (R.I. 1994).

No Surrender of State Sovereignty.

The sovereignty of the state in the matter of elections was not surrendered to those cities and towns which adopted a home rule charter nor was the sovereignty of the state with relation to the exercise of the police power transferred to such cities or towns. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

Nothing in this provision prevents an arbitration board from amending the pension plans of policemen and firemen, for even though such power is vested in the city council by the city charter, the board acts pursuant to state legislation and the general assembly has the overriding power to legislate even on local matters so long as it does so in a general act affecting all cities and towns alike without affecting the form of local government. City of East Providence v. Local 850, Int'l Ass'n of Firefighters, 117 R.I. 329 , 366 A.2d 1151, 1976 R.I. LEXIS 1634 (1976).

The provisions of this article were not implicated in legislation involving maritime pollution remediation, since by its very terms the legislature reserves the power to act upon matters of statewide or regional concern. Town of Lincoln v. City of Pawtucket, 745 A.2d 139, 2000 R.I. LEXIS 27 (R.I. 2000).

Powers of School Committee.

A school committee’s exercise of its powers cannot be regulated by local legislation whether by ordinance or charter. Royal v. Barry, 91 R.I. 24 , 160 A.2d 572, 1960 R.I. LEXIS 54 (1960).

Regulation of Hospitality Businesses.

Ordinance requiring hospitality businesses to retain their predecessors’ employees for 90 days following a change in the ownership or management of certain hotels within a city did not exceed the city’s home rule authority because the ordinance addressed a matter of local concern by promoting the stability of the city’s hospitality and tourism businesses, the ordinance did not conflict with state law, and there was no evidence indicating how the ordinance would impact other communities. R.I. Hospitality Ass'n v. City of Providence, 775 F. Supp. 2d 416, 2011 U.S. Dist. LEXIS 34821 (D.R.I.), aff'd, 667 F.3d 17, 2011 U.S. App. LEXIS 23915 (1st Cir. 2011).

Regulation of Licenses.

Challenge to a city’s Price and Flavor Ordinances on tobacco sales, directed generally toward tobacco sales license-holders and regulating certain discounting and prohibiting certain flavored tobacco sales, based on the argument that the city lacked authority to regulate businesses through licensing schemes, failed because there had been no challenge to the local licenses scheme and thus, any such argument was not properly before the court. Nat'l Ass'n of Tobacco Outlets v. City of Providence, 731 F.3d 71, 2013 U.S. App. LEXIS 19928 (1st Cir. 2013).

Regulation of Sewers.

The town of Westerly has the inherent power to expand and maintain its sewer system. The power to regulate sewers is not a matter of statewide concern and the location of public drains and sewers in the town of Westerly is a purely local concern, as set out in its home rule charter. Westerly Residents for Thoughtful Dev. v. Brancato, 565 A.2d 1262, 1989 R.I. LEXIS 155 (R.I. 1989).

Removal of City Manager.

In ruling on the basic question of whether “under the charter of the city of Newport and the law of the state of Rhode Island, the proceedings by which the respondents seek to remove the relater from his office of city manager for the city of Newport are quasi-judicial in nature,” such city charter having been adopted pursuant to the provisions of this article, the provisions of the charter would be controlling and such charter does not expressly require that the city manager may be removed only for cause shown nor can it be so construed in the light of this section under which counsel may suspend or remove only for cause shown any officer of the city elected by it, it being finally ruled not necessary to prefer charges against the city manager to effect his removal. Nugent ex rel. Beck v. Leys, 88 R.I. 446 , 149 A.2d 716, 1959 R.I. LEXIS 32 (1959).

When Article Becomes Effective.

No town may take advantage of this provision until a charter is presented and accepted by the town; and until such action it continues to be subject to the plenary power of the general assembly. Capone v. Nunes, 85 R.I. 392 , 132 A.2d 80, 1957 R.I. LEXIS 39 (1957).

§ 2. Local legislative powers.

Every city and town shall have the power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this Constitution and laws enacted by the general assembly in conformity with the powers reserved to the general assembly.

Cross References.

Town and city ordinances, § 45-6-1 et seq.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

NOTES TO DECISIONS

Administrative Procedures.

Chapter 35 of title 42, the administrative procedure act, falls within the lawmaking powers reserved to the general assembly under the home rule provisions. O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

Advisory Opinions on Ordinances.

The Supreme Court will not give an advisory opinion concerning the constitutionality of city ordinances already enacted, but only concerning proposed legislation. Opinion to House of Representatives, 100 R.I. 345 , 216 A.2d 124, 1966 R.I. LEXIS 438 (1966).

Courts.

Home rule legislative power authorization does not extend to prescribe the jurisdiction of the courts which is vested in the general assembly by former Art. X, § 1, and former Art. XII, § 1 of amendments to the Rhode Island Constitution (See now R.I. Const., Art. IV, Sec. 2 , and Art. X, Sec. 2, respectively). Pitassi v. Personnel Hearing Bd., 116 R.I. 116 , 352 A.2d 658, 1976 R.I. LEXIS 1251 (1976).

Delegation of Power.

Just as, under former R.I. Const., Art. IV, § 2 (see now R.I. Const., Art. VI, Sec. 2 ), the General Assembly cannot unconditionally delegate any of the legislative power to municipal corporations, so municipal corporations cannot unconditionally delegate their legislative power. DePetrillo v. Coffey, 118 R.I. 519 , 376 A.2d 317, 1977 R.I. LEXIS 1493 (1977).

The section of the municipal code which authorized the chief of police to designate classes of persons entitled to park in a city lot without any standards, criteria and limitations to govern him was an unconstitutional delegation of legislative power. DePetrillo v. Coffey, 118 R.I. 519 , 376 A.2d 317, 1977 R.I. LEXIS 1493 (1977).

Employees.

This section without additional statutory authority, is sufficiently specific to legitimize a provision of a city charter distinguishing between probationary and non-probationary police officers. Harrington v. Taft, 339 F. Supp. 670, 1972 U.S. Dist. LEXIS 14838 (D.R.I. 1972).

City’s ordinance that allowed for investigations of members of the city’s police department and making recommendations to the police chief regarding discipline did not violate R.I. Const. art. XIII, § 2 . The ordinance, which limited the city to investigations and recommendations as a way of providing oversight of the city’s police department, did not interfere with the power the General Assembly granted to the police chief to actually impose discipline, which had been granted pursuant to the Law Enforcement Officers’ Bill of Rights, R.I. Gen. Laws § 42-28.6-1 et seq. Providence Lodge No. 3, FOP v. Providence External Review Auth., 951 A.2d 497, 2008 R.I. LEXIS 83 (R.I. 2008).

Franchise Powers.

This section does not confer on cities and towns the power to grant exclusive franchises for community antenna television service. Nugent ex rel. Hurd v. City of East Providence, 103 R.I. 518 , 238 A.2d 758, 1968 R.I. LEXIS 824 (1968).

Penalty Provisions.

Home rule charter permitting the imposing of greater penalties than those provided by law was unconstitutional and invalid, it being an attempt to diminish the legislative power of the general assembly. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

Power to Condemn.

Where city charter provisions for condemnation differed from those provided for in chapter 1 of title 24, the provisions in chapter 1 of title 24 governed the city’s condemnation actions. O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

Regulation of Hospitality Businesses.

Ordinance requiring hospitality businesses to retain their predecessors’ employees for 90 days following a change in the ownership or management of certain hotels within a city did not exceed the city’s home rule authority because the ordinance addressed a matter of local concern by promoting the stability of the city’s hospitality and tourism businesses, the ordinance did not conflict with state law, and there was no evidence indicating how the ordinance would impact other communities. R.I. Hospitality Ass'n v. City of Providence, 775 F. Supp. 2d 416, 2011 U.S. Dist. LEXIS 34821 (D.R.I.), aff'd, 667 F.3d 17, 2011 U.S. App. LEXIS 23915 (1st Cir. 2011).

Regulation of Sewers.

The town of Westerly has the inherent power to expand and maintain its sewer system. The power to regulate sewers is not a matter of statewide concern and the location of public drains and sewers in the town of Westerly is a purely local concern, as set out in its home rule charter. Westerly Residents for Thoughtful Dev. v. Brancato, 565 A.2d 1262, 1989 R.I. LEXIS 155 (R.I. 1989).

Voting Reapportionment Plan.

The general assembly retained no authority to enact a local voting reapportionment plan or to remove locally elected officials from office, as such matters are clearly of local concern under this section. In re Advisory Opinion to House of Representatives, 628 A.2d 537, 1993 R.I. LEXIS 191 (R.I. 1993).

§ 3. Local legislative bodies.

Notwithstanding anything contained in this article, every city and town shall have a legislative body composed of one or two branches elected by vote of its qualified electors.

Cross References.

Councils, § 45-5-1 et seq.

§ 4. Powers of general assembly over cities and towns.

The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

Andre S. Digou, A View of the Rhode Island Pension Landscape: The Potential Reform of Local Pension Plans Under the Preemption Doctrine, 19 Roger Williams U. L. Rev. 740 (2014).

Comparative Provisions.

Powers of legislature over cities and towns:

Conn. 1965 Const., art. Tenth, § 1.

NOTES TO DECISIONS

City Pension Plans.

Regulation of the city of Providence’s employee pension plan is not a matter of statewide concern, where the plan directly affects only residents of Providence in that they provide revenues needed to support the system and they receive the benefits garnered from the plan. Bruckshaw v. Paolino, 557 A.2d 1221, 1989 R.I. LEXIS 86 (R.I. 1989).

The 1985 act relating to employees of the city of Providence, which does not apply equally to all cities and towns and is not approved by the majority of the Providence voters, does not comply with the directives of this section. Bruckshaw v. Paolino, 557 A.2d 1221, 1989 R.I. LEXIS 86 (R.I. 1989).

Condemnation Procedures.

Where city charter provisions for condemnation differed from those provided for in chapter 1 of title 24, the provisions in chapter 1 of title 24 governed the city’s condemnation actions. O'Neill v. East Providence, 480 A.2d 1375, 1984 R.I. LEXIS 593 (R.I. 1984).

Election Laws.

Provisions in a home rule charter prescribing nonpartisan nominations and elections, fixing the time for holding elections, and specifying the number of signatures required on nomination papers, were not made valid under this amendment, but were invalid by virtue of an invasion of the full power over elections vested in the general assembly under former R.I. Const. Amend., Art. 29, § 7 . Opinion to House of Representatives, 80 R.I. 288 , 96 A.2d 627, 1953 R.I. LEXIS 65 (1953); State ex rel. Flynn v. McCaughey, 81 R.I. 143 , 99 A.2d 482, 1953 R.I. LEXIS 26 (1953).

It is possible for the general assembly to enact legislation providing three election codes, one to be approved by the qualified electors of a city or town at an election, provided the mode of approval and the election itself are authorized by the statute. Opinion to Senate, 81 R.I. 254 , 102 A.2d 118, 1954 R.I. LEXIS 73 (1954).

The general assembly by virtue of former R.I. Const. Amend., Art. 29, § 7 , was vested with exclusive authority to designate dates of municipal elections of cities and towns operating under a home rule charters. Opinion to Senate, 81 R.I. 258 , 101 A.2d 879, 1954 R.I. LEXIS 74 (1954).

General Laws.

P.L. 1900, ch. 804, establishing a board of police commissioners for the city of Newport, did not interfere with right of the city to local self-government, so far as power of such board to appoint chief of police is concerned, as the right of a city to the sole control of its police force is not within provisions of this section. Newport v. Horton, 22 R.I. 196 , 47 A. 312, 1900 R.I. LEXIS 86 (1900).

P.L. 1901, ch. 894, § 9, providing for payment of salaries of police commissioners of city of Newport by the city, does not violate this section, since the general assembly has the right to control police, although their duties are confined to a certain locality, and the right to provide for payment of expenses of local police department out of local funds of the municipality. Horton v. City Council of Newport, 27 R.I. 283 , 61 A. 759, 1905 R.I. LEXIS 88 (1905).

Legislature could withdraw right of city, through its mayor and aldermen, to appoint police and fire commissioners and a public service engineer, and could provide for a state-appointed board of public safety to serve these functions, since cities and towns have no inherent right of local government. City of Providence v. Moulton, 52 R.I. 236 , 160 A. 75, 1932 R.I. LEXIS 34 (1932).

Notwithstanding adoption of a home rule charter, the general assembly may legislate for cities and towns even in local matters, if done by a general act applicable to all cities and towns alike and subject to the express provision that such general act shall not affect the form of government of any city or town. Opinion to House of Representatives, 79 R.I. 277 , 87 A.2d 693, 1952 R.I. LEXIS 44 (1952).

The power to regulate occupations and businesses by licensing provisions and by imposing licensing fee is an attribute of sovereignty. It is not an incident of municipal administration and may not be exercised by municipalities except where it is lawfully delegated to them in particular instances expressly or by necessary implication. This amendment does not either expressly or by necessary implication vest municipalities with such power. It clearly states that the intent thereof is to grant the right of self-government only in all local matters. The power to license is definitely not a local matter. Newport Amusement Co. v. Maher, 92 R.I. 51 , 166 A.2d 216, 1960 R.I. LEXIS 137 (1960).

R.I. Const., Art. 13 does not diminish the legislative power of the general assembly in matters of statewide application. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

A provision of existing ordinance must yield to a subsequent inconsistent amendment, for to hold otherwise would sanction an unconstitutional interference with the legislative powers conferred upon the general assembly by the constitution and in turn delegated to the city and town councils. Camara v. City of Warwick, 116 R.I. 395 , 358 A.2d 23, 1976 R.I. LEXIS 1287 (1976).

The Fire Fighters’ Act making promotion a bargainable issue in collective bargaining is general in nature and, notwithstanding the broad sweep of the home rule article, applies equally to all cities and towns and supersedes a controverting home rule charter provision. City of Cranston v. Hall, 116 R.I. 183 , 354 A.2d 415, 1976 R.I. LEXIS 1263 (1976).

The officers’ bill of rights (§§ 42-28.6-1 42-28.6-15 ) does not violate the home rule article ( R.I. Const., Art. 13 ), since police officers, while they may be appointed by an individual city or town, act for all the inhabitants of the state and not only for the residents of the appointing community and the statute applies to all cities and towns and does not affect their form of government. Lynch v. King, 120 R.I. 868 , 391 A.2d 117, 1978 R.I. LEXIS 735 (1978).

Except as limited by the Constitution of the United States and the Constitution of the state of Rhode Island, the powers of the general assembly are plenary and unlimited. However, art. XIII, § 4, is such a limitation. McCarthy v. Johnson, 574 A.2d 1229, 1990 R.I. LEXIS 104 (R.I. 1990).

The parameters of “local” and “general” legislation may be more clearly discerned with the aid of three variables. First, when it appears that uniform regulation throughout the state is necessary or desirable, the matter is likely to be within the state’s domain. Second, whether a particular matter is traditionally within the historical dominion of one entity is a substantial consideration. Third, and most critical, if the action of a municipality has a significant effect upon people outside the home rule town or city, the matter is apt to be deemed one of statewide concern. East Greenwich v. O'Neil, 617 A.2d 104, 1992 R.I. LEXIS 209 (R.I. 1992).

The Rhode Island Public Utilities Commission’s review of a municipal ordinance prohibiting the construction of a certain class of high voltage lines does not involve a coordinate branch of government exercising powers in violation of the separation of powers doctrine. East Greenwich v. O'Neil, 617 A.2d 104, 1992 R.I. LEXIS 209 (R.I. 1992).

Although the home rule charter amendment to the state Constitution confers power on cities and towns to exercise their right of self-government in all local matters, the legislature retains the right to legislate on matters of statewide concern, as well as the power to act in relation to property located in cities and towns. Munroe v. Town of E. Greenwich, 733 A.2d 703, 1999 R.I. LEXIS 139 (R.I. 1999).

Licenses and Franchises.

The granting of an exclusive franchise to operate a community antenna service in a town was the licensing of a business and the exercise of a power which has been reserved to the state. Nugent ex rel. Hurd v. City of East Providence, 103 R.I. 518 , 238 A.2d 758, 1968 R.I. LEXIS 824 (1968).

Penalties.

This article does not purport to diminish the legislative power of the general assembly in matters of statewide application, therefore the home rule charter permitting the imposing of greater penalties than those provided by law was unconstitutional and invalid, it being an attempt to diminish the legislative power of the general assembly. State v. Krzak, 97 R.I. 156 , 196 A.2d 417, 1964 R.I. LEXIS 55 (1964).

Police Officers’ Arbitration Act.

Given the Police Officers’ Arbitration Act’s uniform application, its negligible impact on the town’s form of government and the statewide collective importance of municipal police officers, the Act as applied in this case did not violate the town’s right to self-government as guaranteed by the Rhode Island Constitution. Town of Lincoln v. Lincoln Lodge No. 22, 660 A.2d 710, 1995 R.I. LEXIS 178 (R.I. 1995).

Regulation of Power Lines.

Considering the need for uniformity in the area of public utility regulatory policy and the extra-territorial effect of a municipal ordinance regulating the installation of power lines, the town’s ordinance was impermissibly one of statewide character and the ordinance constituted an action ultra vires of the authority delegated by the town’s home rule charter. East Greenwich v. O'Neil, 617 A.2d 104, 1992 R.I. LEXIS 209 (R.I. 1992).

Special Legislation Subject to Approval by Electors.

Notwithstanding adoption of a home rule charter, the general assembly may legislate in local matters by special legislation directed to a particular city or town, subject to the condition that the act shall not become effective until it has been duly approved by a majority of the qualified electors thereof voting at a general or special election, and subject to the additional condition, where it involves imposition of a tax or expenditure of money by a town as distinguished from a city, that it must be submitted to and approved by town electors qualified to vote on taxes and money expenditures. Opinion to House of Representatives, 79 R.I. 277 , 87 A.2d 693, 1952 R.I. LEXIS 44 (1952).

Provision for approval at a primary election of an act relating to payment of legal fees by Town of Westerly was unconstitutional under this article, since the article provides for such approval only at a general or special election. Miller v. State, 451 A.2d 280, 1982 R.I. LEXIS 1061 (R.I. 1982).

Because 85-H 6525 and 87-H 6883 both affect matters of local concern and were not submitted to the voters of the city of Newport as required by art. XIII, § 4, these acts are invalid and unenforceable. McCarthy v. Johnson, 574 A.2d 1229, 1990 R.I. LEXIS 104 (R.I. 1990).

Two acts, 85-H 6525 and 87-H 6883, are not general acts applicable to all towns and cities. They directly affect a single community, the city of Newport, by raising the potential liability exposure for injuries sustained by this plaintiff. Clearly these two acts affect the “property, affairs and government” of the defendant city. McCarthy v. Johnson, 574 A.2d 1229, 1990 R.I. LEXIS 104 (R.I. 1990).

Status of Towns and Cities.

Unless a city or town charter is submitted to and adopted by its qualified electors in accordance with this provision, such city or town retains the same status relative to the general assembly as that which it had prior to the adoption of the provision. Opinion to House of Representatives, 79 R.I. 277 , 87 A.2d 693, 1952 R.I. LEXIS 44 (1952).

The general assembly has no right to pass even general legislation which will change the form of a city or town government under a home rule charter that has been duly adopted, though it retains exclusive power to grant to cities and towns authority to levy, assess and collect taxes or to borrow money. Opinion to House of Representatives, 79 R.I. 277 , 87 A.2d 693, 1952 R.I. LEXIS 44 (1952).

Proposed act providing for automatic submission of proposition, “Shall a commission be appointed to amend, alter or revise the charter?”, every six years is not an exercise of any of the powers vested in the general assembly by virtue of this section. Opinion to House of Representatives, 99 R.I. 472 , 208 A.2d 522, 1965 R.I. LEXIS 466 (1965).

R.I. Gen. Laws § 45-9-1 et seq. (the act), allowing the Director of the Rhode Island Department of Revenue (Director) to appoint a receiver to conduct a city’s affairs in a fiscal emergency, did not violate the home rule provisions of R.I. Const. art. XIII, § 4 because the act (1) was an enactment of general application, and (2) did not alter the city’s form of government in R.I. Gen. Laws § 45-9-7 , as the receiver’s powers were contained and channeled by (1) standards setting forth a deliberate and progressive mechanism by which a town or city was provided with varying levels of support and control depending on the circumstances, (2) the Director’s ability, under R.I. Gen. Laws § 45-9-7 , to remove the receiver and terminate the receivership, and (3), subjecting the receiver to administering any and all delegated powers in accordance with the act’s stated policy purpose. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

Failure of R.I. Gen. Laws § 45-9-7 , regarding the Director of the Rhode Island Department of Revenue appointing a receiver to conduct a city’s affairs in a fiscal emergency, to contain a sunset provision did not cause the statutory scheme in R.I. Gen. Laws § 45-9-1 et seq. to violate the home rule provisions of R.I. Const. art. XIII, § 4 because, despite this flaw in the statutory framework, there were sufficient standards that could serve as an objective measure of when the receiver’s oversight should terminate. Moreau v. Flanders, 15 A.3d 565, 2011 R.I. LEXIS 39 (R.I. 2011).

§ 5. Local taxing and borrowing powers.

Nothing contained in this article shall be deemed to grant to any city or town the power to levy, assess and collect taxes or to borrow money, except as authorized by the general assembly.

Cross References.

Borrowing power of towns and cities, §§ 45-12-4 , 45-12-4.1 and 45-12-5 .

Taxing power of towns and cities, § 44-5-1 et seq.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

NOTES TO DECISIONS

General Assembly.

The general assembly retains exclusive power to grant to cities and towns authority to levy, assess and collect taxes or to borrow money. Opinion to House of Representatives, 79 R.I. 277 , 87 A.2d 693, 1952 R.I. LEXIS 44 (1952).

Municipalities have no inherent power to legislate on matters of statewide concern or upon matters specifically reserved to the General Assembly, such as this section which reserves to the General Assembly matters relating to taxation and borrowing money. Newport Court Club v. Town Council of Middletown, 716 A.2d 787, 1998 R.I. LEXIS 271 (R.I. 1998).

Legislative authorization contained in 1999 Public Laws ch. 318, § 1 was a proper exercise of the General Assembly’s exclusive powers in matters of taxation and borrowing money under this section, and thus the approval of a town’s electors was not required for its implementation. Newport Court Club Assocs. v. Town Council, 800 A.2d 405, 2002 R.I. LEXIS 168 (R.I. 2002).

§ 6. Charter commissions.

Every city and town shall have the power to adopt a charter in the following manner: Whenever a petition for the adoption of a charter signed by fifteen percent of the qualified electors of a city, or in a town by fifteen percent, but not less than one hundred in number, of those persons qualified to vote on any proposition to impose a tax or for the expenditure of money shall be filed with the legislative body of any city or town the same shall be referred forthwith to the canvassing authority which shall within ten days after its receipt determine the sufficiency thereof and certify the results to the legislative body of said city or town. Within sixty days thereafter the legislative body of a city shall submit to its qualified electors and the legislative body of a town shall submit to the electors of said town qualified to vote upon a proposition to impose a tax or for the expenditure of money the following question: “Shall a commission be appointed to frame a charter?” and the legislative body of any city or town shall provide by ordinance or resolution a method for the nomination and election of a charter commission to frame a charter consisting in a city of nine qualified electors and in a town of nine electors of said town qualified to vote upon a proposition to impose a tax or for the expenditure of money who shall be elected at large without party or political designation and who shall be listed alphabetically on the ballot used for said election. Such ordinance or resolution shall provide for the submission of the question and the election of the charter commission at the same time. Upon approval of the question submitted the nine candidates who individually receive the greater number of votes shall be declared elected and shall constitute the charter commission.

Cross References.

Qualification of person obtaining signatures, § 17-23-12 .

NOTES TO DECISIONS

Petition.

Whether person signing petition is a qualified elector is determined as of the date of filing of the petition. Berberian v. Board of Canvassers, 91 R.I. 49 , 161 A.2d 416, 1960 R.I. LEXIS 69 (1960).

There is no duty on those who obtain signatures to prove date on which signatures were affixed or to certify that they were affixed in their presence nor is there any duty on signatories themselves to indicate date of signing or to sign in presence of attesting witnesses and petition could not be denied because of rule of board requiring such information. Berberian v. Board of Canvassers, 91 R.I. 49 , 161 A.2d 416, 1960 R.I. LEXIS 69 (1960).

§ 7. Adoption of charters.

Within one year from the date of the election of the charter commission the charter framed by the commission shall be submitted to the legislative body of the city or town which body shall provide for publication of said charter and shall provide for the submission of said charter to the electors of a city or town qualified to vote for general state officers at the general election next succeeding thirty days from the date of the submission of the charter by the charter commission. If said charter is approved by a majority of said electors voting thereon, it shall become effective upon the date fixed therein.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

NOTES TO DECISIONS

Challenge to Validity of Charter.

The validity of a city charter, which allegedly was not submitted to the electorate as required by this section cannot be questioned by a challenge to the jurisdiction of a personnel appeal board established by that charter. Fox v. Personnel Appeal Bd., 99 R.I. 566 , 210 A.2d 50, 1965 R.I. LEXIS 482 (1965).

Provisions Affecting Education.

No provision affecting education contained within a home rule charter can effectively regulate the conduct of school committees as agents of the state unless expressly validated by an act of the general assembly. Coventry Sch. Comm. v. Richtarik, 122 R.I. 707 , 411 A.2d 912, 1980 R.I. LEXIS 1451 (1980).

§ 8. Amendments to charters.

The legislative body of any city or town may propose amendments to a charter which amendments shall be submitted for approval in the same manner as provided in this article for the adoption of a charter except that the same may be submitted at a special election, and provided further that in the case of a town, amendments concerning a proposition to impose a tax or for the expenditure of money, shall be submitted at a special or regular financial town meeting.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

NOTES TO DECISIONS

Different Method.

Proposed act providing for automatic submission of proposition, “Shall a commission be appointed to amend, alter or revise the charter?”, every six years would establish a different method for amending the charter of a municipality without following the procedure prescribed in this section. Opinion to House of Representatives, 99 R.I. 472 , 208 A.2d 522, 1965 R.I. LEXIS 466 (1965).

§ 9. Filing of charter petitions to bicameral legislative bodies.

Whenever the legislative body of any city or town consists of more than one branch, a petition for the adoption of a charter as provided in this article may be filed with either branch of said legislative body.

§ 10. Charter certificates — Signing — Recordation — Deposit — Judicial notice.

Duplicate certificates shall be made setting forth the charter adopted and any amendments approved and the same shall be signed by a majority of the canvassing authority; one of such certified copies shall be deposited in the office of the secretary of state and the other after having been recorded in the records of the city or town shall be deposited among the archives of the said city or town and all courts shall take judicial notice thereof.

§ 11. Judicial powers unaffected by article.

The judicial powers of the state shall not be diminished by the provisions of this article.

Law Reviews.

For note and comment, Constitutional Home Rule in Rhode Island, see 11 Roger Williams U. L. Rev. 677 (2006).

Article XIV Constitutional Amendments and Revisions

§ 1. Procedure for proposing and approving amendments.

The general assembly may propose amendments to the Constitution of the state by a roll call vote of a majority of the members elected to each house. Any amendment thus proposed shall be published in such manner as the general assembly shall direct, and submitted to the electors at the next general election as provided in the resolution of approval; and, if then approved by a majority of the electors voting thereon, it shall become a part of the Constitution.

Cross References.

Voting on constitutional amendments, § 17-5-1 et seq.

NOTES TO DECISIONS

General Election.

A regularly scheduled statewide election constitutes a general election for purposes of R.I. Const. Article 14, Section 1 , even though state officers are not on the ballot. In 2008, an even-numbered year when the state’s general offices are not in contention, voters will cast their ballots for the President of the United States, a statewide and national election of no small significance. Bowen v. Mollis, 945 A.2d 314, 2008 R.I. LEXIS 47 (R.I. 2008).

§ 2. Constitutional conventions.

The general assembly, by a vote of a majority of the members elected to each house, may at any general election submit the question, “Shall there be a convention to amend or revise the Constitution?” to the qualified electors of the state. If the question be not submitted to the people at some time during any period of ten years, the secretary of state shall submit it at the next general election following said period. Prior to a vote by the qualified electors on the holding of a convention, the general assembly, or the governor if the general assembly fails to act, shall provide for a bi-partisan preparatory commission to assemble information on constitutional questions for the electors. If a majority of the electors voting at such election on said question shall vote to hold a convention, the general assembly at its next session shall provide by law for the election of delegates to such convention. The number of delegates shall be equal to the number of members of the house of representatives and shall be apportioned in the same manner as the members of the house of representatives. No revision or amendment of this Constitution agreed upon by such convention shall take effect until the same has been submitted to the electors and approved by a majority of those voting thereon.

NOTES TO DECISIONS

In General.

Plaintiff ’s claim that the legislature lacked authority to limit the power of the 1973 constitutional convention to propose amendments that were outside the scope of the call legislation governing the convention’s agenda was moot where there was no indication that any proposals were ruled out of order at the convention and the convention finally adopted two resolutions, and entertained many others, that exceeded the restrictions set forth by the legislation. Malinou v. Powers, 114 R.I. 399 , 333 A.2d 420, 1975 R.I. LEXIS 1428 (1975).

Article XV General Transition

§ 1. Rights and duties of public bodies unaffected — Continuation of laws, ordinances, regulations and rules.

The rights and duties of all public bodies shall remain as if this Constitution had not been adopted with the exception of such changes as are contained in this Constitution. All laws, ordinances, regulations and rules of court not contrary to, or inconsistent with, the provisions of this Constitution shall remain in force, until they shall expire by their own limitation or shall be altered or repealed pursuant to this Constitution.

Law Reviews.

For article, “Rhode Island’s Forgotten Bill of Rights,” see 1 R.W.U.L. Rev. 31 (1996).

§ 2. Validity of bonds, debts, contracts, suits, actions, and rights of actions continued.

The validity of all public and private bonds, debts and contracts, and of all suits, actions, and rights of action, shall continue as if no change had taken place.

§ 3. Continuation of office holders.

All officers filling any office by election or appointment shall continue the duties thereof, until the end of the terms to which they were appointed or elected, and until their offices shall have been abolished or their successors elected and qualified in accordance with this Constitution or laws enacted pursuant thereto.

§ 4. Implementing legislation for Article III, Sections 7 and 8, and Article IV, Section 10.

On or before June 1, 1988, the general assembly shall adopt implementing legislation for Article III, Sections 7 and 8, and for Article IV, Section 10.

History of Amendment.

Implementing legislation for R.I. Const., art. 3, §§ 7 and 8 was adopted in § 3 of P.L. 1987, ch. 195, which enacted chapter 14 of title 36 entitled “Code of Ethics.”

Implementing legislation for R.I. Const., art. 4, § 10 was adopted in § 1 of P.L. 1988, ch. 420, which enacted §§ 17-25-10.1 , 17-25-18 17-25-29 .

NOTES TO DECISIONS

Right of Action.

Given that a separate constitutional provision explicitly directed the Legislature to adopt implementing legislation for R.I. Const. art. III, § 7 , and that such legislation existed in detailed form, the court could not say that the district court erred in granting summary judgment in favor of defendants by holding that plaintiff did not have a private right of action under that provision. Senra v. Town of Smithfield, 715 F.3d 34, 2013 U.S. App. LEXIS 9091 (1st Cir. 2013).

Rhode Island Constitution Translation Table

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