Gelch v. State Board of Elections

MURRAY, Justice,

dissenting.

I cannot agree with the result reached by the majority today. It is my opinion that the requisite qualifications for seeking *1220elective office in the State of Rhode Island are explicitly and exclusively set out in article XXXIX, section 1, of the Articles of Amendment to the Rhode Island Constitution. It is my firm conviction that any provision of a city charter or state statute that purports to supplement or modify the provisions of art. XXXIX, sec. 1, are unconstitutional.

It is conceded by petitioner that Vincent A. Cianci, Jr., did not lose his status as a qualified elector when he entered a plea of nolo contendere to the charges against him and received a suspended sentence from the trial justice. Despite this fact, the majority holds that the language of art. XXXIX, sec. 1, is not exclusive, that it sets only minimum standards of qualification upon an individual’s right to hold public office, and that other qualifications not inconsistent with the Constitution can be prescribed by the General Assembly. In so doing, I believe that the majority strains the logic of our prior holdings and ignores established principles of constitutional jurisprudence to reach a highly questionable result.

Article XXXIX, sec. 1 provides that “[n]o person shall hold any office unless he be a qualified elector for such office.” The term “qualified elector” is not defined in art. XXXIX, although its meaning is clearly set out in art. XXXVIII, sec. 1, of our Constitution.9

Basic principles of constitutional construction support the position that the language of art. XXXVIII, sec. 1, defines the meaning of the term “qualified elector” in its companion amendment, art. XXXIX. The contemporaneous adoption of these two amendments and the identical subject matter that they address demand that art. XXXIX, sec. 1, be construed in such a manner.10

This court has previously stated that when “two amendments are adopted on the same day they must be construed together and effect given to both. Differences, if there are any, must, if possible, be reconciled.” Opinion to the Governor, 78 R.I. 144, 148, 80 A.2d 165, 167 (1951) (quoting 1 Cooley Con.L. (8th ed.) chap. IV, 129).11 It has also been stated that different constitutional provisions relating to the same subject are in pari materia and therefore should be construed together and read in light of each other. See Kilpatrick v. Superior Court of Maricopa, 105 Ariz. 413, 419, 466 P.2d 18,'21 (1970); Idaho Tel. Co. v. Baird, 91 Idaho 425, 429, 423 P.2d 337, *1221341 (1967); Grantz v. Grauman, 302 S.W.2d 364, 366 (Ky., 1957); State v. Sher-rill, 142 Ohio St. 574, 578, 53 N.E.2d 501, 504 (1944).12

Applying the above rules to the case at bar, I can see no inconsistency between the provisions of art. XXXVIII, sec. 1 and those contained in art. XXXIX, sec. 1. When both of these amendments of our constitution are construed together, it is obvious that the meaning of the term “qualified elector” in art. XXXIX, sec. 1, is explicitly defined in art. XXXVIII, sec. 1. And having given explicit meaning in Article XXXVIII to the only constitutional language limiting an individual’s eligibility for public office under art. XXXIX, I must conclude that the intent of the framers of art. XXXIX was to make its disqualification provision exclusive. It defies my sense of logic to conclude that the delegates to the 1973 convention would so particularize the qualifications for voting in art. XXXVIII, sec. 1, make qualified electorship the only requirement for public-office holding in art. XXXIX, and not intend that an individual’s compliance with the provisions of art. XXXIX, sec. 1, would entitle him to hold public office. It is my position, therefore, that unless a candidate becomes ineligible to vote under the express provisions of art. XXXVIII, sec. 1, he is qualified to hold public office in the State of Rhode Island, absent another constitutional provision disqualifying his candidacy.13

It is plain that Vincent A. Cianci, Jr. has not lost his right to vote under art. XXXVIII as a result of his felony conviction and suspended sentence. Article XXXVIII only disenfranchises those persons who have served a prison sentence upon final conviction of a felony, not individuals like Mr. Cianci, who have received suspended sentences for their felony convictions without ever serving a day in jail. See Bailey v. Baronian, 120 R.I. 389, 394, 394 A.2d 1338, 1340 (1978).

Consequently, had the majority’s analysis of his eligibility to be a candidate in the special mayoral election confined itself to the Constitution of this state, it would have been forced to conclude, as I have, that Mr. Cianci is eligible to be a candidate in this election. Instead, however, my brethren in the majority insist upon looking beyond the express provisions of arts. XXXVIII and XXXIX to the ambiguous terms of a city charter to invalidate his candidacy. As justification for embarking upon such an intellectual journey, they have reasoned that the negative wording of art. XXXIX, sec. 1, demonstrates an intent upon the part of its framers to set only minimal, nonexclusive standards of eligibility for public-office holding. Such a position I find indefensible under the law.

A fundamental rule of constitutional construction is to give effect to the constitution as a whole, including every clause and section, and to avoid resort to any extrinsic aids in construing the meaning of constitutional provisions.

“Every such instrument is adopted as a whole, and * * * [i]f any section of a law be intricate, obscure, or doubtful, the proper mode of discover its true meaning is by comparing it with the other sections, and finding out the sense of one clause by the words or obvious intent of another. And in making this comparison it is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law.
“This rule is applicable with special force to written constitutions, in which *1222the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication.” 1 Cooley, A Treatise on the Constitutional Limitations, at 127-29 (8th ed. 1927).

It is my conviction that when arts. XXXVIII and XXXIX were adopted, the delegates to the 1973 convention left nothing to implication. Fully cognizant of the momentous task for which they had been elected, they deliberated thoroughly and spoke in plain and unambiguous terms. They defined the qualifications for classification as an eligible voter in art. XXXVIII, sec. 1, and then made that qualification the only restriction upon public-office holding in art. XXXIX. If they had intended that additional limitations be placed upon eligibility for public office, they would have so stated. The framers of a constitution, and the people who have adopted it, “must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 188, 6 L.Ed. 23 (1824); see also South Carolina v. United States, 199 U.S. 437, 449, 26 S.Ct. 110, 111, 50 L.Ed. 261, 265 (1905).

In support for its holding that art. XXXIX, sec. 1, sets only minimal qualifications upon an individual’s eligibility for public office, the majority directs our attention to two previous opinions of this court. In neither one can I find any support for the interpretation of art. XXXIX embraced by the majority today. In Conrad v. Narragansett Board of Canvassers, R.I., 420 A.2d 50 (1980), we explicitly noted that we were not faced with any constitutional challenges to our state’s election statutes.

“The parties have in their briefs and oral arguments raised no issues arising either under the Constitution of the State of Rhode Island or the Constitution of the United States. Thus, this case presents to us only one issue, that of the construction of § 17-14-2 in light of the requirements of § 17-1-3.” Id. 420 A.2d at 51.

In Rawlinson v. Board of Canvassers of Woonsocket, R.I., 420 A.2d 52 (1980), we similarly did not address any constitutional issues. Our per curiam order in Rawlin-son, issued one day after the Conrad decision, simply declared the petitioner ineligible for the Woonsocket mayoral election based upon “the -reasons set forth in our opinion in Conrad * * *.” Id. 420 A.2d at 53. Nowhere in either case is there any discussion of art. XXXIX or the rule of law to apply when a state-elections statute conflicts with an explicit provision of our Constitution.

For such a rule, however, we need only direct our attention to the recent case of Bailey v. Baronian, 120 R.I. 389, 394 A.2d 1338 (1978). In Bailey, this court rejected the petitioner’s argument that G.L.1956 (1969 Reenactment) § 13-6-2 could interpret or limit art. XXXVIII, sec. 1. In a unanimous opinion of this court, it was stated that “[n]o act of the General Assembly can ‘limit’ a provision of the constitution.” 120 R.I. at 398, 394 A.2d at 1342. In so stating, this court reaffirmed the most basic axiom of constitutional construction that statutory provisions inconsistent with an express provision of our Constitution are void.

The mandate of Bailey would therefore allow Mr. Cianci to run as a candidate in this special election. Certainly if a state statute cannot supplant or limit a constitutional provisional, a provision of a city charter enacted pursuant to general enabling legislation cannot be entitled to more judicial deference. And even were I to conclude, as the majority has done, that sections 202 and 206 of the Providence Home Rule Charter of 1980 does not limit art. XXXIX, sec. 1, but only adds to the provisions therein, I would still find him eligible to run. Sections 202 and 206 place additional restrictions beyond those contained in our Constitution upon Mr. Cianci’s qualifications for public office. This addition in itself contravenes our Constitution. As *1223this court has previously said, “[U]nless a contrary intent clearly appears on the face of the provision, absent equivocal or ambiguous language, the words [in a constitution] cannot be interpreted or extended but must be applied literally.” Davis v. Hawksley, 119 R.I. 453, 455, 379 A.2d 922, 923 (1977) (citing Andreozzi v. D’Antuono, 113 R.I. 155, 158, 319 A.2d 16, 18 (1974); Podborski v. Haskell Mfg. Co., 109 R.I. 1, 8, 279 A.2d 914, 918 (1971)).

I further believe that strict adherence by this court to the rules announced in Bailey and Davis is mandated here because this case involves a restriction upon a fundamental right possessed by all citizens in a democratic society. As we have previously stated, “[cjandidacy for public office is one of the rights included within the scope of the first amendment.” Cummings v. Go-din, 119 R.I. 325, 335, 377 A.2d 1071, 1075 (1977) (citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).

To construe art. XXXIX, sec. 1, of our Constitution as the majority has done therefore has infringed upon the fundamental right of Vincent A. Cianci, Jr., to seek elective office. Although the majority opinion sanctions this infringement based upon its view of incorporation principles under the Fourteenth Amendment, this argument misses the mark. Where “two constructions of a constitutional provision are reasonably possible, one of which would diminish or restrict a fundamental right of the people and the other of which would not do so, the latter [construction] must be adopted.” In Re the Constitutional Convention, 55 R.I. 56, 73, 178 A. 433, 441-42 (1935). Consistent with our earlier opinion, I would construe the provisions of art. XXXIX as being exclusive of all state statutes and city charters and declare Vincent A. Cianci, Jr., eligible as a candidate in the impending election.

The final reason that I cannot endorse the decision reached by the majority today relates to the plain fact that the Providence Home Rule Charter is silent upon the question of Vincent A. Cianci, Jr.’s eligibility for this special election. Although my brethren in the majority ingeniously and persuasively interpret §§ 202 and 206 of the city charter to demonstrate that Mr. Cian-ci’s resignation from his mayoral office is effective for the entire four-year term for which he was previously elected, no litany or review of federal and state court cases dissuades me from the conclusion that the Rhode Island Constitution has declared in plain and unambiguous terms that he remains an eligible candidate in the upcoming special election.

In its most essential form, this dispute involves nothing more than a conflict between a silent charter and an express constitutional provision. Even if I were of the opinion that these two documents were not inconsistent, I would still conclude that the provisions of the Constitution should prevail. And even though the drafters of the home-rule charter may never have countenanced a scenario in which an incumbent mayor would resign from his office following final conviction of a felony — and then seek to be a candidate in the special election held to fill the vacancy created by his resignation — they must live with its actual terms. If the drafters of the Providence Home Rule Charter wished to prohibit individuals like Mr. Cianci from being candidates in special elections held pursuant to § 206, they should have said so in no uncertain terms. Their failure to do so should not be remedied by an act of judicial activism upon the part of this court. The drafters had their opportunity to prevent the “evil” for which this court now provides relief. Having not done so, they should be bound by its existing terms.

Although many might cynically conclude that any constitution that permits Mr. Cian-ci to be a candidate in this election is one that is in sad shape and in serious need of revision, any changes in our Constitution should not be wrought by a construction of this court. To these individuals, I would only remark that we must live with the document as it was written, and until it be *1224properly amended, it remains the supreme law of our state.

As the learned Professor Cooley so ably stated:

“A court or legislature which [would] allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty; and if its course could become a precedent, these instruments would be of little avail. The violence of public passion is quite as likely to be in the direction of oppression as in any other; and the necessity for bills of rights in our fundamental laws lies mainly in the danger that the legislature will be influenced, by temporary excitements and passions among the people, to adopt oppressive enactments. What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require.” 1 Cooley, at 124.

For all of the above reasons, I respectfully dissent.

.Article XXXVIII, sec. 1 provides:

“Every citizen of the United States of the age of eighteen (18) years or over who has had his residence and home in this state for thirty (30) days next preceding the time of voting, who has resided thirty (30) days in the town or city from which he desires to vote, and whose name shall be registered at least thirty (30) days next preceding the time of voting as provided by law, shall have the right to vote for all officers 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. Nor shall any person otherwise qualified to vote as provided in this article be permitted to vote while serving a prison sentence on final conviction of a felony nor subsequent to such imprisonment until the franchise shall have been restored by an act of the general assembly. 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.”

. Articles XXXVIII and XXXIX were adopted by the people of the State of Rhode Island on the same day, and both affect the same subject matter. Articles XXXVIII and XXXIX were adopted by the people on November 6, 1973, at a limited constitutional convention that was convened pursuant to P.L. 1973, ch. 98. One of the four enumerated purposes for convening the 1973 convention, to consider constitutional amendments relating to the "revision of the election laws,” P.L. 1973, ch. 98, § 1, formed the substance of these amendments. Article XXXVIII, entitled "Of Suffrage,” and art. XXXIX, entitled "Qualification for Office,” both effected revisions in the prevailing election laws.

. This rule comports with its federal counterpart that amendments adopted at the same time, or at substantially the same time, must be construed together to discern the intent of the framers. See Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258, 74 L.Ed. 854, 863 (1930).

. Sound justification for this latter rule exists. Although the meaning of one section of a constitution standing alone may frequently be ambiguous, that same section’s meaning will become readily discernible when construed in relation to other portions of the same instrument. Collins v. Jackson, 119 Miss. 727, 741-42, 81 So. 1, 5-6 (1919); Killgrove v. Morriss, 39 Nev. 224, 226-27, 156 P. 686 (1916).

. See, e.g. art. 9, sec. 2 of the Rhode Island Constitution, which prohibits any person convicted of bribery in connection with his own or another’s election from holding public office.