Vol 11 No 3 - Roger Williams University School of Law

ROGER WILLIAMS UNIVERSITY 

LAW REVIEW 

VOLUME ELEVEN SPRING 2006 NUMBER THREE 

ARTICLES 

TABLE OF CONTENTS 

Getting the Lead Out: 

How Public Nuisance Law 

Protects Rhode Island’s Children……………………….…...……Aileen Sprague & 

Fidelma Fitzpatrick 

The Obfuscation of Rhode Island’s 

Clearly Expressed Constitutional 

Right to Bear Arms: 

Mosby v. Devine……………………………….………………... Claudia J. Matzko 

NOTES & COMMENTS 

Constitutional Home Rule in Rhode Island.................................... Terrence P. Haas 

A Threat to the Security of Private 

Property Rights: Kelo v. City of New London 

and a Recommendation to the Supreme Court 

of Rhode Island………………...………………………………….Christina M. Senno 

2005 SURVEY OF RHODE ISLAND LAW 

CASES 

Civil Procedure 

Gliottone v. Ethier, 

870 A.2d 1022 (R.I. 2005)……………………….……………….Russell E. Farbiarz 

Constitutional Law 

Gem Plumbing & Heating Co., Inc. v. Rossi, 

867 A.2d 796 (R.I. 2005)………………………………................ William J. Delaney 

In re Advisory Opinion to the House of 

Representatives (Casino II), 

885 A.2d 698 (R.I. 2005)………………………………………... Margreta Vellucci 

McKenna v. Williams, 

874 A.2d 217 (R.I. 2005)…………………………………………Aaron R. Baker & 

Bridget N. Longridge

Young v. City of Providence, 

396 F. Supp. 2d 125 (D.R.I. 2005)................................................. Esme Noelle DeVault 

Contract Law 

D’Amico v. Johnston Partners, 

866 A.2d 1222 (R.I. 2005)…………………………………..…… Leah J. Donaldson 

Contract/Insurance Law 

Sanzi v. Shetty, 

864 A.2d 614 (R.I. 2005)…………….……….………………….. Matthew J. Costa 

Criminal Law 

State v. Luanglath, 

863 A.2d 631 (R.I. 2005)……………………..………………….. Jessica Bosworth 

State v. Perez, 

882 A.2d 574 (R.I. 2005)……..………………………………….. Christina M. Senno 

Criminal Law/Procedure 

In re Tavares, 

885 A.2d 139 (R.I. 2005)…………………………..............…….. Hinna M. Upal 

Criminal Procedure 

Raso v. Wall, 

884 A.2d 391 (R.I. 2005)………..………………............……….. Esme Noelle DeVault 

Disability/Insurance Law 

Marques v. Harvard Pilgrim Healthcare of New England, 

883 A.2d 742 (R.I. 2005)……………………………..............….. Kimberly A. Tracy 

Employment Law 

DeCamp v. Dollar Tree Stores, 

875 A.2d 13 (R.I. 2005).................................................................. Matthew Jill 

Family Law 

Gorman v. Gorman, 

883 A.2d 732 (R.I. 2005)……………………………..............….. Elizabeth A. Suever

In re Mackenzie C., 

877 A.2d 674 (R.I. 2005)…………………..…………........…….. Esme Noelle DeVault 

Property Law 

Palazzolo v. State, 

No. 88-0297, 2005 WL 1645974 (R.I. Super. July 5, 2005)…...... Colin M. McNiece 

State Affairs and Government 

Tanner v. Town Council of East Greenwich, 

880 A.2d 784 (R.I. 2005)…………………………………..…….. Kevin Rolando 

Tort Law 

Esposito v. O’Hair, 

886 A.2d 1197 (R.I. 2005)………….……………………….…… Jason Van 

Volkenburgh 

Perrotti v. Gonicberg, 

877 A.2d 631 (R.I. 2005)………………………………...………. Christine List 

Seide v. State, 

875 A.2d 1259 (R.I. 2005)...……..………………………………. Brian K. Koshulsky 

Tedesco v. Connors, 

871 A.2d 920 (R.I. 2005)…………….…………………….…….. Terrence Haas 

Tort/Property 

Lucier v. Impact Recreation, Ltd., 

864 A.2d 635 (R.I. 2005)……………………………..............….. Mark H. Hudson 

LEGISLATION 

2005 Public Laws of Note

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Articles 

Getting the Lead Out: 

How Public Nuisance Law Protects 

Rhode Island’s Children 

Aileen Sprague and Fidelma Fitzpatrick 

INTRODUCTION 

On February 22, 2006, a jury of Rhode Islanders delivered a 

decisive verdict in a case that had been the source of significant 

political, social, and economic debate since it was filed in 1999. 

On that day, a jury of six, who had devoted more than four months 

of their lives hearing evidence in the longest civil jury trial in 

Rhode Island’s history, 1 delivered a victory for public health 

advocates by rendering a verdict determining that: (1) the 

presence of lead pigments in paints throughout Rhode Island was 

a public nuisance; (2) three former manufacturers, suppliers, and 

promoters of lead pigments - Sherwin Williams, Millennium 

Holdings, and NL Industries (hereinafter “Lead manufacturers” or 

“Defendants”) – were liable for that public nuisance; and (3) the 

responsible defendants were required to abate the existing 

nuisance. 2 

The factual premise of the State’s suit was simple. It 

1. See Peter B. Lord, Jurors in Lead-Paint Trial Say They’re Proud of 

Verdict, THE PROVIDENCE SUNDAY JOURNAL, March 12, 2006, at B1 (noting 

that “court officials believe [the trial] was the longest civil trial in state 

history.”) 

2. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226. 

603

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604 ROGER WILLIAMS UNIVERSITY LAW REVIEW [Vol.11:603 

recognized that lead poisoning poses a very serious risk to a large 

percentage of children under six years of age in Rhode Island. 3 

The primary reason that lead poisoning has such a widespread 

adverse impact on the health of Rhode Island children is that lead 

is still present in and on homes and buildings throughout our 

state despite the fact that it was banned for residential use in the 

United States in 1978. 4 Furthermore, the action recognized that 

the manufacturers of lead products used in paint (hereinafter 

“Lead”) and their trade association were responsible for this harm 

to Rhode Islanders because they manufactured and promoted 

Lead for use in and on homes and buildings throughout the State 

of Rhode Island despite their knowledge of its toxicity. 5 In short, 

the defendants knew Lead was dangerous but continued to sell it 

in Rhode Island. 6 In addition, they also failed to warn parents, 

homeowners, or the public about the dangers of lead based paint. 7 

For decades, many groups, including State government, 

3. See R.I. KIDS COUNT, R.I. KIDS COUNT FACT BOOK 66 (2005). 

4. See 16 C.F.R. § 1303.1 (2005) (“the Consumer Product Safety 

Commission declares that paint and similar surface-coating materials for 

consumer use containing lead or lead compounds . . . are banned hazardous 

products . . .”. See also Trial Testimony of Dr. Patricia Nolan, Nov. 14, 2005 

(am) at 57. 

5. Feb. 10, 2006 Trial Tr. at 4-5 (wherein counsel for the State argued in 

closing arguments that “these four defendants knew that their lead products 

were hazardous to kids, they knew that their lead pigment could 

permanently hurt kids, they knew that it caused brain damage, they knew it 

killed kids, and they even knew how it happened. And they chose to sell it 

anyway.”); 

6. Feb. 10, 2006 Trial Tr. at 35-36 (closing argument from State’s 

counsel that “[t]hese defendants I just mentioned [NL, ARCO and 

Millennium Holdings] were told that kids were poisoned by lead in paint, and 

instead of embracing them, treating them, or offering to remove the toxic 

substance from their kids homes, they continued to promote their lead 

without even a whisper of the hazard. They poured more money into pro lead 

ads and more resources and did the [sic] into the promotion of lead to 

increase their sales. And all that add layers and layers of paints in our 

homes today that need to be abated.”) See also Testimony of Professor Gerald 

Markowitz, Dec. 8, 2005(am), at p. 21; Markowitz, Dec. 15, 2005 (am) at p. 97; 

Testimony of Professor David Rosner Jan. 13, 2006, at p. 94. 

7. Nov. 1, 2005 Trial Tr. at 33; see also Feb 10, 2006 Trial Tr. at 

32.(closing arguments from State’s counsel arguing that “The defendants 

chose, they chose not to educate people about the dangers of their product. 

The defendants chose not to substitute safe alternatives. The defendants 

chose not to warn. The defendants chose to recklessly promote, and the 

defendants chose to downplay the hazards.”)

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2006] GETTING THE LEAD OUT 605 

homeowners and landlords, parents, and child health and housing 

advocates, worked to solve the lead poisoning problem in Rhode 

Island. Through the litigation, after years of bearing the burden 

of this public health scourge, the Attorney General and the State 

sought to have the Lead manufacturers share their responsibility 

for the lead poisoning crisis in Rhode Island. 8 

The legal premise was also simple. The State maintained 

that the Lead manufacturers had created an environmental 

hazard which they, like all who pollute the environment, should 

clean up. The case was brought under the common law claim of 

public nuisance, which imposes liability on those who 

“unreasonabl[y] interfere[] with a right common to the general 

public” such as the “the health, safety, peace, comfort or 

convenience of the general community.” 9 Public nuisance law 

allowed the State to pursue the public health remedy of 

abatement, which “means the public nuisance is to be rendered 

harmless or suppressed.” 10 Such a remedy would work toward a 

goal of primary prevention by protecting children before they are 

poisoned. Leading public health advocates have maintained that 

this strategy is essential to preventing lead poisoning in the 

future. 11 As the Centers for Disease Control recently concluded, 

8. Feb 10, 2006 Trial Tr. at 58 (State’s closing argument stating “It’s 

right, it’s right, Ladies and Gentlemen, for the defendants to assume their 

responsibility after standing by and watching others carry it for so long.”); 

Feb 9, 2006 Trial Tr. at 62. (State’s counsel arguing in closing that “[the 

State, homeowners, parents] are the ones who are responsible for the public 

health success story. It’s taken care of 75 percent of the children who were 

still lead poisoned—who were lead poisoned. But 25 percent of children are 

left. 25 percent of children who were lead poisoned ten years ago are still 

getting lead poisoned today and that’s not okay. And so what we’re here 

saying is, it’s these defendants, these defendants should come and help share 

that responsibility.”); Nov. 1, 2005 Trial Tr. at 97 (opening statements from 

State’s counsel that “[t]he State has taken responsibility. Taxpayers and 

homeowners have taken responsibility. Parents have taken responsibility. 

We are that temporary Band-Aid, the cover up, the treatment. But there’s 

one group that has never contributed to the solution. This trial is about 

telling the defendants it’s time to help fix the lead paint problem they created 

once and for all.”) 

9. Citizens for Pres. of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I. 

1980) (quoting Copart Indus., Inc. v. Consol. Edison Co., 362 N.E.2d 968, 971 

(N.Y. 1977)). 

10. Feb. 13, 2006 Trial Tr. at 131. 

11. See U.S. DEP’T OF HEALTH AND HUMAN SERVICES, CENTERS FOR 

DISEASE CONTROL AND PREVENTION, PREVENTING LEAD POISONING IN YOUNG

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the “answer to lead poisoning is prevention. The alternative of 

intervening only after a child has been harmed is unacceptable 

and serves neither the interests of the child nor the property 

owner nor future generations of children.” 12 

On February 13, 2006, after nearly ten weeks of receiving 

evidence, the trial court gave jury instructions which covered the 

law of public nuisance, among other things. 13 After eight days of 

deliberation, the jury returned a unanimous verdict in favor of the 

state. 14 Post-verdict interviews with the jurors revealed that the 

process was a perfect example of the way the jury system in the 

United States is supposed to work: the jurors recounted that they 

put aside their own personal philosophical and social beliefs and 

applied only the facts they heard during trial to the law as it was 

given to them. 15 

CHILDREN 4 (2005) (“Because lead-based paint is the most important source of 

lead exposure for young children, the first essential element of primary 

prevention is implementation of strategies to control lead paint-contaminated 

house dust and soil and poorly maintained lead paint in housing.”); U.S. 

DEP’T OF HEALTH AND HUMAN SERVICES, CENTERS FOR DISEASE CONTROL AND 

PREVENTION, PREVENTING LEAD POISONING IN YOUNG CHILDREN (1991), 

http://www.cdc.gov/nceh/lead/Publications/books/plpyc/contents.htm 

(“Eradicating childhood lead poisoning requires a long-term active program of 

primary lead-poisoning prevention, including abatement of lead-based paint 

hazards in homes, day-care centers, and other places where young children 

play and live.”); PRESIDENT’S TASK FORCE ON ENVTL. HEALTH RISKS AND SAFETY 

RISKS TO CHILDREN, U.S. DEP’T OF HOUS. AND URBAN DEV., ELIMINATING 

CHILDHOOD LEAD POISONING: A FED. STRATEGY TARGETING LEAD PAINT 

HAZARDS 35 (2000) (“The most important part of the treatment of childhood 

lead poisoning is the identification and elimination of the sources of lead 

exposure. In addition, case management services are needed to coordinate 

interventions related to environmental, housing, medical, and social 

factors.”); Id. at 6 (“The benefit of permanently abating lead paint is 

considerably greater because more children would benefit over a considerable 

longer time span. The quantified monetary benefits may underestimate the 

actual benefits because of the many unquantifiable benefits associated with 

eliminating childhood lead paint poisoning.”) 

12. LEAD-BASED PAINT HAZARD REDUCTION AND FINANCING TASK FORCE, 

U.S. DEP’T OF HOUS. AND URBAN DEV., PUTTING THE PIECES TOGETHER: 

CONTROLLING LEAD HAZARDS IN THE NATION’S HOUS. 8 (1993). 

13. See State of Rhode Island v. Atlantic Richfield Co., C.A.No. 99-5226, 

Feb 13, 2006, Jury Instructions 

14. See State of Rhode Island v. Atlantic Richfield Co., C.A.No. 99-5226, 

Feb. 22, 2006, Verdict Form 

15. See Lord, supra note 2, at B4 (reporting that “the jurors said they 

carefully followed the judge’s instructions to focus only on the evidence.”). See 

also Peter Krouse, Verdict Raises Risk for Paint Companies, CLEVELAND

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The verdict, which was the culmination of the jurors’ 

scrupulous adherence to the law and facts presented in the case, 

should have put an end to the heated social and political debate 

that surrounded the suit since its inception in 1999. 16 Instead, the 

verdict fueled more heated debates, especially in light of the large 

decrease in the value of the publicly traded defendants – Sherwin 

Williams and NL Industries – that accompanied the verdict. 17 

Corporate interests have flooded the media with criticism of the 

jurors’ work, questioning the decision that they reached, the 

manner in which the trial justice conducted the litigation, and 

even the wisdom of Rhode Island’s well-established public 

PLAIN DEALER, April 2, 2006, at A1. 

16. Throughout the course of the litigation, the issue drew strong 

opinions from lead poisoning prevention groups and public health advocates 

on one hand and groups such as the Chamber of Commerce, local realtors 

associations, and newspaper editorial writers on the other. See Neil Gendel, 

Letter to the Editor, Hit oil companies after paint makers, THE PROVIDENCE 

JOURNAL, April 7, 2006, at B5 (“the people who represent us are catching up 

to the successors of the manufacturers and sellers of a product [leaded paint] 

known to be inherently dangerous to our health.”); See Edward Achorn, 

Bizarre, Unfair Lead-Paint Ruling, THE PROVIDENCE JOURNAL, April 4, 2006 

(saying that the verdict “on its face seem unjust”); See Julie Creswell, The 

Nuisance That May Cost Billions, THE NEW YORK TIMES, April 2, 2006, at 

Section 3 (noting that “the jury’s decision was particularly shocking”); See 

Jack McConnell, Why judgment on lead paint was right, THE PROVIDENCE 

JOURNAL, March 17, 2006 (“[c]learly, lead poisoning is a public nuisance in 

Rhode Island”); See Providence Journal Editorial Staff, Blaming the wrong 

people, THE PROVIDENCE JOURNAL, March 6, 2006 (noting that bad landlords 

were the real causes of lead poisoning in Rhode Island); See Editorials, Lead 

paint decisions show clear reasoning, PROVIDENCE BUSINESS NEWS, March 6- 

12, 2006, at 28; See Editorial, Motley Legal Crew, WALL STREET JOURNAL, 

February 27, 2006, at A14 (“There are so many screwy aspects to this case 

that it’s hard to know where to begin.”); See Jane E. Brody, Dally No Longer: 

Get the Lead Out, THE NEW YORK TIMES, January 17, 2006, at F6 (“no one at 

any level of society, not even those with seven-figure incomes, can afford to be 

complacent about the exposure of children to lead in home and play 

environments.”) 

17. See Creswell, supra note 17 (“It was a surprising and devastating 

verdict for the industry, and the reaction was swift and severe. The stocks of 

the paint companies tumbled, wiping out billions of dollars in market value 

that afternoon.”); Peter B. Lord, 3 Companies Found Liable in Lead Paint 

Nuisance Suit, THE PROVIDENCE JOURNAL-BULLETIN, Feb. 23, 2006, at A1 

(“The value of Sherwin Williams stock began to plummet within moments of 

the verdict. By the end of the day, the value of the company’s shares dropped 

by nearly 18 percent—a loss totaling $1.3 billion. The value of NL Industries 

stock dropped by 8 percent, for a total loss of $642 million.”).

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nuisance law. 18 

While words like “landmark” 19 and “historic” 20 have been used 

to describe this litigation, these adjectives apply to the progress 

the State of Rhode Island has made against corporations who 

have, through aggressive litigation strategy and scorched earth 

discovery, 21 successfully immunized themselves from liability for 

their actions for more than twenty years. 22 As discussed in this 

article, however, these adjectives do not apply to the legal and 

factual premise of the State’s case. Instead, the Attorney 

General’s responsibility to bring this type of action, as well as the 

controlling law of public nuisance, is well-grounded in over a 

century of Rhode Island jurisprudence. The concept of public 

nuisance is hardly a landmark or novel cause of action; it is firmly 

rooted in the common law, with cases in Rhode Island dating back 

to 1800s. 23 Furthermore, the law of Rhode Island in this regard is 

18. See Creswell, supra note 17 (“The defense lawyers . . . blame what 

they call Rhode Island’s quirky public nuisance laws. They also contend that 

the judge overseeing this case had severely limited their ability to gather 

evidence and present a defense, and say that he may have given erroneous 

instructions to the jury.”) 

19. See Peter B. Lord, In a Surprise Move, Defense Rests in Lead-Paint 

Trial, THE PROVIDENCE JOURNAL, January 26, 2006, at B1; Lead-Paint Jury 

Deadlocks Briefly Before Trying Again, The Providence Journal, February 16, 

2006. 

20. See Lord, supra note 2, at B1. 

21. Throughout the course of preparation for the November 2005 trial, 

the defendants deposed between 140 and 160 Rhode Island landlords, 

homeowners, and parents and hundreds of other fact and expert witnesses. 

In addition, they requested and received millions of pages of documents from 

Rhode Island departments, such as the Departments of Health, 

Environmental Management, Administration, Human Services, Office of the 

Governor, Office of the Attorney General, Business Regulation, and 

Corrections, and the General Assembly. 

22. In 1987, the first case filed against the lead industry was a personal 

injury suit brought under the theory of market share liability. In Santiago v. 

Sherwin-Williams Company, the First Circuit declined to overturn the lower 

court’s ruling that market share liability does not apply in Massachusetts. 3 

F.3d 546, 551 (1st Cir. 1993). Several other similar personal injury suits filed 

in Massachusetts, Maryland, and Pennsylvania were either voluntarily or 

involuntarily dismissed in the mid 1990s after the negative ruling in 

Santiago. Add cites to these These rulings, based on principles of product 

liability law, paved the way for the public nuisance cause of action filed by 

the State of Rhode Island in October 1999. Other governmental entities have 

filed similar public nuisance suits against the lead industry since 1999. 

citation 

23. See Simmons v. Cornell, 1 R.I. 519 (1851); Hughes v. Providence &

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not idiosyncratic or different from public nuisance law around the 

country. Not only is there significant historical precedent 

nationwide for Rhode Island’s suit, but other courts around the 

country that have also considered the applicability of public 

nuisance law to the lead poisoning crisis and the conduct of these 

defendants have issued decisions mirroring those of the Rhode 

Island Superior Court. 24 

Part I of this article provides an extensive overview of the 

public nuisance claim, explores that claim’s deep roots in Rhode 

Island law and refutes arguments typically made against applying 

public nuisance to remedy communal harms, such as lead 

poisoning. Part II discusses the significance of the Rhode Island 

verdict and discusses the remedies that the State will make on 

behalf of the Rhode Islanders. Part III provides an overview of 

successful cases brought in other states by government entities 

against the Lead defendants. The article concludes that these 

companies will no longer be able to use carefully crafted legal 

defenses to shield themselves from responsibility for the lead 

poisoning crisis that plagues the country and its children. 

I. RHODE ISLAND’S PUBLIC NUISANCE CLAIM 

A. The State’s Claim Is Consistent with Almost a Century of 

Rhode Island Precedent 

The filing of this litigation in 1999 against the Lead 

manufacturers was not based on a long shot theory of public 

nuisance that has never been previously applied to environmental 

torts affecting the public at large. Public nuisance has long been 

utilized by the Attorney General to bring suits on behalf of the 

public to remedy public harms. 25 

W.R. Co., 2 R.I. 493 (Sept. term. 1853); State v. Johnson, 3 R.I. 94 (1855); 

State v. Keeran, 5 R.I. 497 (1858); Clark v. Peckham, 10 R.I. 35 (1871); 

Thornton v. Grant, 10 R.I. 477 (1873); Engs v. Peckham, 11 R.I. 210 (1875). 

24. See In Re Lead Paint Litigation, No. A-1946-02T3, 2005 WL 1994172, 

at *14 (N.J. Super. A.D. Aug 17, 2005); City of Milwaukee v. NL Industries, 

Inc., 691 N.W. 2d 888, 893 (Wisc. App. 2004); County of Santa Clara v. 

Atlantic Richfield Co., 137 Cal.App.4th 292, 333; 40 Cal.Rptr.3d 313, 348 

(Cal.App. 6 Dist. 2006). 

25. The Rhode Island Attorney General’s responsibility to prosecute 

public nuisances injurious to the health and welfare of residents of the State 

is consistent with authority from the majority of jurisdictions across the

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Rhode Island courts have recognized the exhaustive common 

law authority of the Attorney General to commence suit to redress 

public harms: 

In this state it was long ago settled that ‘[s]uits for the 

public should be placed in public and responsible 

hands.’ . . . The public officer vested with that authority is 

the attorney general of the state. Only he may sue to 

redress a purely public wrong . . . 26 

Further, the Attorney General’s authority to maintain such 

actions is also derived from the Rhode Island Constitution and the 

Rhode Island General Laws. The Constitution reserves for the 

Attorney General all of the duties and powers of the office as 

existed at the time the Constitution was adopted. 27 Since the 

country. See Lawton v. Steele, 152 U.S. 133, 136 (1893) (State’s police power 

includes “everything essential to the public safety, health, and morals, and [] 

justif[ies] the destruction or abatement . . . of whatever may be regarded as a 

public nuisance”); People v. Nebbia, 186 N.E. 694, 699 (N.Y. 1933); Minnesota 

ex rel. Humphrey v. Standard Oil Co., 568 F.Supp. 556, 563 (D. Minn. 1983) 

(“the parens patriae doctrine allows a state to maintain a legal action where 

state citizens have been harmed, where the state maintains a quasi-sovereign 

interest. A state maintains a quasi-sovereign interest [] where the health 

and well-being of its residents is affected. . .”) (internal citations omitted); 

State ex rel. Patterson v. Warren, 180 So.2d 293, 299 (Miss. 1965) (at 

common law, the attorney general had inherent authority “to institute 

proceedings to abate public nuisances, affecting public safety and 

convenience, to control and manage all litigation on behalf of the state, and to 

intervene in all actions which were of concern to the general public”); 

Wilsonville v. SCA Services, Inc., 426 N.E.2d 824, 837 (Ill. 1981); 

Commonwealth v. Barnes & Tucker Co., 319 A.2d 871, 885 (Pa. 1974) (“The 

power of the Attorney General to abate public nuisances is an adjunct of the 

inherent police power of the Commonwealth.”); 58 AM. JUR. 2D Nuisances § 50 

(2002). 

26. McCarthy v. McAloon, 83 A.2d 75, 78 (R.I. 1951) (internal citations 

omitted). See also State of Rhode Island v. Lead Indus. Ass’n, No. 99-5226, 

2001 WL 345830, at *3 (R.I. Super. April 2, 2001) (“the Attorney General’s 

authority in bringing this action is comprised of that which existed at 

common law, as well as that allowed by statute.”); Pine v. Vinagro, No. PC 

95-4928, 1996 WL 937004, at *20 (RI. Super. Nov. 4, 1996) (“Among the 

awesome responsibilities of the Attorney General is that of prosecuting a 

public nuisance. . .”). 

27. See Motolla v. Cirello, 789 A.2d 421, 424 (R.I. 2002) (“Pursuant to 

article 9, section 12, of the Rhode Island Constitution, the duties and powers 

of the Attorney General remained the same under the Constitution as existed 

at the time the Constitution was adopted, ‘or as from time to time may be 

prescribed by law.’”); Suitor v. Nugent, 199 A.2d 722, 723 (R.I. 1964) (“The 

constitution did not purport to create such an office [of Attorney General], but

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2006] GETTING THE LEAD OUT 611 

power and responsibility to prosecute public nuisance actions 

existed in the Office of Attorney General prior to the adoption of 

the Constitution, it remains one of the office’s constitutionally 

proscribed duties. 28 Similarly, R.I.G.L. § 42-9-5 provides that the 

“attorney general shall commence and prosecute to final judgment 

and execution those other legal or equitable processes, and shall 

perform those other duties which are or may be required of him or 

her by law; except insofar as he or she may have been required to 

act as the legal officer of the department of health, those functions 

are hereby transferred to the chief counsel of the division of legal 

services of the department of health.” 29 Historically, the Attorney 

General of Rhode Island has prosecuted companies for conduct 

that has put the health and welfare of the citizens of Rhode Island 

at risk. 30 

Under Rhode Island law, public nuisance is defined 

expansively as “an unreasonable interference with a right common 

to the general public: it is behavior that unreasonably interferes 

with the health, safety, peace, comfort or convenience of the 

general community.” 31 An interference can be considered 

recognized it as existing and provided for continuance of the powers and 

duties exercised by its occupant prior to the adoption of the constitution.”). 

28. See State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2003 

WL 1880120, at *3 (R.I. Super. Mar. 20, 2003) (the “common law equity 

power as to public nuisances [was] vested in the Attorney General even prior 

to the adoption of our State Constitution.”); Greenough v. Industrial Trust 

Co., 82 A. 266, 266 (R.I. 1912) (recognizing an “information in equity brought 

in the superior court by the Attorney General, in behalf of the state, to abate 

a public nuisance. . .”); Engs v. Peckham, 11 R.I. 210, 212 (R.I. 1875) (finding 

that a “public nuisance . . .may be proceeded against by information in equity 

and be abated. . .”). 

29. R.I.Gen.Laws § 42-9-5 (1993). See also R.I.Gen.Laws § 42-9-6 (1993). 

30. See Pine v. Shell Oil Co., No. 92-0346B, 1993 U.S. Dist. LEXIS 21043, 

at *14 (D.R.I. August 23, 1993) (wherein the Attorney General sued Shell Oil 

company under public nuisance claim after a service station released 

hydrocarbons into the environment, polluting ground water); Wood v. Picillo, 

443 A.2d 1244, 1245 (R.I. 1982) (wherein the Attorney General sued property 

owners under public nuisance as a result of chemical disposal operations at 

their property and sought to have them finance cleanup and removal of toxic 

wastes); Whitehouse v. New England Ecological Dev., Inc., No. 98-4525, 1999 

WL 1001188, at *6 (R.I. Super. Oct. 28, 1999) (wherein the Attorney General 

sued solid waste disposal company under public nuisance alleging that their 

excessive disposal of out-of-state waste in Rhode Island constitutes a public 

nuisance). 

31. Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59

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“unreasonable” if: 

the conduct involves a significant interference with the 

public health, the public safety, the public peace, the 

public comfort or the public convenience, or [] the conduct 

is proscribed by a statute, ordinance or administrative 

regulation, or [] the conduct is of a continuing nature or 

has produced a permanent or long-lasting effect, and, as 

the actor knows or has reason to know, has a significant 

effect upon the public right. 32 

In considering the elements a plaintiff would have to prove in 

order to establish that some instrumentality was an unreasonable 

interference with a right common to the general public, the Rhode 

Island Supreme Court noted that “liability in nuisance is 

predicated upon unreasonable injury rather than unreasonable 

conduct.” 33 Therefore, pursuant to Rhode Island precedent, the 

plaintiff bringing the nuisance claim must “demonstrate the 

existence of the nuisance, and that injury has been caused by the 

nuisance complained of.” 34 

Public nuisance law also addresses the issue of liability. The 

social impact and the benefits of living in an ordered society 

require those who do harm that rises to the level of a public 

nuisance to remediate that harm to the public, even if it that 

harm was done innocently. In order to prove liability for the 

nuisance, the State had to show that the Defendants participated 

in creating or maintaining the public nuisance, not that lead 

pigment was a defective product or that Defendants’ participation 

in creating or maintaining the public nuisance was tortious. Here, 

the trial court adopted the Restatement (Second) of Torts, section 

834 at 149: “One is subject to liability for a nuisance caused by an 

activity, not only when he carries on the activity, but also when he 

(R.I. 1980) (citing Copart Industries, Inc. v. Consolidated Edison Co., 362 

N.E.2d 968, 971 (N.Y. 1977)). 

32. RESTATEMENT (SECOND) OF TORTS § 821B (1979). 

33. Wood, 443 A.2d at 1247. See also Braun v. Iannotti, 175 A. 656, 657 

(R.I. 1934) (“‘[i]n cases of damages by nuisance it is considered that the 

injurious consequences resulting from the nuisance, rather than the act 

which produces the nuisance, is the cause of action. . .’” (internal citations 

omitted). 

34. Citizens for Pres. of Waterman Lake, 420 A.2d at 59. (internal 

citations omitted).

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participates to a substantial extent in carrying it on.” 35 

Significantly, liability for a public nuisance is not premised on 

tort-based notions of fault or negligence. Instead, public nuisance 

is more akin to a strict or absolute liability claim because it is not 

fault-based. As the Rhode Island Supreme Court has found: 

Distinguished from negligence liability, liability in 

nuisance is predicated upon unreasonable injury rather 

than upon unreasonable conduct. Thus, plaintiffs may 

recover in nuisance despite the otherwise nontortious 

nature of the conduct which creates the injury. 

Generally, this court has not required plaintiffs to 

establish negligence in nuisance actions. 36 

35. State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2005 WL 

1331196, at *2 (R.I. Super. June 3, 2005); State of Rhode Island v. Lead 

Industries Ass’n¸ No. 99-5226, 2001 WL 345830, at *7 (R.I. Super. April 2, 

2001) (quoting RESTATEMENT (SECOND) OF TORTS § 834 (1979)). In addition, 

the court adopted comment (d) to § 834, which states “when a person is only 

one of several persons participating in carrying on an activity, his 

participation must be substantial before he can be held liable for the harm 

resulting from it. This is true because to be a legal cause of harm a person’s 

conduct must be a substantial factor in bringing it about.” RESTATEMENT 

(SECOND) OF TORTS § 834 cmt. d (1979). The court further found that “[a]lso of 

significance is the provision of comment (e) to the effect that if the activity 

engaged in lead to the creation rather than to the maintenance of the 

nuisance, the actor who carried on the activity ‘. . . or who participated to a 

substantial extent in the activity is subject to the liability for a nuisance, for 

the continuing harm.’ This is so even after he has withdrawn from the 

activity and even if he is not in a position to stop the harm, or to abate the 

condition.” Lead Industries Ass’n, 2005 WL 1331196, at *2. See also 

RESTATEMENT (SECOND) OF TORTS, § 834 cmt. e (1979). 

36. Wood, 443 A.2d at 1247-48 (internal citations omitted). See also New 

York v. Shore Realty Corp., 759 F.2d 1032, 1051 (2d Cir. 1985) (finding that 

liability for public nuisance exists “irrespective of negligence or fault”); 

United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960, 968 

(West. Dist. N.Y. 1989) (“‘fault is not an issue, the inquiry being limited to 

whether the condition created, not the conduct creating it, is causing damage 

to the public’”) (quoting State v. Schenectady Chemicals, Inc., 459 N.Y.S.2d 

971, 979 (N.Y. Sup. Ct. 1983)); Concerned Citizens of Bridesburg v. City of 

Philadelphia, 643 F. Supp. 713, 726 (E.D. Pa. 1986) (“At common law, neither 

individuals nor municipalities have the right to maintain for any period of 

time activities that constitute a public nuisance, irrespective of lack of fault 

or due care.”); Branch v. Western Petroleum, Inc., 657 P.2d 267, 274 (Utah 

1982) (public nuisance “is not centrally concerned with the nature of the 

conduct causing the damage, but with the nature and relative importance of 

the interests interfered with or invaded.”).

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This important distinction between nuisance and negligence 

liability underscores the inapplicability of product liability 

concepts – both affirmative requirements and defenses thereto – 

to public nuisance suits. 

The Rhode Island Supreme Court has recognized for almost a 

century that public nuisance provides a cause of action in 

environmental contamination and pollution cases. For example, 

in Payne & Butler v. Providence Gas Co., our highest court 

considered whether a manufacturer that polluted public and/or 

private waters could be found liable for creating a public 

nuisance. 37 In concluding the manufacturer could be found liable, 

the court stated: 

any manufacturer who allows his deleterious waste 

product to contaminate the waters of the State, be they 

public or private, is liable to any person who is injured 

thereby in his private capacity and apart from being 

merely one of the public, provided he can trace to its 

origin the noxious substance whereby he is damaged. 38 

Furthermore, in 1982, the Rhode Island Supreme Court 

issued a seminal opinion considering the applicability of public 

nuisance to a modern environmental contamination and pollution 

case. 39 Wood v. Picillo set the tone for the application of public 

nuisance law to environmental hazard cases. 40 In Wood, the 

Attorney General commenced a private and public nuisance suit 

against certain defendants who owned and maintained a 

hazardous waste dump on their property. 41 The Rhode Island 

Supreme court held that the “essential element of an actionable 

nuisance is that persons have suffered harm or are threatened 

with injuries that they ought not have to bear.” 42 In applying this 

public nuisance law to the facts of the case, the Court upheld the 

37. 77 A. 145, 151 (R.I. 1910). 

38. Id. See also Braun v. Iannotti, 189 A. 25 (1937) (public nuisance 

created by emitting smoke and soot from a smokestack). 

39. See Tom Kuhnle, The Rebirth of Common Law Actions for Addressing 

Hazardous Waste Contamination, 15 STAN. ENVTL. L. J. 187, 214-15 (1996) 

(recognizing Rhode Island was one of the first states to uphold a public 

nuisance claim in a modern hazardous waste contamination case). 

40. 443 A.2d 1244, 1245 (R.I. 1982). 

41. Id. 

42. Id. at 1247- 49.

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trial court’s determination that the defendants’ conduct 

constituted a public nuisance because their storage of the 

hazardous and toxic waste on the defendant’s private property 

posed a threat to the health of both aquatic wildlife and humans. 43 

Public nuisance law in Rhode Island, with its rich, wellreasoned 

decisions and clear holdings with respect to 

environmental torts, was clearly applicable to the factual scenario 

of the serious environmental and health problem facing all Rhode 

Islanders from lead poisoning, especially the state’s children. 

Moreover, the unique and powerful authority entrusted to the 

Attorney General to bring nuisance suits to prosecute threats and 

injuries against the public health, safety and welfare predated the 

adoption of the Rhode Island Constitution. The Attorney General 

can therefore draw from this authority to support the state’s 

public nuisance claim against the lead manufacturers. 

B. Legal Challenges to a Modern Application of Public Nuisance 

To Lead Pigment 

Despite the seemingly simple and straightforward 

pronouncement of public nuisance law in Rhode Island, 

defendants raised a series of seemingly endless questions 

concerning the bounds of the public nuisance law. First, the Lead 

manufacturers raised a host of questions at the outset of the 

litigation on motions to dismiss, urging the trial court to dismiss 

the complaint for following reasons: (1) these defendants cannot be 

liable for a public nuisance because they are not in current control 

of the property upon which the nuisance is found; (2) 

manufacturers of products cannot be held liable for a public 

nuisance; and (3) lead poisoning is a private, not a public, issue. 44 

The trial court rejected each of these arguments, permitting the 

State’s claims to go forward. 45 

Following failed attempts to dismiss the case at the pleading 

stage, the defendants also engaged in significant motion practice 

throughout the litigation aimed at aborting the Attorney General’s 

suit. Though the legal arguments were ultimately unsuccessful, 

they provide an interesting framework for considering the 

43. Id. at 1248. 

44. State v. Lead Ind. Assn., Inc., 2001 WL 345830 (R.I.Super.) 

45. Id.

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boundaries of public nuisance law and its interplay with products 

liability law. In addition to those identified above at the pleading 

stage, Defendants presented the following issues to the trial court 

during the course of the trial: (1) whether the Rhode Island Lead 

Poisoning Prevention Act pre-empts the Attorney General’s 

constitutional, statutory and common law authority to bring a 

public nuisance action; (2) whether the State is required to 

identify the presence of particular lead pigment on particular 

walls in order to succeed in its public nuisance claim; and (3) 

whether a manufacturer of a legal product can be held liable for a 

public nuisance. 

1. The Defendants’ Motion to Dismiss 

In lengthy written and oral arguments, the defendants raised 

a host of issues seeking to dismiss the complaint in its entirety, 

including the public nuisance claim. When considered in light of 

prevailing public nuisance law, the trial court’s rejection of the 

defendants’ arguments against the State’s public nuisance claim is 

easily understood. First, public nuisance law in Rhode Island and 

throughout the country squarely holds that those who either 

created or contributed to the creation of a public nuisance may be 

liable for that nuisance despite the fact that they are not in 

physical control of the real property in question. In Friends of 

Sakonnet v. Dutra, the United States Federal District Court for 

the State of Rhode Island found that Rhode Island law does not 

bar a public nuisance claim against a defendant that no longer 

controls the property in question: 

This Court has discovered no Rhode Island (or other) 

precedent that bars recovery of nuisance damages simply 

because the defendants no longer control the 

instrumentality alleged to have caused the nuisance. If 

Rhode Island courts allow suits for nuisance damages to 

go forward although the nuisance itself has already been 

abated, it follows that suits should be allowed . . . against 

one who is alleged to have caused damages by a nuisance 

even if that person no longer controls the alleged 

nuisance. 46 

46. 738 F. Supp. 623, 633 (D.R.I. 1990) (internal citations omitted).

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The Rhode Island Supreme Court and Rhode Island’s federal 

district court have applied this principle to numerous public 

nuisance cases over the last century, properly concluding that a 

defendant’s creation of a public nuisance renders him liable for the 

resulting damages regardless of current control of the nuisance. 47 

For example, as early as 1910, the Rhode Island Supreme Court 

recognized that a manufacturer of chemicals could be held liable 

under public nuisance when their chemicals contaminated either 

private or public waters in Rhode Island. 48 Although the 

chemical manufacturer was not in control of the private or public 

waters it contaminated, the court found the manufacturer liable 

for creating a public nuisance. 49 Rhode Island’s application of 

public nuisance liability to those who do not currently control the 

real property upon which the nuisance is located is consistent with 

the law across the country. 50 

47. Similarly, other courts have established public nuisance liability in 

cases where a defendant created a nuisance on either public or private 

property not controlled by the defendant. See, e.g. Anderson v. W.R. Grace & 

Co., 628 F. Supp. 1219 1222 (D. Mass. 1986) (groundwater contamination); 

California ex rel. California Dep’t of Toxic Substances Control v. Campbell, 

138 F.3d 772, 775 (9th Cir. 1998), cert. denied, 525 U.S. 822 (groundwater 

contamination); Branch v. Western Petroleum, Inc., 657 P.2d 267 (Utah 1982); 

Lewis v. General Electric Co., 37 F. Supp. 2d 55, 57 (D. Mass. 1999); B&D 

Molded Prodts. v. Vitek Research Corp., No. 970060362S, 1998 Conn. Super. 

LEXIS 2363, at *1 (Conn. Super, August, 17 1998); New Jersey Dep’t of 

Envtl. Protection and Energy v. Gloucester Envtl. Mgmt. Servs., 821 F. Supp. 

999, 1012-13 (D.N.J. 1993); North Carolina ex rel. Howes v. W.R. Peele, 876 

F. Supp. 733, 737 (E.D.N.C. 1995). 

48. Payne & Butler v. Providence Gas. Co., 77 A. 145, 170 (R.I. 1910). 

49. Id. See also Friends of the Sakonnet, 738 F. Supp. at 633-34 (finding 

defendants who contaminated the waters of Rhode Island liable under public 

nuisance despite the fact that the defendants exercised no control over the 

polluted waters); Pine v. Shell Oil Co., 1993 U.S. Dist. LEXIS 21043, at *14- 

15 (finding Shell Oil created a nuisance by releasing hydrocarbons into the 

ground despite the fact that Shell Oil did not control the land it had polluted); 

Wood v. Picillo, 443 A.2d 1244, 1248 (R.I. 1982) (holding defendants created a 

public nuisance by allowing chemical wastes to contaminate surrounding 

property despite the fact that defendants did not control the property that 

had become contaminated). 

50. According to 58 Am. Jur. 2d Nuisances § 116 (1999) (emphasis 

added): 

[a]s a general rule, one who creates a nuisance is liable for the 

resulting damages, and ordinarily his liability continues as long as 

the nuisance continues. Furthermore, liability for nuisance may be 

imposed upon one who sets in motion the forces which eventually

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Second, public nuisance law simply does not grant blanket 

immunity to product manufacturers. Rather, under Rhode Island 

law, a public nuisance includes “behavior that unreasonably 

interferes with the health, safety, peace, comfort or convenience of 

the general community.” 51 Further, public nuisance “[l]iability is 

imposed . . . in those cases in which the harm or risk to one is 

greater than he ought to be required to bear under the 

circumstances.” 52 No mention is made anywhere in Rhode Island 

law that product manufacturers are immune from public nuisance 

liability. 53 As such, Defendants’ arguments for immunity do not 

cause the tortious act, and all who participate in the creation or 

maintenance of a nuisance are liable for injuries suffered by others 

as a result of such nuisance. 

See, e.g., Bubalo v. Navegar, Inc., No. 96 C 3664, 1997 U.S. Dist. LEXIS 8551, 

at *13 (N.D. Ill. June 13, 1997) (“under Illinois law, liability [for a public 

nuisance] may be established by demonstrating that the defendant was the 

creator of the nuisance”); North Carolina ex rel. Howes v. W.R. Peele, Sr. 

Trust, 876 F. Supp. 733, 741 (E.D.N.C. 1995) (“The person who creates the 

nuisance is liable and that liability continues as long as the nuisance 

exists.”); New Jersey Dep’t of Envtl. Protection & Energy v. Gloucester Envtl. 

Mgmt. Servs., 821 F. Supp. 999, 1012-13 (D.N.J. 1993) (“It is enough for a 

nuisance claim to stand that the [defendants] allegedly contributed to the 

creation of a situation which, it is alleged, unreasonably interfered with a 

right common to the general public.”); New York v. Fermenta ACS Corp., 608 

N.Y.S.2d 980, 985 (N.Y. Sup. Ct. 1994) (“While generally nuisance actions are 

brought against landowners, ‘everyone who creates a nuisance or participates 

in the creation or maintenance of a nuisance are liable . . . for the wrong and 

injury done thereby.’”(internal citations omitted)); Selma Pressure Treating 

Co. v. Osmose Wood Preserving, Inc., 221 Cal. App. 3d 1601, 1619-20 (Cal. Ct. 

App. 1990) (quoting Hardin v. Sin Claire, 115 Cal. 460, 463 (1896) (“any 

person creating or assisting to create and maintain the nuisance was liable to 

be sued for its abatement and for damages”); Philadelphia Elec. Co. v. 

Hercules, Inc., 587 F. Supp. 144, 147-48 (E.D. Pa. 1984), rev’d on other 

grounds, 762 F.2d 303 (3d Cir. 1985); Duncan v. Flagler, 132 P.2d 939, 940 

(Okla. 1942) (“the general rule is stated that all those who participate in the 

creation . . . of a nuisance are liable to third persons for injuries suffered 

therefrom”); Shurpin v. Elmhurst, 148 Cal. App. 3d 94, 101 Cal. Ct. App. 

1983) (“the party or parties who create or assist in [the creation of a 

nuisance] . . . [are] responsible for the ensuing damages”); Armory Park 

Neighborhood Ass’n v. Episcopal Cmty. Servs., 712 P.2d 914, 920 (Ariz. 1985). 

51. Citizens for the Pres. of Waterman Lake, 420 A.2d at 59 (emphasis 

added). 

52.Id. (emphasis added). 

53. Case law from around the country reveals numerous instances in 

which courts have found that manufacturers of hazardous products are liable 

under nuisance law for injury caused by their products when the 

manufacturers’ conduct created that public nuisance. See Chase Manhattan

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apply in the public nuisance realm. 

Finally, the Defendants’ attempts to have the public nuisance 

count dismissed by claiming the State is seeking damages for 

interference with private rights, as opposed to public rights, are 

vanquished by prior precedent from Rhode Island courts. That 

prior precedent established that the presence of Lead paint in 

homes in the State interferes with public rights and, therefore, is 

actionable as a public nuisance. In Pine v. Kalian, 54 both the trial 

Bank, N.A. v. T&N PLC, 905 F. Supp. 107, 126 (S.D.N.Y. 1995) (finding that 

the plaintiff could maintain an action for public nuisance against the 

manufacturer of an asbestos fire-proofing spray); Page County Appliance 

Center, Inc. v. Honeywell, Inc., 347 N.W.2d 171, 177 (Iowa 1984) (finding the 

manufacturer of a computer system that emitted radiation materially 

participated in the creation of the nuisance and could be held liable); New 

York v. Fermenta ASC Corp., 616 N.Y.S.2d 701 (Sup. Ct. 1994) (finding the 

manufacturer of a pesticide could be liable under public nuisance for 

contamination of groundwater caused by the product) See Alaska v. Philip 

Morris, Case No. 1JU-97-915CI, Transcript of Oral Argument at 5 (1st Jud. 

Dist. Juneau Apr. 29, 1998) ( Oct. 9, 1998) (the court deciding the State of 

Alaska had stated a claim for public nuisance by alleging “defendants 

targeted and addicted minors, denied that nicotine is addictive while 

manipulating nicotine levels to promote addiction, and lied about the illeffects 

of tobacco while suppressing safer products.”); Wisconsin v. Philip 

Morris, Case No. 97-CV-328, Decision & Order at 22 (Branch 11 March 17, 

1998) (finding the tobacco defendants “interfered with the public’s right to be 

free of unwarranted injury and illness, and have directly caused the State to 

incur substantial costs in order to lessen the negative effects of tobaccorelated 

health problems. . . . Accordingly, this [public nuisance] claim is 

necessary . . . to provide compensation for economic injuries.”); Oklahoma v. 

R.J. Reynolds, No. CJ-96-1499, Transcript at 171 (Cleveland Co. July 7, 1998) 

(“to the extent that the jury finds wrongful acts such as targeting and 

addicting minors, denying that nicotine is addictive, secretly manipulating 

nicotine levels to promote addiction, misdirecting public opinion, misdirecting 

advertising, lying about ill effects of tobacco, and suppressing the promotion 

of safer products, to the extent the state can establish that and a jury finds 

that those wrongful acts did occur, that can rise to the level of public 

nuisance in Oklahoma.”); Montana ex rel. Mazurek v. Philip Morris, Inc., No. 

CDV97-306, Memorandum & Order (1st Jud. Dist. Ct. Sept. 22, 1998); Iowa 

v. Philip Morris, Inc., Co. CL 71048, Ruling (Dist. Ct. Aug 26, 1997); Puerto 

Rico ex rel. Rossello v. Brown & Williamson, No. 97-1910JAF, Opinion and 

Order (D.P.R. June 3, 1998); Oregon v. Philip Morris, No. 9706 04457, 

Amended Order (Cir. Ct. July 6, 1998); Massachusetts v. Philip Morris, No. 

96-148, Transcript (Super. Ct. Oct 22, 1997); New Mexico v. The American 

Tobacco Co., No. SF 97-1235 (C), Decision (1st Jud. Cir. Ct. Feb. 3, 1998); 

Mississippi ex rel. Moore v. American Tobacco Co., No. 94-1429, Judgment 

(Ch. Ct. Feb. 21, 1995). 

54. In Pine v. Kalian, the Attorney General filed a complaint sounding in 

public nuisance against a landlord seeking the abatement of lead-based paint

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court and the Rhode Island Supreme Court found that the 

presence of lead paint in a rental property was a public nuisance 

“constitut[ing] a continuing, persistent hazard of lead poisoning to 

members of the public who occupy such premises, especially to 

children of tender years.” 55 Implicit in this decision is the 

determination that lead poisoning and its hazards are issues of 

concern to the public health, safety and welfare, and therefore, 

actionable under a public nuisance claim. 56 

2. The State’s Lead Pigment Suit and the Rhode Island Lead 

Poisoning Prevention Act 

The Rhode Island General Assembly enacted the Lead 

from his rental property. The trial court in that case found that “serious 

health risks to young children from exposure to lead have been clearly 

established by the record in [that] case” and that the home in question 

“contain[s] enough lead so as to constitute a continuing, persistent hazard of 

lead poisoning to members of the public who occupy such premises, especially 

to children of tender years.” No. 96-2673, 1998 WL 34090599, at *1 (R.I. 

Super. Feb 2, 1998). Accordingly, the court concluded that “[t]he premises are 

a public nuisance. This Court has general equitable power, as well as 

statutory jurisdiction pursuant to G.L. 1956 (1997) § 10-1-1 et seq., to abate a 

public nuisance upon the application of the Attorney General.” Id. at *2 

(emphasis added). In affirming the trial court’s issuance of a preliminary 

injunction, the Rhode Island Supreme Court concluded that “the persistence 

of the continuing hazard of lead paint presents immediate and irreparable 

harm to the public so long as that hazard remains unabated.” Pine v. Kalian, 

723 A.2d 804, 805 (R.I. 1998). This conclusion is consistent with almost a 

century of Rhode Island precedent concerning the definition and scope of 

public nuisance law and is dispositive of the public nuisance count in this 

action. 

55. Kalian, 723 A.2d at 805. (strike out – text has been relegated to a 

footnote). 

56. In addition, courts from around the country have determined that a 

nuisance can be both private and public, and when the aggregate of private 

injuries becomes so large, the issue becomes one of public concern actionable 

under public nuisance. See Armory Park Neighborhood Ass’n v. Episcopal 

Community Servs., 712 P.2d 914, 917 (Ariz. 1985) (“a nuisance may be 

simultaneously public and private when a considerable number of people 

suffer an interference with their use and enjoyment of land. The torts are not 

mutually exclusive.” (citation omitted)); Cline v. Franklin Pork, Inc., 361 

N.W.2d 566 (Neb. 1985); New York v. Waterloo Stock Car Raceway, Inc., 409 

N.Y.S.2d 40, 43 (Sup. Ct. 1978) (“Public also is the nuisance committed in 

such a place and in such manner that the aggregation of private injuries 

become so great and extensive as to constitute a public annoyance and 

inconvenience, and a wrong against the community, which may be properly 

the subject of a public prosecution.”); City of Virginia Beach v. Murphy, 389 

S.E.2d 462, 463 (Va. 1990).

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Poisoning Prevention Act (hereinafter LPPA) in 1991 in response 

to the staggering rates of childhood lead poisoning in our state. 

The Legislature found that: 

(1) Environmental exposures to even low levels of lead 

increase a child’s risks of developing permanent learning 

disabilities, reduced concentration and attentiveness and 

behavior problems, problems which may persist and 

adversely affect the child’s chances for success in school 

and life. 

(2) Childhood lead poisoning is caused by environmental 

exposure to lead. The most significant sources of 

environmental lead are lead based paint in older housing 

and house dust and soil contaminated by this paint. 

(3) Childhood lead poisoning is completely preventable. 

(4) Rhode Island does not currently have a comprehensive 

strategy in place for preventing childhood lead poisoning. 

As a result, tens of thousands of Rhode Island’s children 

are poisoned by lead at levels believed to be harmful with 

most of these poisoned children going undiagnosed and 

untreated. 

(5) Childhood lead poisoning is dangerous to the public 

health, safety, and general welfare of the people and 

necessitates excessive and disproportionate expenditure 

of public funds for health care and special education, 

causing a drain upon public revenue. 

(6) The enactment and enforcement of this chapter is 

essential to the public interest. It is intended that the 

provisions of this chapter be liberally construed to 

effectuate its purposes. 

(7) The magnitude of the childhood lead poisoning in 

Rhode Island’s older homes and urban areas is a result of 

approved use of lead based materials over an extended 

period in public buildings and systems and private 

housing that a comprehensive approach is necessary to 

alleviate the cause, identify and treat the children,

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rehabilitate the affected housing where young children 

reside, and dispose of the hazardous material. Rhode 

Island presently does not have the public or the private 

resources to handle the total problem, requiring 

prioritizing on a need basis. 57 

Furthermore, “the express purpose of the LPPA is ‘to protect 

the public health and the public interest by establishing a 

comprehensive program to reduce exposure to environmental lead 

and thereby prevent childhood lead poisoning, the most severe 

environmental health problem in Rhode Island.’” 58 Finally, the 

LPPA provides that “[t]he provisions of this chapter shall be 

liberally construed and shall be held to be in addition to, and not 

in substitution for or a limitation of, the provisions of any other 

law.” 59 

In another effort to shield themselves from liability for the 

public nuisance, the Defendants argued at numerous times during 

the litigation that the existence of the LPPA and its governance of 

lead poisoning prevention and abatement interferes with or 

supersedes the Attorney General’s common law public nuisance 

claim. The trial court rejected this argument for several reasons. 60 

Specifically, the trial court found: 

[L]anguage [of the LPPA] mandated the law be liberally 

interpreted so as to permit the LPPA to co-exist 

(consistent with its terms) with common law equity power 

as to public nuisances vested in the Attorney General 

even prior to the adoption of our State Constitution. The 

Court further notes that the provisions of LPPA clearly in 

the first instance were intended by the General Assembly 

to protect the health of children and that its provisions 

almost exclusively deal with owners of dwellings, 

dwelling units or premises and not in any way with 

manufacturers of lead pigment used in paint and coatings 

or, indeed, with manufacturers or vendors of paint or 

57. R.I. GEN. LAWS § 23-24.6-2 (1986). 

58. State of Rhode Island v. Lead Indus. Ass’n, Inc., No. 99-5226, 2001 

WL 345830, at * 5 (RI. Super. April 2, 2001) (quoting R.I.G.L. § 23-24.6-3). 

59. R.I. GEN. LAWS § 23-24.6-25 (1986). 

60. State of Rhode Island v. Lead Indus. Ass’n, Inc., No. 99-5226, 2003 

WL 1880120, at * 2 (RI. Super. Mar. 20, 2003).

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paint products. It, of course, is the alleged manufacturers 

of such pigment who, here, are the Defendants. 61 

This holding is in concert with the great weight of authority 

in Rhode Island, where courts have frequently determined that a 

condition can be regulated by statute and also declared to be a 

common law public nuisance. 62 

3. Product Identification Is Not Required to Bring a Public 

Nuisance Claim 

Defendants also sought to have the public nuisance claim 

dismissed wholesale arguing that the public nuisance law requires 

that, as a matter of law, the State prove the existence of each 

defendants’ lead pigment in particular homes and buildings 

throughout the State of Rhode Island. Stated differently, the 

question was whether the conduct of these defendants in 

manufacturing, marketing and promoting Lead, both individually 

and collectively, was sufficient to establish liability for creating a 

public nuisance in the State of Rhode Island or whether lack of 

product identification was fatal to the case. 

Defendants urged the trial court to incorporate the 

requirements and holding of Gorman v. Abbott Laboratories. 63 In 

that case, the Supreme Court considered personal injury cases 

against multiple drug manufacturers. 64 The plaintiff was unable 

to identify the manufacturer of the particular drug she ingested, 

and therefore relied on the market-share theory of liability to 

61. Id. at *3. See also Lead Indus. Ass’n, 2001 WL 345830, at *5 (“the 

express purpose of the LPPA is ‘to protect the public health and the public 

interest by establishing a comprehensive program to reduce exposure to 

environmental lead and thereby prevent childhood lead poisoning, the most 

severe environmental health problem in Rhode Island.’ G.L.1956 § 23-24.6.3. 

Accordingly, the absence of express authorization in the statute does not 

constitute a separation of powers bar which absolutely precludes the 

Attorney General from bringing this type of action.”). 

62. See State v. Carpionato, 605 A.2d 498, 498 (R.I. 1992) (sign 

maintenance statute); Bierman v. Shookster, 590 A.2d 402, 403 (R.I. 1991) 

(traffic control signal maintenance statute); Citizens for Preservation of 

Waterman Lake v. Davis, 420 A.2d 53, 56 (R.I. 1980) (Fresh Water Wetlands 

Act); Berberian v. Avery, 99 RI. 77, 205 A.2d 579 (R.I. 1964) (Mosquito 

Abatement Act); Pine v. Kalian, No. 96-2673, 1998 WL 34090599, at *3 (Sup. 

Ct. Feb. Feb. 2, 1998), affd, 723 A.2d 804 (R.I. 1998). 

63. 599 A.2d 1364 (R.I. 1991). 

64. Id.

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escape traditional product identification requirements in product 

liability suits. 65 The Gorman court rejected the market-share 

doctrine 66 and instead required the identification of a specific 

defendant in order to establish liability. 67 The lead manufacturers 

argued that the Gorman court’s product manufacturer 

identification requirement should be applied to Rhode Island’s 

public nuisance claim, requiring the State to identify with 

particularity the manufacturer of the lead pigment in each house 

in Rhode Island. 68 

The trial court ultimately rejected the Defendants’ argument, 

focusing its analysis on the distinctions between products liability 

law and public nuisance law. First, the court had long recognized 

that the condition alleged to be a public nuisance is the collective 

presence of lead pigment in paints throughout Rhode Island. As 

the court stated: 

[t]he issue. . . was not as to if such pigment in any 

65. Id. 

66. Id. The market share doctrine was recognized by California in Sindell 

v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980) in response to the causation 

problems that women injured by their mothers’ ingestion of the drug DES 

during pregnancy were having in seeking a remedy against the 

manufacturers of that drug. These women could not identify the specific 

manufacturer of the DES that their mothers had taken because the DES pills 

from one manufacturer were identical to those of another manufacturer. Id. 

at 936. Through market share, the California court relaxed the requirement 

that an injured party must prove which manufacturer produced the actual 

DES pill their mother took by allowing her to bring into the litigation the 

manufacturers who represented the market for DES at the time her mother 

may have ingested DES. Id. at 937. Once those manufacturers were in suit, 

the burden shifted to them to prove that they did not manufacture the 

product that caused the harm. Id. If liability were found, then damages 

against that manufacturer would be apportioned in accordance with its share 

of the market. Id. 

67. Gorman, 599 A.2d at 1364. 

68. The market-share defense has been effective in personal injury suits 

against the lead industry. Because it is impossible for a lead poisoned child 

to identify the particular manufacturer of the lead pigment he or she 

ingested, numerous courts have rejected their personal injury claims and left 

lead poisoned children with no redress against the lead manufacturers. See 

supra, note ___. However, in July 2005, the Wisconsin Supreme Court 

reversed the tide of dismissals, adopted a modified market-share theory of 

liability called risk-contribution, which allows individual lead poisoned 

children to sue the Lead defendants absent proof of the particular 

manufacturer of lead pigment that he ingested. See Thomas ex. rel. 

Gramling v. Mallett, 701 N.W.2d 523 (2005).

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particular building or group of buildings (however 

numerous) constituted a public nuisance, but rather 

whether the cumulative effect of all such pigment in such 

properties constitutes a single public nuisance. 69 

Indeed, it ruled that “property specific evidence is irrelevant 

in connection with the issues of whether the cumulative effect of 

such pigment in all such buildings, (that is to say buildings 

containing lead pigment in paint or coating), was a public 

nuisance, . . .” 70 

Relying on two of its previous decisions in this litigation, 71 the 

trial court then concluded that the product identification 

requirements enunciated in Gorman were inapplicable to the 

State’s public nuisance claim. As the court stated, “[f]irst, and of 

some significance the present case is not a products liability 

case . . .” 72 It then explained: 

During the course of argument, defendants seemed to 

read into Gorman and the other cases they cited, a 

requirement for product identification in this public 

nuisance case, a requirement that this Court does not 

find. This is not a case where it is alleged that one 

defendant out of a number of defendants (but plaintiff 

cannot tell which) made a product causing injury to a 

single individual but rather it is a case where it is 

claimed that each of the defendants through their own 

separate actions or conduct was a substantial cause of the 

massive public nuisance and harms and/or injuries 

resulting therefrom. What the Court does find is that if 

what plaintiff contends for, that is to say that each 

defendant’s conduct or activities were a proximate cause 

of the public nuisance alleged, the cumulative effect of 

lead pigment in buildings throughout the state 

(sometimes stated as the collective presence of lead 

69. State of Rhode Island v. Lead Industries Ass’n, No. 99-5226, 2004 WL 

2813747, at *1 (RI. Super. Nov. 9, 2004). 

70. Id. at *2. 

71. See State of Rhode Island v. Lead Industries Association, No. 99-5226, 

2001 WL 345830, at *7 (R.I. Super. April 2, 2001); Lead Industries Association, 

2004 WL 2813747, at *1. 

72. State of Rhode Island v. Lead Indus. Ass’n., 2005 WL 1331196 at *2.

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pigment in buildings throughout the state of Rhode 

Island), and of injury resulting therefrom then indeed 

liability of the defendants may be found. In order to prove 

that causation, defendants must establish that each 

defendant’s conduct was a substantial cause of the public 

nuisance and that the public nuisance was a substantial 

factor in causing injury to the public which injury is 

subject of this action. 73 

Having rejected Defendants’ arguments, the court recognized 

the clear distinction between products liability law and public 

nuisance law. It is noteworthy that concepts from each are not 

easily interchangeable, and that strict adherence to the law of 

public nuisance requires an analysis distinct from product liability 

concepts. 74 

4. Legality of Product and Actions of Others 

In addition, the defendants urged both the trial court and the 

jury to reject the public nuisance claim for two reasons: (1) Lead 

pigment was a legal product at the time it was applied to the walls 

of Rhode Island homes and buildings; and (2) the subsequent 

actions of homeowners and landlords served to immunize the 

Defendants from public nuisance liability. 75 These arguments 

failed at the motion to dismiss stage, summary judgment stage 

and failed to convince the jury at trial. 

First, established law holds that it is irrelevant to a nuisance 

cause of action that the conduct complained of may be legal or 

even appropriate and necessary in a certain circumstance. In the 

words of the United States Supreme Court, “[n]uisance may be 

merely a right thing in a wrong place,—like a pig in the parlor 

instead of the barnyard.” 76 Other courts have subsequently 

agreed, holding that the fact that a defendant’s conduct is 

otherwise lawful does not preclude liability for public nuisance. 77 

73. Id. 

74. State of Rhode Island v. Lead Indus. Ass’n, Oct. 5, 2005 Hearing Tr. 

at 23 (granting plaintiff’s motion to strike Defendants’ product liability 

affirmative defenses to the State’s complaint) 

75. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226. 

76. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926). 

77. See City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256 

(E.D.N.Y. 2004); N.A.A.C.P. v. AcuSport, Inc., 271 F. Supp. 2d 435 (E.D.N.Y.

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Similarly, the subsequent actions of anyone – even 

homeowners and landlords – do not immunize Lead 

manufacturers from liability. Instead, a jury must consider 

whether those actions are superseding, intervening causes of the 

harm caused by the presence of Lead. Legally, 

superseding/intervening cause is often utilized by negligent 

parties to insulate them from liability for those negligent acts. 

The burden of proving the defense is on the defendant, who must 

demonstrate that the “intervening” actor: (1) was negligent, (2) his 

negligence was the proximate cause of the plaintiff’s harm and (3) 

his negligence was not a reasonably foreseeable consequence of 

defendant’s original negligence. 78 

The third element of foreseeability is the lynchpin of the 

superseding/intervening cause defense. Where, as here, a party 

seeks to sever the proximate cause chain between its conduct and 

the resulting injury, that party must demonstrate that the 

intervening act was not foreseeable and has rendered its original 

acts totally inoperable: 

[A]n intervening act will not insulate a defendant from 

liability if his negligence was a concurring proximate 

cause which had not been rendered remote by reason of 

the secondary cause which intervened. The test for 

remoteness is whether the intervening act could 

reasonably have been foreseen as a natural and probable 

result of the original act of negligence of the defendant. If 

it could have been so foreseen, the intervening negligence 

is not so remote as to prevent the original act from being 

considered at law as merely a concurring cause of the 

injury. 79 

2003); United States v. Reserve Mining Co., 394 F. Supp. 233 (D. Minn. 1974); 

City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004); City of 

Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003); 

County of Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313 (Cal. Dist. 

Ct. App. 2006). 

78. See Pantalone v. Advanced Energy Delivery Sys., Inc., 694 A.2d 1213, 

1215 (R.I. 1997). 

79. Roberts v. Kettelle, 356 A.2d 207, 215 (R.I. 1976). See also Aldcroft v. 

Fidelity & Casualty Co., 259 A.2d 408 (1969); Almeida v. Town of North 

Providence, 468 A.2d 915, 917 (R.I. 1983) (stating that if the intervening 

cause was foreseeable to the original wrongdoer, then the “causal connection 

remains unbroken” and liability remains with the original wrongdoer.);

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Furthermore, “[i]t is well settled that for an independent 

intervening cause to replace a defendant’s original negligence as 

the proximate cause of an accident, the original negligent conduct 

must have become totally inoperative as a cause of the injury.” 80 On 

the other hand, an unforeseeable intervening cause will break the 

causal chain and allows the original wrongdoer to escape liability. 

In such cases, “the intervening. . .act becomes the sole proximate 

cause of the plaintiff’s injuries.” 81 

Courts considering the affirmative defense of 

superseding/intervening cause in the context of a public nuisance 

claim have concluded: 

Intervening actions between a defendant and the harm 

suffered by the public, even multiple or criminal actions 

taken by third parties or occurring naturally, do not 

break the chain of causation if a defendant could have 

expected their nature and effect. . . .[T]he causal chain is 

not broken even where it is the third party that is the 

most immediate causal event of the injury to the 

public.” 82 

Instead, liability for nuisance will lie when the acts or 

omissions of the Defendants “remain[] the dominant and relevant 

fact[s] without which the public nuisance would not have resulted 

where and under the circumstances it did,” irrespective of 

intervening actions by third parties. 83 

Mahogany v. Ward, 17 A. 860, 861 (R.I. 1889) (“[I]f the intervening act is such 

as might reasonably have been anticipated as the natural or probable result 

of the original negligence, the original negligence will, notwithstanding such 

intervening act, be regarded as the proximate cause of the injury, and will 

render the person guilty of it chargeable.”); Walsh v. Israel Couture Post, No. 

2274 V.F.W. of the U.S., 542 A.2d 1094, 1097 (R.I. 1988) (“[A]n intervening 

act. . .will not insulate an original tortfeasor if it appears that such 

intervening act is a natural and probable consequence of the initial 

tortfeasor’s act.”). 

80. Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827, 830 (R.I. 

1986) (citing Roberts, 356 A.2d 207) (emphasis added). 

81. Almeida, 468 A.2d at 917. 

82. N.A.A.C.P., 271 F. Supp. 2d at 494. 

83. Commonwealth v. Barnes & Tucker, 353 A.2d 471, 479 (Pa. Commw. 

Ct. 1976), aff’d 371 A.2d 461 (Pa. 1977). See also United States v. Hooker 

Chems. and Plastics Corp., 722 F. Supp. 960, 968 (W.D.N.Y. 1989) (rejected 

argument that causal connection between defendant’s conduct and the nuisance 

“was broken by independent acts of other parties which constituted superseding

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In conformity with this law, the trial court instructed the 

jury: 

[i]n determining whether the acts of others constitute an 

intervening superseding cause, you must consider 

whether the conduct of the defendants, or any of them, 

created or increased a foreseeable risk of harm through 

the intervention of such others’ acts. If defendants’ 

conduct created or increased the foreseeable harm, risk of 

harm, through the intervention of the subsequent actor, 

then the intervening acts cannot be said to be an 

intervening superseding cause and defendants will not 

have proved their assertion. 84 

The court further instructed the jury: 

[t]he act or failure to act by a defendant need not be 

intentional or negligent to impose liability for creating a 

public nuisance. Rather, the fact that the conduct which 

caused the public nuisance otherwise is lawful or has not 

been made unlawful does not preclude liability where 

that conduct nevertheless results in the public 

nuisance.” 85 

Jurors reported that these two issues – legality of the product 

and the conduct of others – were factors in their decision. In fact, 

for some, Defendants’ arguments that the product was legal and 

that the faults lie with landlords and homeowners had social and 

philosophical appeal. 86 But the justice system prevailed, and 

jurors reported that they were able to put aside their philosophical 

or political biases and apply the law to the facts. 87 When applying 

causes” when defendant’s conduct “‘remains the dominant and relevant fact 

without which the public nuisance would not have resulted where and under the 

circumstances it did.’”). 

84. State of Rhode Island v. Atlantic Richfield Co. et al., C.A.No. 99-5226, 

Jury Instructions. 

85. Id. 

86. See Krouse, supra note 16, at A1 (noting that one of the jurors 

originally “wanted to let the paint-company defendants off the hook. He 

wanted to blame slumlords for the dangers of lead paint in Rhode Island 

homes, not the firms that prosecutors claim made the pigment decades ago.”); 

Lord, supra note 2, at B1 (reporting that one juror said that “‘[s]ome of us 

thought a big part of the problem was poor maintenance’” and another said 

that “‘[m]ost of use wanted to blame the landlords.’”). 

87. One law professor who commented on the trial to the Cleveland

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the law regarding superseding/intervening cause, the jurors 

ultimately “agreed that regardless of what the landlords did, the 

harm began with the companies distributing toxic paints.” 88 On 

the issue of the legality of the product, jurors also reported that 

they strictly adhered to the law as enunciated by the trial court. 

One juror who was affected by the argument reported: 

after rereading the judge’s instructions, it became clear to 

him that the paint – even if applied decades ago – had 

caused harm and that it had interfered with the rights of 

children to be safe in their own homes. The fact that the 

pigment makers had not broken any laws did not 

preclude a finding of liability, according to the judge, nor 

did the contributions of lousy landlords to the problem. 89 

Despite all of these challenges to the modern application of 

public nuisance law to the situation created and maintained by 

the Defendants in Rhode Island because of their manufacture, 

sale, promotion and marketing of lead, the State successfully 

presented its case to the jury. 

II. THE SIGNIFICANCE OF THE JURY’S VERDICT FOR THE STATE’S CLAIM 

AGAINST THE LEAD PAINT MANUFACTURERS 

Armed with this public nuisance law, the jury sifted through 

the testimony of twelve witnesses and numerous documents 

admitted into evidence over eight days. Included in the witnesses 

were four medical/scientific experts, 90 three State public health 

Plain-Dealer questioned “how lead paint can be ruled a public nuisance 

without taking into account the lack of home maintenance that contributes to 

the problem.” Krouse, supra note 16, at A1. However, the record reveals that 

in this case, the lack of maintenance defense was presented to the jury, 

covered in the jury instructions and ultimately rejected by the jury because it 

did not satisfy the legal requirements of a superseding, intervening cause 

affirmative defense. Thus any such criticism of the verdict is without 

foundation in facts of this case and is best attributed to the spin generated by 

the defendants after the verdict. 

88. Lord, supra note 2, at B-4. 

89. Peter Krouse, Verdict Raises Risk for Paint Companies, The 

Cleveland Plain-Dealer, April 2, 2006 at A1. 

90. The four medical/scientific experts were Dr. Philip Landrigan, Ms. 

June Tourangeau, Dr. Michael Shannon, and Dr. James Girard. 

Dr. Philip Landrigan received his M.D. from Harvard University in 1967. 

Dr. Landrigan has been on the forefront of childhood lead poisoning research 

and prevention efforts for over thirty years. During this time he has worked

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experts or officials, 91 three historians, 92 and two experts in 

at or consulted with the United States Public Health Service, the Centers for 

Disease Control and the Environmental Protection Agency on issues related 

to childhood lead poisoning. Dr. Landrigan is board certified in Pediatrics, 

Preventative and Occupational & Environmental Medicine and is a member 

of the American Academy of Pediatrics, the American Medical Association 

and the American Public Health Association. Dr. Landrigan has conducted 

extensive research and written numerous peer reviewed articles on the 

subject of childhood lead poisoning. 

Ms. June Tourangeau is a Licensed Practical Nurse who has served lead 

poisoned children in Rhode Island since 1978. Ms. Tourangeau is also a 

Licensed Lead Inspector and Certified Lead Technician. Ms. Tourangeau 

developed the model childhood lead poisoning case management system for 

the State of Rhode Island and has investigated hundreds of homes and 

hundreds of lead poisoning cases over the past decade. 

Dr. Michael Shannon holds an M.D. from Duke University, an M.P.H. 

from the University of North Carolina and is board certified in pediatrics, 

emergency medicine, and medical toxicology. Dr. Shannon currently serves 

as Chief of Emergency Medicine at Boston Children’s Hospital and as Chair 

of the American Academy of Pediatrics Committee on Environmental Health. 

During his illustrious career, Dr. Shannon has conducted extensive research 

and authored many articles on childhood lead poisoning, and has personally 

treated over 5,500 lead poisoned children. 

Dr. James Girard received his Ph.D. in Chemistry from Penn State 

University in 1971. Dr. Girard is a Professor of Chemistry and the Chairman 

of the Chemistry Department at American University in Washington, D.C., 

where he instructs students on government approved methods for analyzing 

materials in the environment including lead in paint. 

91. The three public health officials were Dr. Patricia Nolan, Mr. Dean 

Albro, and the Honorable David Cicilline. 

Dr. Patricia Nolan holds an M.S. in Public Health, an M.D. from Magill 

University and is board certified in Public Health. A public health servant 

for over 30 years, Dr. Nolan served as the Director of the Department of 

Health for the State of Rhode Island from 1995-2005. During her time as 

Director, the Department of Health spearheaded a statewide cooperative 

effort that resulted in a significant reduction in both the incidence and 

prevalence of childhood lead poisoning in Rhode Island. 

Mr. Dean Albro received a B.S. in Resource Development from the 

University of Rhode Island in 1977. Since 1996, Mr. Albro has served as 

Chief of the Office of Compliance and Inspection for the Rhode Island 

Department of Environmental Management where among his primary 

responsibilities, Mr. Albro is responsible for enforcing DEM Air Regulation 

24, the rules and regulations related to exterior lead-based paint removal in 

Rhode Island. 

Mayor David Cicilline holds a B.S. in Political Science and a J.D. from 

Georgetown University Law Center. Since 2002, Mayor Cicilline has served 

as Mayor of the City of Providence and has made lead poisoning prevention a 

priority of his administration. In so doing, Mayor Cicilline directed the 

preparation of the Consolidated Plan for the City of Providence 2005-2010 

which addresses elimination of childhood lead poisoning within the City of

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identifying and remediating lead paint and lead paint hazards. 93 

Providence. 

92. The three historians were Dr. Gerald Markowitz, Dr. David Rosner, 

and Dr. Michael Kosnett. 

Dr. Gerald Markowitz received his Doctorate in History from the 

University of Wisconsin in 1971. He currently serves as an Adjunct Professor 

of Sociomedical Sciences at Columbia University and as a Distinguished 

Professor of History at John Jay College of Criminal Justice. Dr. Markowitz, 

in conjunction with Dr. David Rosner, has dedicated himself to the study of 

the history of the conduct of the members of the lead pigment industry, 

involving the systematic review of hundreds of thousands of pages of 

historical, scientific and corporate documents from numerous sources. As a 

result, Dr. Markowitz has published numerous articles and books on lead 

poisoning, including the award winning book “Deceit & Denial - The Deadly 

Politics of Industrial Pollution.” Dr. Markowitz has given numerous 

presentations on the conduct of the members of the lead pigment industry 

before such esteemed organizations as the American Public Health 

Association and the Wisconsin State Department of Health. 

Dr. David Rosner holds a Ph.D. in the History of Science from Harvard 

University and an M.S. in Public Health from the University of 

Massachusetts. Dr. Rosner currently serves as a Professor of History and 

Public Health of Sociomedical Sciences at Columbia University, and as an 

Adjunct Professor of Community Medicine and the Director for the Center for 

the History of Ethics in Public Health at Mt. Sinai School of Medicine. 

Together with Dr. Gerald Markowitz, Dr. Rosner has dedicated himself to the 

study of the conduct of the members of the lead pigment industry, the results 

of which he has presented before numerous organizations including Yale 

University, Columbia University, NYU, Johns Hopkins, Centers for Disease 

Control and the National Institute of Public Health. Dr. Rosner has authored 

dozens of articles and books, including his work as co-author of the award 

winning book “Deceit & Denial - The Deadly Politics of Industrial Pollution.” 

Dr. Michael Kosnett holds an M.D. from the University of California, San 

Francisco, an M.S. in Public Health and Toxicology from Berkeley and a B.S. 

from Yale University. Dr. Kosnett is board certified in Medical Toxicology, 

Preventative and Occupational & Environmental Medicine and is a Professor 

at the University of Colorado, School of Medicine. Dr. Kosnett has over 20 

years experience treating hundreds of lead poisoned children. 

93. The two lead paint experts were Mr. Frank King and Ms. Bonnie 

Cassani. 

Frank King has been a Registered Rhode Island General Contractor 

specializing in lead hazard abatement for over 20 years. In 1993, Mr. King 

was among the first contractors in the State of Rhode Island to become a 

Licensed Lead Hazard Reduction Contractor. Since 1993, as President and 

Owner of KRA, Inc., Mr. King has performed lead hazard reduction services 

on over 1,500 properties within the State of Rhode Island. 

Ms. Cassani is the sole proprietor of Northeast Lead Management, a 

company organized to conduct lead-based paint inspections and based in 

Rhode Island. In 1993, Ms. Cassani became the first Master Environmental 

Lead Inspector in Rhode Island, and today, is one of only two Master 

Environmental Lead Inspectors in Rhode Island. During her career, Ms.

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Each of these witnesses was called by the State because the 

defendants surprisingly called not a single witness to counter the 

testimony of the State’s experts. 94 These witnesses presented the 

following statistical evidence from 2004: (1) 172 children were 

significantly lead poisoned, 95 (2) 1,167 children had elevated blood 

lead levels 96 and (3) every city and town in Rhode Island, with the 

exception of Gloucester, had a lead poisoned child that year. 97 The 

witnesses pointed out that because of the larger number of older 

houses throughout the state, the risk of lead poisoning occurring 

statewide is significant. 98 

The statistics also have an economic impact, not only because 

of the numbers of kids poisoned and the irreversible damage 

suffered by those children, 99 but also because of the reduction in 

earning capacity such poisoning causes. 100 In addition, childhood 

lead poisoning causes burdens on society because taxpayer dollars 

are used to defray medical costs, relocation costs, and special 

education costs for lead poisoned children. 101 This economic 

impact is especially acute because even very low levels of lead can 

negatively influence the child’s nervous system development and 

Cassani has inspected thousands of homes, schools, daycare centers and 

other buildings in Rhode Island for lead hazards. 

94. The jurors’ response to the defendants’ decision to present no 

witnesses at trial was reported in newspapers, many of which considered the 

surprising litigation tactic to be a factor in the Lead industry’s defeat. 

According to the New York Times, one factor in the loss may have been “the 

courtroom-strategy battles among the defense lawyers, and their hubris from 

never having lost a lawsuit before.” Julie Creswell, The Nuisance That May 

Cost Billions, The New York Times Sunday Business, April 2, 2006 at Section 

3. Furthermore, “[t]here of the six jurors interviewed for this article . . . said 

they had been surprised and disappointed that the defense did not offer any 

witnesses to rebut the State’s central allegation: That simply by having been 

in the business of making lead-based paint, companies contributed to what is 

now a pervasive public nuisance. ‘They could have brought their own 

witnesses up there,’ the jury’s foreman, Gerald Lenau, said. ‘The fact is, the 

person you hear last does leave a lasting impression, but maybe they couldn’t 

dispute anything.’”). Id. 

95. Trial testimony (direct) of Dr. Patricia Nolan, Nov. 14, 2005 at 67-70. 

96. Id. 

97. Id. at 70-72. 

98. Id. at 72. 

99. Id. at 8. 

100.Id. at 20. 

101.Id. at 21-22.

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educational and intellectual outcomes. 102 

On the issue of liability, the State presented evidence to the 

jury on each defendant’s acts and omissions that substantially 

contributed to the public nuisance in Rhode Island. It was based 

on these facts that the jury applied the law on liability for a public 

nuisance, finding that defendants NL Industries, Inc., Millennium 

Holdings, LLC and The Sherwin-Williams Company were liable 

for the nuisance. 103 Key evidence and allegations against NL 

Industries, Inc. included: 

• Manufactured Lead from 1891 until 1975; 104 

• Promoted lead in paint as safe even though it knew 

that pure white lead paint in fact was not safe; 105 

• Failed to recommend that homeowners be educated 

about the toxicity of Lead in paint; 106 

• Fought regulations to include warnings or labels on its 

products that contained Lead; 107 

• Sold and promoted Lead in Rhode Island. 108 

Key evidence against The Sherwin-Williams Company was: 

• Manufactured Lead from 1904 until 1971; 109 

• Made no effort to keep Lead pigment from being used 

on buildings in Rhode Island; 110 

• Sold and promoted in Rhode Island when it had actual 

knowledge concerning childhood lead poisoning; 111 

• Continued to sell Lead for use in paint knowing it 

102.Id. at 49. 

103.The jury did not find that defendant Atlantic Richfield Company was 

liable for the nuisance because of their ten year involvement in the industry. 

See Lord, supra note 2, at B1. 

104.Trial Tr. Nov. 16, 2005 (pm) at 45 

105.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at 

29-30. 


29-30. 

107.Trial testimony (redirect) of Professor Gerald Markowitz, Dec. 15, 

2005 at 8-11. 


77. 

109.Trial Tr. Nov. 16, 2005 (pm) at 45-46. 

110.Trial testimony (redirect) of Professor David Rosner, Jan. 20, 2006 

(pm) at 65. 

111.Trial testimony (direct) of Professor David Rosner, Jan. 13, 2006 at 

77-78.

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could poison kids. 112 

Key evidence against Millennium Holdings, LLC (predecessor 

Glidden) included: 

• Manufactured Lead from 1924 to 1958; 113 

• Promoted Lead in paint as safe despite knowledge of 

the hazards; 114 

• Consistently marketed its non-Leaded paints as safe 

alternatives to Lead paints; 115 

• Used advertisements that did not contain warnings of 

Lead paint hazards; 116 

• Sold and promoted Lead products in Rhode Island.; 117 

• Had actual knowledge of childhood lead poisoning 

from Lead pigment at the time it manufactured such 

pigment. 118 

Key evidence against Atlantic Richfield (predecessor International 

Smelting and Refining Company) included: 

• Manufactured Lead from 1936 until 1946; 119 

• Never warned parents of the source of the poison for 

childhood lead poisoning in the 1920s, 30s, 40s, 50s, 

60s and beyond; 120 

• Fought regulations to include warning labels on its 

harmful products. 121 

The witnesses also provided evidence against all the 

defendants that implicated the industry as a whole for 

112.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005 

at 46. 


(pm) at 64 


31. 


(pm) at 43. 


22) 


77. 

118.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005 

at 47. 

119.Trial Tr. Nov. 16, 2005 (pm) at 43 - 44 

120.Trial testimony (redirect) of Professor Gerald Markowitz, Dec. 16, 

2005 at 60-61. 

121.Trial testimony (direct) of Professor Gerald Markowitz, Dec. 12, 2005 

at 27 – 30).

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contributing to this public nuisance. First, adequate alternatives 

to lead pigments existed as early 1922. 122 Second, each defendant 

was responsible for supplying Lead to thousands of paint 

makers. 123 Third, these Defendants’ total market share was 

significant: ranging from 50 to 75% for dry white lead and 70 to 

80% for white lead-in-oil. 124 Finally, the Defendants’ trade 

association, the Lead Industries Association (hereinafter “LIA”), 

regularly sent medical articles on childhood lead poisoning to its 

members while all defendants were members. 125 The LIA acted as 

the Defendants’ pseudo-lobbyist by monitoring legislation on 

behalf of all its members and aggressively taking steps to void any 

legislation that would restrict lead pigment use. 126 

The reasons reported in the press for the jury’s verdict were 

consistent with the law as laid out in the trial court’s jury 

instructions. First, the jury determined that the presence of Lead 

pigment in paints throughout Rhode Island was a public nuisance. 

One juror likened the effects of lead to a “‘ripple effect’ of 

harm . . .[i]t wasn’t just the poisoned children who suffered but 

also their parents and the agencies that had to spend money on 

the problem.” 127 Another reported that “it became clear to him 

that the paint – even if applied decades ago – had caused harm 

and that it had interfered with the right of children to be safe in 

their own homes.” 128 

The jury next decided that three of the four defendants named 

in the lawsuit were liable for the public nuisance. As one juror 

stated, “‘The paint on the walls in Rhode Island didn’t magically 

appear. If they didn’t do it, who did’” 129 That same juror also 

commented, “[t]he state said the companies manufactured and 

sold 80 percent of the paint sold in the country. It was up to the 

122.Trial Testimony (direct) of Professor James Girard, Nov. 7, 2005 

(am) at 28-35; Nov 8, 2005 (pm) at 57. 

123.Trial Testimony (direct) of Professor David Rosner, Jan. 12, 2006 at 

25-26. 

124.Trial Testimony (direct) of Professor David Rosner, Jan. 12, 2006 at 

24-27. 


at 35. 


at 13-17. 

127.Peter Krouse, supra note 16, at A1. 

128.Id. 

129.Creswell, supra note 17.

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paint companies to say no, but they didn’t furnish us with that. 

All they had to say was no, but they did not because I don’t think 

they could.” 130 

The final question the jury had to consider was whether the 

liable defendants were required to abate the nuisance. 131 That 

decision, reported the jury foreman, was made quickly after the 

findings of public nuisance and liability. 132 But although that 

determination was made quickly, the ramifications of the 

abatement decision are far-reaching. 

First, in order to implement the jury’s order of abatement, the 

trial judge has to determine the manner in which abatement 

should take place. Prior to the trial, the court determined that: 

the question of whether defendants or any of them shall 

be required to abate or to otherwise provide nonmonetary 

relief as prayed by plaintiff shall be determined 

by the jury. In the event that such relief is ordered by the 

jury, this Court will conduct appropriate hearings, if 

necessary, from time to time and fashion such orders as 

under the circumstances might be appropriate in order to 

implement any judgment of abatement rendered by the 

jury. 133 

130.Id. 

131.Since the outset of this case, the State has been clear that it was 

seeking as part of its remedy for the public nuisance, the equitable remedy of 

abatement. In its Complaint, the State sought relief in the form of an order 

and judgment against Defendants, jointly and severally for 

“funding of a public education campaign relating to the continuing 

dangers posed by Lead, and for funding of lead-poisoning detection and 

preventative screening programs in the State; [] [j]udgment ordering the 

Defendants to detect and abate Lead in all residences, schools, hospitals, and 

public and private buildings within the State accessible to children; [] [a]n 

order awarding the State such other extraordinary, declaratory and/or 

injunctive relief as permitted by law or equity as necessary to assure that the 

State has an effective remedy; and [] [f]or such other and further relief as the 

Court deems equitable, just, and proper.” 

Complaint, Oct. 29, 1999; Second Amended Complaint, Mar 7, 2002. 

132.Lord, supra note 2, at B4. 

133. State of Rhode Island v. Lead Indus. Ass’n, Hearing Tr. Oct. 17, 

2005 at 7-10. In reaching this decision, the trial court relied on Hudson v. 

Caryl, 44 NY 553, 555 (N.Y.Ct.App. 1871), a matter heard “in the days of 

yore,” for the principle that “‘[t]he action when brought for the double object 

of removing the nuisance and recovering the damages occasioned by it was 

always tried by jury. The ancient remedy was by a size of nuisance

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The singular question still pending before the trial court is 

the manner in which the defendants must be required to abate the 

public nuisance found by the jury. At this time, the State has 

requested that the trial court appoint a Special Master pursuant 

to Rule 53 of the Rhode Island Rules of Civil Procedure 134 who is 

charged with designing an abatement plan that is consistent with 

the evidence in this case and the public health needs. Specifically, 

the State requests that the court: 

(1) appoint a Special Master with specialized knowledge in 

the public health issues of lead abatement and lead poisoning 

prevention; 

(2) ask that the Special Master consider and answer specific 

questions that would be relevant to assist the Court in 

determining the manner in which the abatement will be carried 

out; 

(3) authorize the Special Master to solicit factual information 

and professional opinions on the manner, method, timing, cost and 

sequencing of the abatement of this nuisance; and 

(4) authorize the parties to review and comment on the 

Special Master’s answers to the questions framed by the Court. 135 

Significant legal precedent exists for the appointment of a 

special master to devise and oversee a remedial program. 136 For 

demanding the sheriff to summon a jury and view the premises. And if the 

jury found for the plaintiff, he was entitled to judgment of two things. First, 

to have the nuisance abated; and second, to recover damages.’” This Court 

further found that, “[t]he plaintiff here, in view of the Court, has pleaded a 

case, and the discovery that the Court has had an opportunity to review, 

indicates that if an alleged nuisance is found, such nuisance in fact and in 

law would be abatable.” State of Rhode Island v. Lead Indus. Ass’n, Hearing 

Tr. Oct. 17, 2005 at 7-10. 

134.Under Rule 53(a), “[t]he court may appoint a special master in any 

appropriate action which is pending therein. As used in these rules, the word 

“master” includes a referee, an auditor, an examiner and any other individual 

or entity possessing such special expertise sufficient to serve the purpose or 

purposes for which a master may be appointed under this rule.” 

135.See Plaintiff’s Position Paper Concerning Hiring of a Special Master 

To Assist in the Implementation of the Jury Verdict Ordering Abatement, 

filed March 31, 2006 at 2. 

136.See Margaret G. Farrell, Special Masters, in Reference Manual on 

Scientific Evidence, FED. JUDICIAL CTR. 590 (1994) (“Expert masters 

appointed after a finding of liability in environmental and institutional 

reform litigation often advise the court by making recommendations for 

detailed remedial orders or amendments to such orders in periodic reports 

based on their own expertise.”)

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example, special masters have been appointed in similar cases to 

supervise the affirmative abatement of a nuisance. 137 This use of 

a special master to assist in the abatement of a public nuisance is 

also in accord with well- established precedent. For example, 

special masters have been employed in school desegregation cases 

to help fashion an appropriate remedy and to oversee the 

implementation of that remedy: 

[I]t is a fact that public law litigation often places a trial 

judge in a position where his role is necessarily somewhat 

different from that performed in more traditional cases. 

This is especially true in the remedial phase of a school 

desegregation or institutional reform case. School and 

institutional financing and administration are subjects 

with which few judges have more than a passing 

familiarity. Yet, when litigation exposes constitutional 

violations in public institutions a court of equity must 

take steps to eliminate them. In accomplishing this 

result trial courts frequently issue orders which require 

fundamental changes in the administrative and financial 

structures of the institutions involved. In order to 

accomplish these ends with fairness to all concerned a 

137.See State v. Patrick, 1990 WL 83402, *4 (Tenn. Crim. App., June 20, 

1990) (recognizing the power of a court sitting in equity to “be creative in 

solving this problem [of abatement]” and that “a special master could be 

appointed to monitor the [abatement].”); Gwinnett County v. Vaccaro, 376 

S.E.2d 680, 682 (Ga. 1989) (in public nuisance action finding “no error in 

either the trial judge’s appointment at county expense of a monitor to 

supervise the necessary cleanup efforts at the Yellow River plant or in the 

order of other measures which require expenditures.”); Custred v. Jefferson 

County, 360 So.2d 285, 288 (Ala. 1978) (wherein trial court interrupted trial 

to appoint an independent special master to study and research the condition 

of water in stream and lake alleged to be a public nuisance and to render a 

report thereon). 

In addition, there are numerous examples of public nuisance cases in 

which special masters were employed for other purposes. See, e.g., New 

Jersey v. City of New York, 283 U.S. 473, 473 (1931) (recognizing a court’s 

authority to appoint a special master to receive evidence and render a report 

in public nuisance case); N.A.A.C.P. v. Acusport Corp., 216 F. Supp. 2d 59, 59 

(E.D.N.Y. 2002) (appointing special master in public nuisance suit to resolve 

discovery dispute); Charleston Comm. for Safe Water v. Commissioners of 

Pub. Works, 331 S.E.2d 371, 371 (S.C. Ct. App. 1985) (using special master to 

receive evidence in a public nuisance case); Mercer v. Keynton, 163 So. 411, 

413 (Fla. 1935) (same).

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judge in equity has inherent power to appoint persons 

from outside the court system for assistance. 138 

Finally, in addition to the clear authority imparted to the trial 

court by Rule 53, a court also has the ability to appoint a Special 

Master pursuant to its inherent equitable powers. Specifically, 

abatement of a public nuisance requires the Court to utilize its 

inherently flexible powers to fashion an appropriate remedy. The 

“essence of equity jurisdiction has been the power . . . to mould 

each decree to the necessities of the particular case.” 139 

Furthermore, the Court’s equitable powers are even broader and 

more flexible when considering equitable issues implicating the 

public interest. In Porter v. Warner Holding Co., 140 the United 

States Supreme Court recognized that “since the public interest is 

involved in a proceeding of this nature, those equitable powers 

assume an even broader and more flexible character than when 

only a private controversy is at stake.” 141 Pursuant to these 

equitable powers, the Court may appoint a person to assist in 

administering an equitable remedy. 142 

138.Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 743 (6th Cir. 1979). 

See also Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp. 1291, 

1313 (W.D.N.C. 1969), vac. on other grounds, 431 F.2d 138 (4th Cir.), on 

remand, 318 F.Supp. 786 (1970), aff’d, 402 U.S. 1 (1971) (the district court 

appointing a special master who was an expert ‘consultant’ in educational 

administration “to prepare immediately plans and recommendations to the 

court for desegregation of the schools.”); Hart v. Cmty. Sch. Bd. of Brooklyn, 

383 F. Supp. 699, 765 (E.D.N.Y. 1974) (court noting that “[m]asters to 

determine remedies after liability has been determined by the court . . . have 

been particularly useful.”). 

139.Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). See also Texaco 

Puerto Rico, Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 874 (1st Cir. 1995) 

(“This emphasis on the particulars of each individual case is consistent with the 

central feature of equity jurisdiction: ‘the ability to assess all relevant facts and 

circumstances and tailor appropriate relief on a case by case basis.’” (quoting 

Rosario-Torres v. Hernandez-Colon, 889 F.2d 314, 321 (1st Cir. 1989)); Lussier 

v. Runyon, 50 F.3d 1103, 1110 (1st Cir.1995) (stating that “the hallmarks of 

equity have long been flexibility and particularity”). 

140.328 U.S. 395, 398 (1946) (citing Virginian R. Co. v. System Fed’n, 

300 U.S. 515, 552 (1937)). 

141.See also United States v. First Nat’l City Bank, 379 U.S. 378, 383 

(1965) (“‘Courts of equity may, and frequently do, go much farther both to give 

and withhold relief in furtherance of the public interest than they are accustomed 

to go when only private interests are involved.’”). 

142.See Warwick Sch. Comm. v. Warwick Teachers’ Union Local 915, 613 

A.2d 1273, 1276 (R.I. 1992) (Court “may appoint one or more special masters 

or mediators to assist in the implementation and facilitation of such

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If the special master is appointed, the State has set forth the 

parameters of the abatement it will seek. Contrary to the 

erroneous statement and reports that the State is seeking full 

scale removal of all lead paint from all buildings in the State of 

Rhode Island, 143 the State instead seeks an order requiring 

Defendants to administer and operate programs for the citizens of 

Rhode Island that would “assist in the remediation and abatement 

of lead-based paint and/or lead-based paint hazards in properties 

in which they own or reside.” 144 

If successful in implementing this statewide abatement of 

lead pigments in paints, the result of the prolonged Rhode Island 

litigation will be to ensure the future for successive generations. 

Children will no longer have to be lead detectors; no child will face 

an uncertain future as a result of childhood lead poisoning; 

parents and homeowners will be provided with the tools necessary 

to inactivate a known toxin in their homes and protect not only 

their own children, but every child that comes to live in that home. 

In the words of a long-term lead poisoning prevention advocate in 

Rhode Island: 

“We are absolutely thrilled,” said Roberta Hazen 

Aaronson, executive director of the Childhood Lead 

Action Project, an advocacy group for lead-poisoned 

children. “Sometimes in this not so friendly world, the 

negotiations.”); Ruiz v. Estelle, 679 F.3d 1115, 1161(5th Cir. 1982), rev’d on 

other grounds, (“rule 53 does not terminate or modify the district court’s 

inherent equitable power to appoint a person, whatever be his title, to assist 

it in administering a remedy. The power of a federal court to appoint an 

agent to supervise the implementation of its decrees has long been 

established. Such court-appointed agents have been identified by “a confusing 

plethora of titles: ‘receiver,’ ‘Master,’ ‘Special Master,’ ‘master hearing officer,’ 

‘monitor,’ ‘human rights committee,’ ‘Ombudsman,’ “ and others. The function 

is clear, whatever the title.”); United States v. Connecticut, 931 F. Supp. 974, 

984 (D. Conn. 1996) (“[b]eyond the provisions of [Fed.R.Civ.P. 53] for 

appointing and making references to Masters, a federal district court has the 

inherent power to supply itself with [a special master] for the administration 

of justice when deemed by it essential.” (quoting Ruiz v. Estelle, 679 F.2d 

1115, 1161 (5th Cir. 1982)). 

143.See Peter B. Lord, R.I. Sets Costs of Lead Clean-Up, THE PROVIDENCE 

JOURNAL, April 5, 2006 at A2 (wherein it was reported that “[t]he paint 

companies insist the state is going beyond state and federal policies that call 

for making homes lead-safe, rather than lead-free.”). 

144.Plaintiff’s Response to Defendants’ Interrogatories, Dated November 

30, 2004.

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Goliaths are defeated and justice triumphs. This 

precedent-setting decision feels like a home run for the 

families devastated by lead poisoning and for a 

community that has borne the cost of this industry-made 

public health disaster.” 145 

III. NATIONAL TREND APPLYING PUBLIC NUISANCE LAW TO 

LEAD PIGMENT CASES 

The Rhode Island verdict could presage a national trend 

toward greater protection of lead poisoned victims. While the 

Defendants and those critical of the Rhode Island suit have 

claimed that the suit is “bizarre” and “quirky,” 146 the reality is 

that the law and the facts of this case are equally applicable in 

other jurisdictions. In the last year alone, , courts in New Jersey, 

Wisconsin and California have all affirmed a governmental 

entity’s right and obligation to bring a suit on behalf of the public 

in order to remedy the public nuisance caused by the presence of 

lead pigment in paint on buildings in those states. In addition, 

the Supreme Court of Wisconsin has also affirmed the right of an 

individual lead poisoned child to sure the lead pigment industry 

notwithstanding his inability to identify the manufacturer of the 

particular lead pigment he ingested. Each of these decisions 

signals a change in the landscape of lead pigment litigation, and 

sends a clear message to these and other possible defendants that 

they will be held accountable for their actions. 

A. New Jersey 

In 2000, twenty-six cities and towns in New Jersey brought 

suit against manufacturers, sellers, and promoters of lead 

pigment seeking to recover costs for detecting and removing lead 

paint, providing medical care to lead-poisoned residents and for 

developing educational programs. Plaintiffs sought to recover 

these expenses through claims based on public nuisance and 

145.Peter B. Lord, 3 Companies Found Liable in Lead-Paint Nuisance 

Suit, THE PROVIDENCE JOURNAL, Feb. 23, 2006, at A-1. 

146.Creswell, supra note 16 (“Three defense lawyers interviewed for this 

article said that this was one of the most bizarre lawsuits and trials of their 

careers. They blame what they call Rhode Island’s quirky public nuisance 

laws.”)

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several other claims. On November 4, 2002, the motion judge 

granted defendants’ omnibus motion to dismiss. 147 On August 17, 

2005, the New Jersey court reversed the motion judge’s dismissal 

of the public nuisance cause of action, finding that a municipal 

body has a common law right to abate a nuisance by summary 

proceedings. 148 In addition the court concluded, as the Rhode 

Island Superior Court did, that a common law public nuisance 

claim 

[W]ould not subvert the goals of the [New Jersey] Lead 

Paint Statute, and, in fact, such action would foster those 

goals. Each remedial tool looks to different responsible 

parties. The Lead Paint Statute imposes a duty of 

abatement on property owners, while this civil action 

demands that the named paint-industry defendants 

compensate the cities for their expenditures caused by 

defendants’ creation of a public nuisance. This civil suit 

can proceed on a parallel track that need not ever 

intersect with the mechanism set forth in the Lead Paint 

Statute. The relief demanded in the complaint—funding 

future programs and compensating the municipalities for 

their abatement and health-care expenses— would not 

interfere with the municipalities’ ongoing enforcement 

efforts under the Lead Paint Statute; their boards of 

health remain free to sue property owners for the costs of 

removal. And, the State Department of Health may 

prosecute disorderly persons complaints against violating 

owners. None of the statute’s enforcement tools may be 

used against manufacturers or distributors. Hence, the 

two classes of remedies are complementary, not 

conflicting or duplicative. 149 

Importantly, as to the applicability of public nuisance law to 

lead pigment and lead poisoning claims, the Appellate Division 

found that “public health problems such as lead-paint 

contamination and illnesses casually linked thereto require the 

expenditure of public funds to provide medical diagnostic and 

treatment services, particularly to members of the public who 

147.In Re Lead Paint, 2002 WL 31474528 (N.J. Super. Law. Div.). 

148.In Re Lead Paint, 2005 WL 1994172 (N.J.Super.A.D. Aug 17, 2005). 

149.In Re Lead Paint, 2005 WL 1994172 at *5.

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have no access to health coverage or have insufficient resources to 

attend to their healthcare needs.” 150 Affirming the relevancy of an 

abatement remedy, the court also found that “[t]he very presence 

of lead paint – even lead paint that is never ingested – has 

purportedly caused plaintiffs to incur costs of removing lead paint 

and of funding detection and education programs. Thus the 

complaint’s key proximate cause averment is. . .Plaintiffs also 

allege damages to themselves. . . .the costs of discovering and 

abating Lead. . .” 151 

The New Jersey case affirmed by the Appellate Division is 

pending on appeal to the New Jersey Supreme Court. 152 

B. City of Milwaukee 

The City of Milwaukee brought suit against NL and Mautz 

Paint to recover costs associated with the city’s abatement of leadbased 

paint hazards. The city asserted claims for public nuisance, 

conspiracy and restitution, alleging that the defendants were “a 

substantial factor in contributing to the community-wide, leadbased 

public nuisance in Milwaukee.” 153 The defendants moved 

for summary judgment, claiming that the City was required to 

prove ‘at a minimum, that [defendants’] pigment or lead paint. . is 

present on windows in . properties and that their conduct 

somehow caused the paint to become a hazard to children.” 154 The 

court held “that to establish a claim of creating a public nuisance, 

a plaintiff must prove that the defendants’ conduct was a 

substantial cause of the existence of a public nuisance and that 

the nuisance was a substantial factor in causing injury to the 

public, which injury is the subject of the action. Finally, public 

policy considerations must also be considered because, similar to 

liability for negligence, liability for creating a public nuisance can 

be limited on public policy grounds.” 155 The court rejected the 

150.Id. at * 13. 

151.Id. 

152.In reversing the trial court’s decision, the appellate court relied in 

part on the Rhode Island trial court’s decision, signaling that the court’s 

decisions therein are not quite as “bizarre” as defense counsel have 

contended. See id. at * 15. 

153.City of Milwaukee v. NL Industries, Inc., 691 N.W. 2d 888, 893 

(Wisc. App. 2004). 

154.Id. 

155.Id. at 892.

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defendants’ position, finding instead that product identification 

and property specific evidence were not required to prove that a 

community-wide public nuisance existed or that the defendants 

were liable for that nuisance. 156 The court agreed, recognizing the 

communal harms associated with lead poisoning: 

Public nuisance is focused primarily on harm to the 

community or the general public. . . .[T]he allegation at 

its essence is that defendants sold and promoted a 

dangerous product to a community and that product 

caused a serious public health problem in that 

community. The City, rather than only the sick children, 

has suffered and sustained an injury. This injury, unlike 

injury suffered by individuals, is community-wide and 

affects even those whose health is not compromised by 

lead-paint poisoning. The City is also the entity most 

reasonably able to remedy this community-wide injury to 

public health. 157 

The Wisconsin Court of Appeals determined that allegations 

of marketing, promoting, and manufacturing Lead for use in 

paints and coatings were sufficient to establish liability for 

creating a public nuisance in the absence of product and/or 

manufacturer identification. The case is scheduled for trial in 

early 2007. 

C. California 

Just days after the Rhode Island jury reached its verdict, the 

California Appeals Court, Sixth District permitted government 

entities to pursue a public nuisance cause of action against the 

former manufacturers of lead pigments. 158 In that case, “a group 

of governmental entities acting for themselves, as class 

representatives, and on behalf of the People of the State of 

California, filed a class action against a group of lead 

156.Id. at 894. 

157.Id. at 893. 

158.See County of Santa Clara v. Atlantic Richfield Co., 137 Cal.App.4th 

292, 40 Cal.Rptr.3d 313 (Cal.App. 6 Dist. 2006). In addition to reversing the 

trial court and reinstating the public nuisance cause of action, the court also 

reinstated the plaintiffs’ strict liability, negligence and fraud causes of action.

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manufacturers. 159 This class action suit alleged that the 

manufacturers were liable under under strict product liability, 

negligence and fraud “for damages caused by lead paint.” 160 The 

suit asks for abatement, injunctive relief, restitution and 

disgorgement of profits. 161 

Like the Rhode Island case, the plaintiffs in the California 

case alleged that the presence of lead pigment was a public 

nuisance because it “is injurious to the health of the public.” 162 

Further, as in the Rhode Island case, the complaint alleged that 

defendants had created and/or contributed to the creation of the 

public nuisance by “[e]ngaging in a massive campaign to promote 

the use of Lead on the interiors and exteriors of private residences 

and public and private buildings and for use on furniture and toys; 

failing to warn the public about the dangers of lead; selling, 

promoting and distributing lead; trying to discredit evidence 

linking lead poisoning to lead; trying to stop regulation and 

restrictions on lead; and trying to increase the market for lead.” 163 

Finally, like Rhode Island, the “remedy sought was abatement 

‘from all public and private homes and property so affected 

throughout the State of California.’” 164 

The court first concluded that the complaints identified a 

condition that could be considered a public nuisance and that 

abatement was an appropriate remedy: “Clearly their complaint 

was adequate to allege the existence of a public nuisance for which 

these entities, acting as the People, could seek abatement.” 165 In 

considering whether the defendants could be liable for that 

nuisance, the court expressly rejected the contention that product 

manufacturers could not be held liable for creating a public 

nuisance. Instead, the court found: 

that a “representative public nuisance cause of action 

seeking abatement of a hazard created by affirmative and 

knowing promotion of a product for a hazardous use is not 

‘essentially’ a products liability action ‘in the guise of a 

159.Id. at 319. 

160.Id. 

161.Id. at 319. 

162.Id. at 324. 

163.Id. 

164.Id. 

165.Id. at 325.

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nuisance action’ and does not threaten to permit public 

nuisance to ‘become a monster that would devour in one 

gulp the entire law of tort. . . .’ Because this type of 

nuisance action does not seek damages but rather 

abatement, a plaintiff may obtain relief before the hazard 

causes any physical injury or physical damage to 

property. A public nuisance cause of action is not 

premised on a defect in a product or a failure to warn but 

on affirmative conduct that assisted in the creation of a 

hazardous condition. Here, the alleged basis for 

defendants’ liability for the public nuisance created by 

lead paint is their affirmative promotion of lead paint for 

interior use, not their mere manufacture and distribution 

of lead paint or their failure to warn of its hazards. 166 

The court then went on to find that public nuisance liability 

and products liability were not interchangeable claims: “A 

products liability action does not provide an avenue to prevent 

future harm from a hazardous condition, and it cannot allow a 

public entity to act on behalf of a community that has been 

subjected to a widespread public health hazard. For these reasons, 

we are convinced that the public nuisance cause of action in the 

third amended complaint is not a disguised version of plaintiffs’ 

products liability causes of action . . . .” 167 

The appellate division remanded the case back to the trial 

court. As of the time this article was written, the parties were 

still awaiting the return of the case to the trial level so that a trial 

date could be set. 

D. Thomas v. Mallett 

The Thomas case is a single plaintiff case brought against the 

plaintiff’s landlords and against the same lead industry 

defendants as the State of Rhode Island sued in its public 

nuisance case. 168 The case proceeded against the industry 

defendants based on a possible application of the risk contribution 

theory of Collins v. Eli Lilly, 116 Wis. 2d 166, 342 N.W.2d 37 

166.Id. at 328. 

167.Id. at 329. 

168.See Thomas v.Mallett, 285 Wis.2d 236, 701 N.W.2d 523 (2005).

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(1984) which permitted those injured by DES to recover against 

the DES manufacturers, despite the inability of the Plaintiff to 

identify the specific manufacturer of the DES that caused the 

injury. 

While the case involved different legal theories of liability 

than public nuisance, the Wisconsin Supreme Court drew a 

number of conclusions that apply in the public nuisance context. 

First, the court expressed “serious concerns” with pigment 

manufacturers’ attempts to displace blame for lead poisoning from 

themselves to landlords. 169 Second, the court found that, while 

landlords could share in that blame, “landlords are not to blame 

for the fact that the lead pigment in the paint is poisonous in the 

first instance.” 170 Third, the court recognized that the pigment 

manufacturers “did more than simply contribute to a risk,” but 

knowingly produced and promoted the harmful product that 

created that risk. 171 Finally, and perhaps most importantly, the 

court recognized the communal harm associated with lead 

poisoning: “the problem of lead poisoning. . .is real[,]it is 

widespread and represents “a public health catastrophe that is 

poised to linger for quite some time.” 172 This recognition of the 

communal harm associated with lead poisoning represented the 

crux of Rhode Island’s public nuisance claim against the lead 

paint manufacturers. 

III. CONCLUSION 

While the case of State of Rhode Island v. Atlantic Richfield 

Company, NL Industries, Inc., Millennium Holdings LLC, and 

The Sherwin-Williams Company saw the first successful 

application of public nuisance law against the lead pigment 

industry for its role in creating a state-wide public health crisis, 

this unique tort is solidly rooted in the history of Rhode Island 

jurisprudence. The abatement remedy ordered by the jury will 

ably supplement the decades of work done by children’s health 

and housing advocates to battle childhood lead poisoning and raise 

awareness about the importance of healthy and safe housing. 

169.Id. at 552. 

170.Id. at 554. 

171.Id. at 558. 

172.Id.

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Precisely what that remedy will consist of is in the hands of the 

trial court and is the subject of more briefing and argument by the 

parties. This additional debate over the parties’ abatement 

proposals, which are worlds apart, is a small delay in what will be 

the ultimately triumphant outcome for the people of the State of 

Rhode Island: a housing stock that is free of lead and lead 

hazards. Additionally, Rhode Island’s victory in its public health 

lawsuit may be a precursor of things to come in other 

jurisdictions. With appellate courts in other states endorsing the 

applicability of public nuisance law to lead pigment suits, this 

ancient cause of action has found new life in modern 

environmental torts. Furthermore, over and above any legal 

impact, the fact that, under public nuisance law, other states may 

have the opportunity to benefit their citizens by seeking 

abatement of lead and lead hazards from their housing is an 

important public health victory.

MATZKO 

5/15/2006 5:19 PM 

The Obfuscation of Rhode Island’s 

Clearly Expressed Constitutional 

Right to Bear Arms: Mosby v. Devine 

Claudia J. Matzko * I. INTRODUCTION 

Like most other states, the Rhode Island Constitution 

contains a “right to bear arms” provision. 1 The text of the Rhode 

Island Constitution has been preserved unchanged since the 

framers drafted the first version of the Constitution in 1842: “the 

right of the people to keep and bear arms shall not be infringed.” 

For over one hundred fifty years, the scope and nature of the 

Rhode Island Constitution’s article I, section 22 Declaration of 

Rights provision remained unquestioned, until 2004, when the 

Rhode Island Supreme Court decided Mosby v. Devine. 2 

Courts and scholars interpreting state constitutional right to 

bear arms provisions or the Second Amendment of the U.S. 

Constitution generally espouse one of three models. 3 The first 

model involves a “states’ rights” or “collective rights” 

interpretation and believes that the right to bear arms does not 

apply to individuals. 4 Rather, the provision was drafted to 

guarantee a general right of a state’s people to have a militia. The 

* Juris Doctor Candidate, Roger Williams University School of Law 

(May 2006). 

1. R.I. CONST. art. I, § 22. 

2. 851 A.2d 1031 (R.I. 2004). 

3. Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 

104 YALE L.J. 995, 1003-04 (1995) (book review). 

4. This approach has also been referred to as civic republicanism. David 

B. Kopel, Clayton E. Cramer, & Scott G. Hattrup, A Tale of Three Cities: The 

Right to Bear Arms in State Supreme Courts, 68 TEMP. L. REV. 1177, 1187 

(1995). Supporters of gun control generally advocate this theory. 

651

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purpose of the local militia was to protect a state from the 

possibility of a potentially oppressive, national standing army. 

The second model has been referred to as the “sophisticated 

collective rights” model and purports to recognize a limited 

individual right. 5 Under this approach, an individual has a right 

to bear arms only through participation in militia activities. The 

right to keep arms applies solely to members of the militia, and 

only if the government does not provide the necessary arms. 6 

Thus, although the right to keep arms and the right to bear arms 

are considered separately, both the individual right to keep and to 

bear arms are limited to the militia context. This view has the 

potential on a theoretical level to completely disarm the entire 

civilian population, or alternatively, to render the individual right 

obsolete because the concept of the militia has disappeared. 7 The 

third model is the individual rights model. Under this view, the 

intent of the framers was to create an individual right to keep and 

bear arms. Notably, all three models arose from constitutional 

originalists, 8 and the comparison of the concepts is largely a 

matter of whose version of history to believe. 

The objective of this Article is to supplement Rhode Island’s 

right to bear arms discourse with arguments and research that 

advance the view that Rhode Island’s right to bear arms provision 

is clearly an individual right, entitled to full constitutional 

protection. This Article agrees with the dissent’s position in Mosby 

v. Devine. However, this Article does not attempt a comprehensive 

recap or analysis of the myriad issues at stake. Rather it presents 

arguments and research which complement or amplify the 

thorough investigation of the Mosby court into Rhode Island’s 

right to bear arms provision. First, Part II of this Article will 

present the Mosby case. In Part III, state constitutional analysis 

in Rhode Island will be introduced, both in general and as applied 

to Mosby. This section contends that the majority’s constitutional 

analysis in Mosby is based on research that is too narrow in scope. 

Part IV will discuss the word “people” as used in article I, section 

5. Id. 

6. See United States v. Emerson, 270 F.3d 203, 219 (5th Cir. 2001). 

7. See Cottrol & Diamond, supra note 3. Militia would be unnecessary if 

there was no longer a need to counter an oppressive standing army. 

8. David B. Kopel, The Second Amendment in the Nineteenth Century, 

1998 BYU L. REV. 1359, 1362.

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5/15/2006 5:19 PM 

2006] MOSBY V. DEVINE 653 

22. By means of textual and doctrinal analysis, this Article will 

argue that the Mosby majority’s own broad definition of the word 

undermines its own argument restricting the people’s right to bear 

arms to a militia context. Part V will discuss the meaning of “bear 

arms” from both a textual and historical vantage, using an 

expanded comparative approach. Part V will also explore Rhode 

Island’s 1790 Bill of Rights. Next, Part VI will compare other 

extant state constitutions to Rhode Island’s right to keep and bear 

arms provision, using both textual and structural modalities. 

Finally, this Article concludes with the argument that the right to 

bear arms is an individual fundamental right, entitled to full 

constitutional protection. 

II. MOSBY V. DEVINE 

In a case of first impression, the Mosby court ruled that a 

licensing statute under Rhode Island’s Firearms Act did not 

impinge on the state’s constitutional right to keep and bear arms. 

While the court did not specifically adopt the sophisticated 

collective rights model, its reasoning was closest to the collective 

rights approach. 9 However, the holding in Mosby is unclear and, 

ultimately, the court did not decide the scope or limits of the right 

to bear arms provision. 10 Instead, the court recognized an 

individual right to keep and bear arms and simultaneously 

concluded that the “bear arms” language should be read in the 

collective, military context. 11 The court reached this conclusion by 

grouping the right to keep arms and the right to bear arms 

concepts on one hand, and separately analyzing the concept of 

right to bear arms on the other. The results are conflicting and 

implausible. 

The two plaintiffs in Mosby applied individually to the State 

of Rhode Island Department of the Attorney General (“Attorney 

General”) for a permit to carry a concealed weapon under Rhode 

Island’s Firearms Act. This act contains two separate licensing 

9. The Mosby court only recognized the “collective” and “individual” 

rights models. Also, in the sophisticated collective rights model both the right 

to keep and bear arms are understood in the militia context. In Mosby, the 

right to keep arms is retained as an individual right and the right to bear 

arms pertains to the militia. 

10. See Mosby, 851 A.2d at 1043. 

11. See id. at 1039, 1043.

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statutes: § 11-47-18 provides for a discretionary grant by the 

Attorney General of a firearms permit “upon a proper showing of 

need” and § 11-47-11 provides mandatory licensing by 

municipalities, for a “suitable person.” 12 Thus, one provision was a 

discretionary “may grant” provision and one was a mandatory 

“shall grant” provision. Apparently, the Attorney General had 

instructed municipalities to consider an applicant suitable only if 

they had first been granted a permit under § 11-47-18, in effect 

circumventing the “shall grant” statute. 13 Thus, the plaintiffs 

applied under the discretionary “may grant” statute and only the 

issue of the constitutionality of § 11-47-18 was before the court. 14 

Mosby was an avid gun collector and requested a permit 

because he sometimes traveled with large sums of money. 15 Coplaintiff 

Gollotto was a storeowner, who also traveled with large 

amounts of cash, and feared for his safety because a number of 

robberies had occurred in his store’s neighborhood. 16 Each 

applicant was apparently a “suitable person,” applying to license a 

handgun, which, unlike a sawed-off shotgun, for example, is not 

categorically associated with unlawful behavior. In fact, as the 

dissent points out, a handgun is just the type of weapon that one 

would expect a citizen would lawfully carry to protect himself. 17 

Nonetheless, using its discretion under the licensing statute, the 

Attorney General denied each application, citing an insufficient 

showing of need. 18 There was no hearing or appeal procedure 

within the application process at the time. 19 In fact, the Attorney 

General followed no written departmental policy for deciding 

permit applications. 

The dissent vigorously argued that the Attorney General 

conducted an arbitrary licensing scheme in violation of the Rhode 

Island Constitution. 20 Furthermore, the dissent considered the 

right to bear arms provision an individual right, entitled to full 

12. R.I. GEN. LAWS §§ 11-47-18, 11-47-11 (2002 & Supp. 2005). 

13. See Mosby, 851 A.2d at 1078 n.61 (Flanders, J., dissenting). 

14. Rhode Island General Laws § 11-47-11 was not before the court, 

although the court did decide other related matters. 

15. Mosby, 851 A.2d at 1035. 

16. Id. 

17. Id. at 1054 (Flanders, J., dissenting). 

18. Id. at 1035. 

19. Id. 

20. See id. at 1052-83 (Flanders, J., dissenting).

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constitutional protection, which would necessarily include due 

process protection. 21 This article posits that the dissent is correct. 

III. R HODE ISLAND STATE CONSTITUTIONAL ANALYSIS 

The Rhode Island Supreme Court has stated that its function 

in construing the constitution is to ascertain and effectuate 

framers’ intent. 22 State constitutions derive their force from the 

people who ratify them and, thus, the intent that the court seeks 

to determine is that of the people. 23 The court interprets the words 

of the constitution according to their plain, ordinary, and 

generally accepted meaning, assuming that each word was 

carefully chosen. 24 The Mosby majority failed to address several 

underlying questions concerning plain meaning construction. To 

which rights did the ratifiers of the 1842 constitution and the readapters 

of the constitution in 1986 25 think they were entitled 

when they ratified the Rhode Island Constitution What did the 

people think “the right of the people to keep and bear arms shall 

not be infringed” plainly meant Could the ratifiers have 

understood the right to extend to only a subset of people, such as, 

the militia Could they have voted for an individual right to keep 

arms, with a right to bear arms restricted to the militia, as the 

Mosby court held The clear answers can be avoided only by 

evading the questions; the plain meaning of the provision grants 

an unqualified right to people to keep and bear arms. 

The Rhode Island Supreme Court properly considers extrinsic 

sources in interpreting the Rhode Island Constitution, including 

proceedings of constitutional conventions, the history of the times, 

changes to a constitutional provision, and other extant 

constitutions. 26 In the Debates and Proceedings in the 1842 

Constitutional Convention at Newport, the framers frequently 

referred to the constitutions and policies of other states. 27 There 

21. See id. (Flanders, J., dissenting). 

22. Id. at 1038; City of Pawtucket v. Sundlun, 662 A.2d 40, 45 (1995). 

23. 16 AM. JUR. 2D Constitutional Law § 58 (1998). 

24. Mosby, 851 A.2d at 1038; Sundlun, 662 A.2d at 45. 

25. Rhode Island held a constitutional convention in 1986. As noted, art. 

I, § 22 was unchanged. 

26. See Mosby, 851 A.2d at 1038 (using all four sources). 

27. See, e.g., State of R.I., DEBATES AND PROCEEDINGS IN THE STATE 

CONVENTION HELD AT NEWPORT, SEPTEMBER 12 TH , 1842, FOR THE ADOPTION OF A 

CONSTITUTION OF THE STATE OF RHODE ISLAND 34 (1842) (This source quoted

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were twenty-seven state constitutions 28 in 1842; to which other 

states were they referring The writings of Elisha R. Potter 29 

provide an answer. Potter was an influential and prominent 

leader from South Kingston, and a leading drafter of the 1842 

Constitution. 30 Potter’s notes from the period referenced twentyfour 

of the twenty-seven extant state constitutions. 31 Because 

readily available 32 historical documents indicate that at least one 

Mr. Jackson as stating that “In forming a Constitution, we should consider 

this as a new State, and the models of other republics should be considered.”). 

28. The state constitutions in effect at the time the Rhode Island 

Constitution was drafted were: Alabama (1819), Arkansas (1836), 

Connecticut (1818), Delaware (1831), Florida (1838), Georgia (1798), Illinois 

(1818), Indiana (1816), Kentucky (1799), Louisiana (1812), Maine (1820), 

Maryland (1776), Massachusetts (1780), Michigan (1835), Mississippi 1832), 

Missouri (1820), New Hampshire (1792), New Jersey (1776), New York 

(1821), North Carolina (1776), Ohio (1802), Pennsylvania (1838), South 

Carolina (1790), Tennessee (1834), Texas (1836), Vermont (1793), and 

Virginia (1830). See generally SOURCES AND DOCUMENTS OF UNITED STATES 

CONSTITUTIONS (William F. Swindler, ed., 1992). 

29. One publication listed Elisha Potter’s credentials: 

POTTER, Elisha Reynolds, (son of Elisha Reynolds Potter [1764- 

1835]), a Representative from Rhode Island; born in Little Rest (now 

Kingston), R.I., June 20, 1811; attended the Kingston Academy and 

was graduated from Harvard University in 1830; studied law; was 

admitted to the bar in 1832 and practiced in South Kingstown 

Township, R.I.; adjutant general of the State, 1835-1836; member of 

the State house of representatives, 1838-1840; elected as a Law and 

Order Party candidate to the Twenty-eighth Congress (March 4, 

1843-March 3, 1845); chairman, Committee on Revisal and 

Unfinished Business (Twenty-eighth Congress); unsuccessful 

candidate for reelection in 1844 to the Twenty-ninth Congress; 

served in the State senate, 1847-1852 and 1861-1863; State 

commissioner of public schools from 1849 to 1854, when he resigned; 

associate justice of the Rhode Island Supreme Court from March 16, 

1868, until his death in Kingston, Washington County, R.I., April 10, 

1882; interment in the family burial ground, Washington County, 

R.I. 

BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS: 1771-2005 1756 

(United States Government Printing Office, 2005). 

30. Id. He chaired a number of committees at the convention. Id. 

31. The states referenced were Alabama, Arkansas, Connecticut, 

Delaware, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maine, Maryland, 

Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New York, 

North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Vermont, 

and Virginia. Elisha Reynolds Potter, Jr. Papers, Rhode Island Historical 

Society, MSS 629 SG3 (on file with author). 

32. See Rhode Island Historical Society, www.rihs.org/muscollections 

research.html.

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highly influential framer, Elisha Potter, considered nearly all, if 

not all, the state constitutions, and because in the debates and 

proceedings, other framers referred numerous times to other 

states, this article argues that if textual comparisons are made, 

they must be made to all extant constitutions. Part V will explore 

these comparisons. 

In large part, the Rhode Island Supreme Court adopted the 

meaning of “bear arms” from Aymette v. State, 33 an 1840 Supreme 

Court of Tennessee case, which determined that the phrase was 

restricted to the military context. However, the Rhode Island 

Supreme Court failed to provide an actual link between the 

Tennessee court and the Rhode Island framers. Thus, the Mosby 

court’s analysis is built on an arbitrary assumption, that the 

framers were either aware of and in accord with Aymette or that 

they independently held the Aymette view. The court also 

neglected to consider alternative early constitutional decisions 

where the right to bear arms clearly applied to civilians, 34 which 

will be further discussed in Part IV. 

IV. THE PEOPLE 

The Rhode Island Supreme Court acknowledged that the 

meaning of the word “people” is key to interpreting article I, 

section 22. 35 The court looked to its own precedent, citing an 1896 

Supreme Court advisory opinion. 36 This opinion, In re Incurring 

State Debts, considered article 4, section 13 of the Rhode Island 

Constitution, which provided in pertinent part, “the general 

assembly shall have no power, hereafter without express consent 

of the people, to incur state debts to an amount exceeding fifty 

thousand dollars. . . .” 37 The governor had asked the court whether 

the word “people” referred to the entire electorate or only to the 

taxpayers. 38 The advisory opinion compared the use of the word 

“people” in article 4, section 13 to its meaning in other parts of the 

constitution and found “nothing to warrant its restriction.” 39 The 

33. 21 Tenn. (2 Hum.) 154 (1840). 

34. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822). 

35. United States v. Mosby, 851 A.2d 1031, 1040 (R.I. 1896). 

36. In re Incurring of State Debts, 37 A. 14 (R.I. 1896). 

37. Id. at 14. 

38. Id. at 14. 

39. Id. at 15.

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court stated that, “the term ‘people,’ as used in the constitution, is 

broad and comprehensive, comprising in most instances all the 

inhabitants of the state.” 40 Thus, “people” could not be restricted 

to include only a subset of the electorate, the taxpayers. 

Based on precedent and its own comparative analysis of the 

use of the word “people” in the Rhode Island Constitution, the 

Mosby court clearly concluded that “the people” includes all the 

inhabitants of the state. 41 Furthermore, the court noted that 

constitutional rights flow to the people individually. 42 The court 

held that article I, section 22 “provides individuals with a right to 

keep and bear arms, subject . . . to reasonable regulation by the 

state.” 43 

However, later in its opinion, the Mosby court contradicted 

itself by stating that the right to “bear arms” did not apply to all 

individuals, but rather was limited to arms-bearing in a militia 

context. The court applied this restriction only to the “bear arms” 

prong of the right, and stated that all individuals did have a right 

to “keep arms.” 44 Unfortunately, the court did not explain in what 

context all individuals could enjoy a right to keep arms, but that 

only some of those individuals could bear the arms. As noted 

earlier, the Mosby court comes closest to a sophisticated collective 

rights model of analysis. In that view, both the right to keep and 

bear arms is limited to a militia context. However, Mosby differs 

from the collective rights model because, in this part of the 

opinion, the court held that the individual retained the right to 

keep arms, with only the right to bear arms relegated to the 

collective, militia context. 

In U.S. v. Miller, a federal Second Amendment case, the U.S. 

Supreme Court explained that the term “militia” generally 

referred to able-bodied males between the ages of eighteen and 

forty-five. 45 Obviously, the right to bear arms cannot at once apply 

to all the people who inhabit the state, and only those males 

between the ages of eighteen and forty-five in the militia. The 

40. Id. 

41. See Mosby v. Devine, 851 A.2d 1031, 1040-41 (R.I. 2004). 

42. Id. 

43. Id. at 1039. 

44. Id. at 1042. 

45. 307 U.S. 174, 180-81 (1939). See also Uniform Militia Act of 1792, 

CHAP. XXXIII §1, 1 Stat. 271 (1792).

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Mosby holding is questionable because it contradicts its own 

conclusion as to the meaning of “people,” as well as its In Re State 

Debt precedent. The court had clearly established that “people” 

includes all inhabitants, not a subset such as taxpayers or militia. 

IV. THE RIGHT TO BEAR ARMS 

Advocates of a states’ rights or a sophisticated collective 

rights model of constitutional right to bear arms theory believe 

that only members of a militia can bear arms, and can do so only 

during militia duty. The sophisticated collective rights theorists 

alternatively argue that the individual right has disappeared 

because the concept of militia is obsolete. Proponents of the 

individual rights theory advance the position that “bearing arms” 

can refer to any individual, civilian or military. Although the 

Rhode Island Supreme Court initially held that individuals have a 

constitutional right to both keep and bear arms, subject only to 

reasonable governmental restriction (an individual right), the 

court then proceeded to separately analyze “to keep” and “to bear,” 

concluding that individuals have a right to keep arms but they can 

bear arms only in the militia context. 46 Thus, Mosby does not fall 

into any of the existing models of right to bear arms analysis. 

Unlike scholars and courts who advocate either the individual 

right to bear arms or gun control, it is difficult to imagine what 

the Rhode Island Supreme Court intended by retaining the 

individual right to keep arms, and restricting the right to bear 

arms to the militia. 

The Mosby court relied heavily on Aymette v. State to support 

its view that “bear arms” was primarily used in a militia context. 

Indeed, Aymette has been recognized as the best historical case to 

support the collective rights or the sophisticated collective rights 

model for this proposition. 47 In Aymette, the Supreme Court of 

Tennessee construed § 26 of its Declaration of Rights, which 

provided that “the free white men of the State, have a right to 

keep and bear arms for the their common defence.” 48 It 

46. Mosby, 851 A.2d at 1042. 

47. United States v. Emerson, 270 F.3d 203, 229 (5th Cir. 2001). The U.S. 

Supreme Court cited to Aymette in United States v. Miller, 307 U.S. at 174, 

178, 182 (1939). 

48. 21 Tenn. (2 Hum.) 154, 156 (1840).

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determined that the words “for their common defence” meant to 

secure the public defense. 49 Thus, the Aymette court held that the 

right was related to the military context, precisely because the 

objective of the right was for “common defence.” Because the 

Rhode Island provision contains no “common defense” language, 

the comparison to Aymette does little, if anything, to support the 

Mosby majority’s argument that “bear arms” pertained only to a 

military context. 

The Mosby court noted that Aymette was decided a mere two 

years before the Rhode Island Constitution was ratified in 1842. It 

is not clear if the Rhode Island Supreme Court assumed that the 

Aymette court’s ideas about “bearing arms” influenced the Rhode 

Island framers or if it assumed that the framers would have 

independently agreed with the Tennessee Supreme Court. In its 

opinion, the Mosby majority subsequently briefly discussed a 2002 

Ninth Circuit case 50 that held “bear arms” as referring to military 

use only and a 1991 Fifth Circuit case 51 that held “bear arms” as 

referring to both military and civilian use. The court found 

noteworthy that both circuits looked to the Rhode Island 

ratification of the U.S. Constitution for evidence that “bearing 

arms” is a military concept. 52 This paper suggests, infra, an 

opposite conclusion and argues that the Rhode Island ratification 

of the U.S. Constitution supports the position that the Rhode 

Island constitutional right to bear arms is an individual right. 

When the delegates of Rhode Island ratified the U.S. 

Constitution in 1790, they included in the document certain 

fundamental tenets known as Rhode Island’s Bill of Rights. 53 The 

Mosby court cited to the eighteenth part, which permitted 

conscientious objectors to avoid military service. 54 While “bearing 

arms” was indeed used in the military context in this provision, 

the issue is not whether bearing arms applies to the military 

context; it does. Rather, the true issue is whether “bearing arms” 

can also apply to the civilian context. 

49. Id. at 160-62. 

50. Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002). 

51. Emerson, 270 F.3d 203. 

52. Mosby v. Devine, 851 A.2d 1031, 1041 (R.I. 2004). 

53. See generally, Kevin D. Leitao, Rhode Island’s Forgotten Bill of 

Rights, 1 ROGER WILLIAMS U. L. REV. 31 (1996). 

54. Mosby, 851 A.2d at 1041.

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The Mosby majority did not discuss the seventeenth part of 

the 1790 Bill of Rights, which was the right to bear arms provision 

of its day. The provision was embedded in a military context and 

stated: 

That the people have a right to keep and bear arms, that 

a well regulated militia, including the body of the people 

capable of bearing arms, is the proper, natural and safe 

defence of a free state; that the militia shall not be 

subject to martial law except in time of war, rebellion or 

insurrection; that standing armies in time of peace, are 

dangerous to liberty, and ought not to be kept up, except 

in cases of necessity; and that at all times the military 

should be under strict subordination to the civil power; 

that in time of peace no soldier ought to be quartered in 

any house, without consent of the owner, and in time of 

war, only by the civil magistrate, in such manner as the 

law directs. 55 

Fifty years later, in the 1842 Declaration of Rights, article I, 

section 22, the framers of the Rhode Island Constitution reduced 

the right to bear arms provision to “the right of the people to keep 

and bear arms shall not be infringed.” They removed any and all 

military context, plainly granting a right to keep and bear arms to 

the people. The framers did retain the “martial law,” 56 the 

“subordination of military to civil authority,” 57 and the “quartering 

of soldiers” 58 provisions in the 1842 constitution. Notably, in this 

1842 constitution, the military provisions were adjacent to each 

other, but apart from the right to bear arms. Instead, the right to 

bear arms was placed between the “freedom of press” and the 

“rights not enumerated” provisions. Thus, the military provisions 

were grouped, and did not include the right to bear arms 

provision. This structural placement further supports the view 

that the right to bear arms was an individual right, separate from 

and not to be read within the military context. 

Additionally, the Mosby majority ignored pre-1842 case law, 

55. THE COMPLETE BILL OF RIGHTS 182 (Neil H. Cogan, ed., Oxford 

University Press 1997) (R.I. Ratification of the U.S. Constitution, pt. 17.). 

56. R.I. CONST. art. I, § 18. 

57. Id. 

58. R.I. CONST. art. I, § 19.

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which upheld the right to bear arms as an individual right. The 

Tennessee case upon which the Mosby court relied discussed a 

Court of Appeals of Kentucky case, Bliss v. Commonwealth. 59 The 

Bliss court found a law prohibiting a person from carrying a 

concealed weapon to be unconstitutional, because the plain 

meaning of the pertinent provision granted an individual right to 

bear arms. 60 The Kentucky right to bear arms provision stated 

“that the right of the citizens to bear arms in defence of 

themselves and the state, shall not be questioned.” 61 The 

Kentucky court held that Bliss had a constitutional right to bear 

arms, in this case a nonmilitary, concealed sword in a cane. 62 

In 1840, the same year as Aymette was decided, the Supreme 

Court of Alabama, in State v. Reid, 63 afforded constitutional 

protection to the right of individuals to openly bear arms. The 

Reid court also cited Bliss for support of the idea that the right to 

bear arms applied to individuals. 64 Like Kentucky, Alabama’s 

constitution contained language granting the citizens’ “right to 

bear arms in defence of himself and the State.” 65 Both courts 

characterized this language as pertaining to civilian arms-bearing 

activity. 66 Additionally, eleven other early state constitutional 

“right to bear arms” provisions contained the same phrase, 

describing civilian arms-bearing activity. 67 Thus, the Mosby 

59. 12 Ky. (2 Litt.) 90 (1822). 

60. Id. at 90-93. 

61. Id. at 90. 

62. Id. at 90, 93. 

63. 1 Ala. 612 (1840). 

64. Id. at 614. 

65. Id. at 614-15. 

66. Id. at 615; Bliss, 12 Ky. at 91-92. 

67. Alabama, Connecticut, Indiana, Kentucky, Michigan, Mississippi, 

Missouri, Ohio, Pennsylvania, Texas, and Vermont have some sort of “in 

defense of himself” language. See 1 SOURCES AND DOCUMENTS OF UNITED 

STATES CONSTITUTIONS 33 (William F. Swindler ed., Oceana Publications, Inc. 

1973) (Alabama); 2 SOURCES AND DOCUMENTS OF UNITED STATES 

CONSTITUTIONS 145 (William F. Swindler ed., Oceana Publications, Inc. 1973) 

(Connecticut); 3 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 

366 (William F. Swindler ed., Oceana Publications, Inc. 1974) (Indiana); 4 

SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 163 (William F. 

Swindler ed., Oceana Publications, Inc. 1975) (Kentucky); 5 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS 205, 362, 487 (William F. 

Swindler ed., Oceana Publications, Inc. 1975) (Michigan, Mississippi, 

Missouri); 7 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 555 

(William F. Swindler ed., Oceana Publications, Inc. 1978) (Ohio); 8 SOURCES

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majority’s argument that “bear arms” applied only to the military 

context is untenable. 

V. COMPARISONS TO OTHER STATE 

“RIGHT TO KEEP AND BEAR ARMS” PROVISIONS 

Given that the framers indicated that they looked to other 

state constitutions and that Elisha Potter’s notes reflected upon at 

least twenty-four of the twenty-seven extant constitutions, 68 it is 

prudent to compare the text of the Rhode Island Constitution’s 

right to bear arms provision with right to bear arms provisions in 

other states’ constitutions. 

Nine states had either no bill of rights in their constitution or 

no right to bear arms provision. 69 Of the remaining nineteen 

states (twenty including Rhode Island), the Rhode Island 

provision was unique for several reasons. With the exception of 

Missouri, Rhode Island is the only state whose provision is not 

imbedded in a military provision, or located next to a militaryrelated 

right. 70 In 1842, Rhode Island was the only state whose 

AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 304 (William F. Swindler 

ed., Oceana Publications, Inc. 1979) (Pennsylvania); 9 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS 258, 509 (William F. Swindler 

ed., Oceana Publications, Inc. 1979) (Texas, Vermont). 

68. See Mosby v. Devine, 851 A.2d 1031, 1038 (R.I. 2004); City of 

Pawtucket v. Sundlun, 662 A.2d 40, 45 (1995). 

69. In 1842, the Georgia and New Jersey constitutions had no Bill of 

Rights. See 2 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, 

supra note 67, at 458 (Georgia); 6 SOURCES AND DOCUMENTS OF UNITED STATES 

CONSTITUTIONS 367, 449 (William F. Swindler ed., Oceana Publications, Inc. 

1976) (New Jersey). Delaware, Illinois, Louisiana, Maryland, New 

Hampshire, South Carolina, and Virginia had no right to bear arms 

provisions at that time. See 4 THE FEDERAL AND STATE CONSTITUTIONS 2471 

(Francis Newton Thrope, ed., 1993) (New Hampshire); 2 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra note 67, at 217 

(Delaware); 3 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, 

supra note 67, at 214, 237 (Illinois); 4-A SOURCES AND DOCUMENTS OF UNITED 

STATES CONSTITUTIONS 4, 84 (William F. Swindler ed., Oceana Publications, 

Inc. 1975) (Louisiana); 4 SOURCES AND DOCUMENTS OF UNITED STATES 

CONSTITUTIONS, supra note 67, at 340, 372 (Maryland); 8 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra note 67, at 447,476 

(South Carolina); 10 SOURCES AND DOCUMENTS OF UNITED STATES 

CONSTITUTIONS 3, 57 (William F. Swindler ed., Oceana Publications, Inc. 

1979) (Virginia). 

70. 8 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra 

note 67, at 388.

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right to bear arms provision did not include “the common defense” 

or “defense of the state” language, which the Aymette court relied 

on to determine that the Tennessee right to bear arms applied 

only to the military context. 71 As discussed supra, the Mosby court 

incorrectly relied on Aymette for the same proposition. 

Additionally, the Rhode Island right to bear arms provision is 

the only one bound by the strong, unequivocal language, “shall not 

be infringed.” 72 This is of course, the same unambiguous, 

qualifying clause in the Second Amendment of the U.S. 

Constitution. 73 Fifteen state constitutions had no such language, 

and simply granted citizens a right to keep and bear arms. Four 

states’ constitutions provided that the right “shall not be 

questioned.” 74 

It follows from the foregoing analysis that both the clear text 

and the structural placement of the text in article I, when 

compared to other constitutions, 75 strongly supports the idea that 

Rhode Island’s unique right to bear arms provision was intended 

to be an individual right. 

VI. CONCLUSION 

“[Those] who are trying to read the Second Amendment out of 

the Constitution by claiming it’s not an individual right. . . [are] 

courting disaster by encouraging others to use the same means to 

eliminate portions of the Constitution they don’t like.” 76 

In Mosby v. Devine, the majority delivered conflicting and 

71. Id.; See Aymette v. State, 21 Tenn. (2 Hum.) 154, 158 (1840). 

72. 8 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS, supra 

note 67, at 388. 

73. U.S. CONST. amend. II (1791). 

74. Kentucky, Maine, Missouri, Pennsylvania. See 4 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS 163, 316 (William F. Swindler 

ed., Oceana Publications, Inc. 1975) (Kentucky, Maine); 5 SOURCES AND 

DOCUMENTS OF UNITED STATES CONSTITUTIONS 487 (William F. Swindler ed., 

Oceana Publications, Inc. 1975) (Missouri); 8 SOURCES AND DOCUMENTS OF 

UNITED STATES CONSTITUTIONS 304 (William F. Swindler ed., Oceana 

Publications, Inc. 1979) (Pennsylvania). 

75. See Appendix I for the text of each state’s right to bear arms provision. 

See also Appendix II for the placement of the right to bear arms provision in 

each state’s constitution. 

76. Dan Gifford, The Conceptual Foundations of Anglo-American 

Jurisprudence in Religion and Reason, 62 TENN. L. REV. 759, 788-89 (1994) 

(quoting Alan Dershowitz).

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contradictory holdings, which obfuscate and threaten one of Rhode 

Island’s fundamental rights. 77 As outlined in the previous sections 

of this comment, the court stated that article I, section 22, (1) 

“provides individuals with a right to keep and bear arms,” subject 

to reasonable state regulation, 78 (2) that an individual right exists 

to keep but not to bear arms, because “bear arms” language is 

employed exclusively in the collective military context, 79 (3) that 

Mosby did not define the extent or limits of the right to bear arms 

provision, 80 and (4) that the rights of the “people” refers to all 

inhabitants of the state, yet the rights are also restricted to the 

militia. 81 

This Article determined the intended scope and meaning of 

Rhode Island’s right to bear arms provision, not whether the 

provision is “wise.” Rhode Island’s right to bear arms provision is 

unique among states for numerous reasons, not the least of which 

is that it clearly expresses an individual right. In this senselessly 

violent world, perhaps the need for this right should be readdressed. 

82 Constitutional amendment was designed to be a slow 

and cumbersome process, replete with checks and balances, so 

that changes to the constitution could not be hastily adopted. If 

the right to bear arms has indeed become an “embarrassing” 83 

fundamental right, the amendment process should be considered. 

This is far superior to outcome-determinative judicial decisionmaking, 

which cannot withstand scrutiny. 

Additionally, even if the Rhode Island Supreme court had 

clearly and consistently articulated an individual right to keep 

and bear arms, this Article does not suggest that the right is 

77. This assumes that the rights articulated in the constitutional 

Declaration of Rights are fundamental rights. 

78. Mosby v. Devine, 851 A.2d 1031, 1039 (R.I. 2004). 

79. Id. at 1043. 

80. Id. 

81. Id. at 1040-42. 

82. In the aftermath of the Bliss v. Commonwealth decision upholding 

the right to carry concealed weapons, the Kentucky constitutional right to 

bear arms provision was amended, to allow prohibitions on the carrying of 

concealed weapons. State v. Hirsch, 114 P.3d 1104, 1118 (Or. 2005). 

83. See Sanford Levinson, The Embarrassing Second Amendment, 99 

YALE L.J. 637 (1989) (referring to the author’s statement that “For too long, 

most members of the legal academy have treated the Second Amendment as 

the equivalent of an embarrassing relative, whose mention brings a quick 

change of subject to other, more respectable, family members.”).

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5/15/2006 5:19 PM 


beyond reasonable state regulation. However, in Mosby v. Devine, 

a state executive denied two apparently law-abiding, “suitable” 

persons a weapons permit, absent internal departmental 

procedural and due process rights to a hearing, in effect disabling 

a constitutional fundamental right. If the court upholds a 

legislative measure restricting the right to bear arms, it must at a 

minimum comport with basic procedural due process. All rights 

articulated in the Rhode Island Declaration of Rights are entitled 

to constitutional protection. If a right has become useless, 

offensive, or harmful to the people, the Rhode Island Constitution 

should be amended to reflect this sentiment. Until that time 

comes, it is important to remember that the last constitutional 

convention in 1986 retained the rights to keep and bear arms 

provision in exactly its original form. 84 

84. CONSTITUTION OF THE STATE OF RHODE ISLAND AND PROVIDENCE 

PLANTATIONS 11 (The Office of Secretary of State 1988) (commenting that 

section 22, “the right of the people to keep and bear arms shall not be 

infringed,” remained unchanged from the 1843 Rhode Island Constitution).

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APPENDIX I 

RIGHT TO BEAR ARMS 

STATE DATE SECTION TEXT 

English Bill of 

Rights 

Rhode Island 

Ratification 

1689 That the subjects 

which are protestants, 

may have arms for 

their defence suitable 

to their conditions, 

and as allowed by law. 

1790 17th That the people have a 

right to keep and bear 

arms, that a well 

regulated militia, 

including the body of the 

people capable of 

bearing arms, is the 

proper, natural and safe 

defence of a free state; 

that the militia shall not 

be subject to martial law 

except in time of war, 

rebellion or insurrection; 

that standing armies in 

time of peace, are 

dangerous to liberty, 

and ought not to be kept 

up, except in cases of 

necessity; and that at all 

times the military 

should be under strict 

subordination to the civil 

power; that in time of 

peace no soldier ought to 

be quartered in any 

house, without the 

consent of the owner, 

and in time of war, only 

by the civil magistrate, 

in such manner as the 

law directs.

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Rhode Island 1842 Art. I § 22 The right of the people 

to keep and bear arms 

shall not be infringed. 

United States 1791 Amend. II A well regulated 

Militia, being 

necessary to the 

security of a free 

State, the right of the 

people to keep and 

bear Arms, shall not 

be infringed. 

Alabama 1819 Art. I § 23 Every citizen has a 

right to bear arms in 

defence of himself and 

the state. 

Arkansas 1836 Art. II § 21 That the free white 

men of this State shall 

have a right to keep 

and to bear arms for 

their common defence. 

Connecticut 1818 Art. I § 17 Every citizen has a 

right to bear arms in 

defence of himself and 

the State. 

Delaware 1831 No provision 

Florida 1838 Art. I § 21 That the free white 

men of this State shall 

have a right to keep 

and to bear arms for 

their common defence. 

Georgia 1798 No Bill of 

Rights 

Illinois 1818 No provision 

Indiana 1816 Art. I § 20 That the people have a 

right to bear arms for 

the defence of 

themselves and the 

State; and that the 

military shall be kept 

in strict subordination 

to the civil power.

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Kentucky 1799 Art. X § 23 That the rights of the 

citizens to bear arms 

in defence of 


State shall not be 

questioned. 

Louisiana 1812 No provision 

Maine 1819 Art. I § 16 Every citizen has a 

right to keep and bear 

arms for the common 

defence; and this right 

shall never be 

questioned. 

Maryland 1776 No provision 

Massachusetts 1780 Pt. I 

Art. XVII 

The people have a 

right to keep and to 

bear arms for the 

common defence. And 

as, in time of peace, 

armies are dangerous 

to liberty, they ought 

not to be maintained 

without the consent of 

the legislature; and 

the military power 

shall always be held in 

exact subordination to 

the civil authority and 

be governed by it. 

Michigan 1835 Art. I § 13 Every person has the 


the defence of himself 

and the State. 

Mississippi 1832 Art. I § 23 Every citizen has the 


the defence of himself 

and the State. 

Missouri 1820 Art. XIII § 3 That the people have 

the right peaceably to 

assemble for their 

common good, and to 

apply to those vested 

with the powers of

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New Hampshire 1792 Pt. I 

Art. XIII 

government for 

redress of grievances 

by petition or 

remonstrance; and 

that their right to bear 

arms in defence of 

themselves and of the 

State cannot be 

questioned. 

No person who is 

conscientiously 

scrupulous about the 

lawfulness of bearing 

arms, shall be 

compelled thereto, 

provided he will pay 

an equivalent. 

NOTE: 

New Hampshire has 

only this right not to 

bear arms. Other 

states have a similar 

provision in addition 

to their right to bear 

arms provisons. 

New Jersey 1776 No Bill of 

Rights 

New York 1821 Art. VII § 5 The militia of this 

State shall at all times 

hereafter be armed 

and disciplined and in 

the readiness of 

service; but all such 

inhabitants of this 

State, of any religious 

denomination 

whatever, as from 

scruples of conscience 

may be adverse to 

bearing arms, shall be 

excused therefrom by 

paying to the State an

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North Carolina 1776 DR Art. 

XVII 

Ohio 1802 Art. VIII § 

20 

equivalent in money; 

and the legislature 

shall provide by law 

for the collection of 

such equivalent, to be 

estimated according to 

the expense, in time 

and money, of an 

ordinary able-bodied 

militia-man. 

That the people have a 

right to bear arms, for 

the defence of the 

State; and as standing 

armies, in time of 

peace, are dangerous 

to liberty, they ought 

not to be kept; and 

that the military 

should be kept under 

strict subordination to, 

and governed by the 

civil power. 

That the people have a 




State; and as standing 

armies, in time of 

peace, are dangerous 

to liberty, and they 

shall be kept up, and 

that the military shall 

be kept under strict 

subordination to the 

civil power. 

Pennsylvania 1838 Art. IX § 21 That the right of the 

citizens to bear arms, 

in defense of 


State, shall not be 

questioned. 

South Carolina 1790 No provision

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Tennessee 1834 Art. I § 26 That the free white 

men of this State have 

a right to keep and 

bear arms for their 

common defence. 

Texas 1836 DR § 14th Every citizen shall 

have the right to bear 

arms in defence of 

himself and the 

republic. The military 

shall at all times and 

in all cases be 

subordinate to the 

civil power. 

Vermont 1793 Ch. I Art. 16 That the people have a 




State; and, as 

standing armies in 

time of peace are 

dangerous to liberty, 

they ought not to be 

kept up; and that the 

military should be 

kept under strict 

subordination to, and 

governed by, the civil 

power. 

Virginia 1830 No provision

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APPENDIX II 

RIGHT TO BEAR ARMS – LOCATION IN DOCUMENT 

STATE DATE SECTION TEXT LOCATION 

English Bill of 

Rights 

1689 Between raising or keeping 

a standing army and free 

elections 

Rhode Island 

Ratification of 

the U.S. 

Constitution 

Rhode Island 1842 Art. I § 22 Between right to assemble 

and enumeration of rights 

shall not impair or deny 

other rights retained by the 

people 

1790 17th Between freedom of speech 

and press and right to 

conscientious objector status 

United 1791 Amend. II Between freedom of religion, 

States 

press, expression and 

soldier quartered in house 

Alabama 1819 Art. I § 23 Between right to assemble 

Arkansas 1836 Art. II § 

21 

and military provision 

Between right to assemble 

and soldier quartered in 

house. 

Connecticut 1818 Art. I § 17 Between right to assemble 

and military subordination 

to civil power 

Delaware 1831 No 

provision 

Florida 1838 Art. I § 21 Between right to assemble 


house 

Georgia 1798 No Bill of 

Rights 

Illinois 1818 No 

provision 

Indiana 1816 Art. I § 20 Between right to assemble 


house 

Kentucky 1799 Art. X § 

23 



to civil power

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Louisiana 1812 No 

provision 

Maine 1819 Art. I § 16 Between right to assemble 



Maryland 1776 No 

provision 

Massachusetts 1780 Pt. I 

Art. XVII 

Between freedom of the 

press and principles of 

behavior necessary to 

preserve liberty 

Michigan 1835 Art. I § 13 Between habeas corpus and 

military subordination to 

civil power 

Mississippi 1832 Art. I § 23 Between right to assemble 



Missouri 1820 Art. XIII 

§ 3 

New 

Hampshire 

1792 Pt. I 

Art. XIII 

New Jersey 1776 No Bill of 

Rights 

New York 1821 Art. VII § 

5 

North 

1776 DR Art. 

Carolina 

XVII 

Ohio 1802 Art. VIII 

§ 20 

Pennsylvania 1838 Art. IX § 

21 

Between the power of the 

people to control 

government and alter the 

constitution and freedom of 

religion 

Between protection and 

property rights and 

remedies 

Between no office holding by 

religious persons and 

habeas corpus 

Between tax and right to 

assemble 


and corporal punishment 

under military law 




South 

Carolina 

1790 No 

provision 

Tennessee 1834 Art. I § 26 Between corporal 

punishment of militia and 

citizens under martial law

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house. 

Texas 1836 DR § 14th Between property rights 

and well-regulated militia 

Vermont 1793 Ch. I Art. 

16 

Virginia 1830 No 

provision 

Between power of 

legislature and martial law

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Notes & Comments 

Constitutional Home Rule in Rhode 

Island 

[T]here is perhaps no term in the literature of political 

science or law which is more susceptible to misconception 

and variety of meaning than ‘home rule.’ 1 

Unfortunately, Rhode Island’s Home Rule Amendment has 

spent most of its half century existence nearly dormant. Like all 

home rule amendments, 2 Rhode Island’s Home Rule Amendment 

purports to bestow a certain degree of independent decisionmaking 

authority upon towns and cities within the state. A 

properly drafted home rule amendment affirms and even 

supplements local authority in certain areas, while maintaining 

overriding state authority where appropriate. The next step, of 

course, is the interpretation and implementation of the 

amendment in a way that honors the spirit of local authority over 

local matters and allows for clear resolution of inevitable conflicts 

between local authorities and state authorities. By its very nature 

this second step is primarily undertaken by state courts. When 

properly implemented using clear rules, home rule amendments 

can encourage efficient governance by empowering local 

authorities to make decisions and legislate in areas for which they 

1. Terrance Sandalow, The Limits of Municipal Power Under Home 

Rule: A Role for the Courts, 48 MINN. L. REV. 643, 644 (quoting CHICAGO 

HOME RULE COMM’N, MODERNIZING A CITY GOVERNMENT 193 (1954)). 

2. There are currently forty-two states, including Rhode Island, with 

some form of home rule. SANDRA M. STEVENSON, ANTINEAU ON LOCAL 

GOVERNMENT LAW §21.01 (2d ed. 1997). 

677

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are most properly suited. While the Rhode Island Supreme Court 

was initially hostile towards the notion of home rule, it has slowly 

begun to embrace the implications of home rule in Rhode Island 

by carving out small areas of purely local concern over which 

home rule communities may exercise control locally. I will argue 

that the Rhode Island Supreme Court has made significant but 

slow headway in implementing the Home Rule Amendment, a 

trend which the court ought to continue by propounding clear 

rules and affirming local decisions when appropriate. The 

following discussion will begin with a general overview of the 

development of home rule in the United States in Part I. The focus 

will then turn to the history of home rule in the state of Rhode 

Island in Part II. Finally, in Part III, the discussion will turn to a 

more in-depth discussion of the application of Rhode Island’s 

Home Rule Amendment as it has progressed, and as it is applied 

today. 

I. A BRIEF HISTORY OF HOME RULE IN AMERICA 

The home rule movement in the United States has its roots in 

the political turmoil of the late nineteenth century, when the 

urbanization of the American population gave rise to ever larger 

cities, and of course, all the complex needs that are associated 

with such places. 3 This is not to say, however, that local autonomy 

only arose as a concern in the nineteenth century. In reality, the 

idea that a distant state legislature would get involved in the 

minute details of administering municipalities is impractical on 

its face. Imagine a state legislature that is required to take action 

each and every time a town needs to buy a new fire truck, paint 

crosswalks, or hire a new town employee. The exigencies of day-today 

municipal operations have always required a degree of 

autonomy, and no state legislature would seek to usurp that 

autonomy in its entirety. 4 The practical need for some degree of 

local autonomy does nothing, however, to define the limits of 

either a municipality’s autonomy or the state’s ability to encroach 

upon it. The resulting uncertainty for state and municipal 

3. Michael Monroe Kellogg Sebree, Comment, One Century of 

Constitutional Home Rule: A Progress Report, 64 WASH. L. REV. 155, 156 

(1989). 

4. Sandalow, supra note 1, at 647.

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2006] CONSTITUTIONAL HOME RULE 679 

relations began to come to the forefront as the American economy 

became more industrial and urban populations soared. State 

legislatures became increasingly involved in local decisionmaking, 

and states began to regulate to a degree and in ways they 

simply never had. 5 In the face of this tension between municipal 

autonomy and legislative encroachment, popular and scholarly 

discussion began concerning the limits of state legislative 

authority and the existence, if any, of local initiative. 6 It was 

under these conditions that Missouri became the first state to pass 

a constitutional home rule amendment in 1875. 7 The pressures 

that led Missouri and many states thereafter to adopt home rule 

are best understood in light of the generally accepted wisdom 

concerning the status of municipalities before home rule. 

A. Dillon’s Rule: Municipality As Creature of the State 

By the end of the nineteenth century, a clear rule had 

developed concerning the limits of municipal power. This rule was, 

in fact, a conception of municipal state relations which had been 

long accepted but little noticed. 8 Named for John Dillon, a much 

respected legal scholar 9 who gave the rule its most recognized 

formulation, Dillon’s Rule recognizes the often stated proposition 

that municipalities are mere creatures of the state. The rule as 

stated in Dillon’s Treatise on the Law of Municipal Corporations is 

5. Id. (“It was during the second half of the nineteenth century that 

state legislatures across the country established by usage the power which, 

from the beginning, they had in theory. Legislation descended into regulation 

of the minutest details of municipal government.”). 

6. Sebree, supra note 3, at 156-57. 

7. Sandalow, supra note 1, at 644; Kenneth E. Vanlandingham, 

Municipal Home Rule in the United States, 10 WM. & MARY L. REV. 269, 270 

(1968). 

8. Sebree, supra note 3, at 157. 

9. John Forrest Dillon (1831-1914). Dillon was born in New York, but 

moved to Iowa as a child. He was awarded an M.D. in 1850, but gave up the 

practice of medicine in favor of law. He was elected to the Iowa Supreme 

Court in 1862 on which he sat for eight years, ultimately as chief justice. In 

1869 he was appointed as a circuit judge for the newly created Eighth 

Circuit. In 1879 he resigned from the court and became a professor of law at 

Columbia College. He is most remembered for his monumental TREATISE ON 

THE LAW OF MUNICIPAL CORPORATIONS (1872) which established municipal 

law as a separate field of study. 3 THE AMERICAN COUNCIL OF LEARNED 

SOCIETIES, DICTIONARY OF AMERICAN BIOGRAPHY 311 (Allen Johnson & Dumas 

Malone eds., 1959) (1930).

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as follows: 

It is a general and undisputed proposition of law that a 

municipal corporation possesses, and can exercise, the 

following powers, and no others: First, those granted in 

express words; second, those necessarily or fairly implied 

in, or incident to, the powers expressly granted; third, 

those essential to the declared objects and purposes of the 

corporation – not simply convenient, but indispensable. 10 

Dillon’s Rule is obviously one of strict construction. 11 When 

doubt arises concerning the boundaries of power between a state 

and a municipality, any conflicts will almost certainly be resolved 

in favor of state legislation. 12 The beauty of the rule is that it 

conforms to the common understanding that municipalities are 

inferior creatures of the state, while at the same time it recognizes 

the existence of very limited and derivative local authority in 

decision-making. 13 While the rule traces all municipal authority 

directly back to the state’s plenary legislative powers, it succeeds 

in avoiding an overly simplistic view of this relationship, one 

which might ignore historically entrenched and necessary 

decision-making authority for municipalities. Municipalities can 

and do make decisions on their own initiative, but the authority 

under which such decisions are made is always granted by the 

state, either expressly through legislation creating and regulating 

the municipality, or indirectly as implied by the power expressly 

granted because the decision-making is “indispensable” to the 

purposes and objects of a municipality. In the final analysis, 

Dillon’s Rule boils down to a rule of strict construction concerning 

the power of municipalities to regulate or make decisions 

concerning local matters. 

By the end of the nineteenth century, Dillon’s Rule was 

accepted by nearly every jurisdiction that considered the 

question. 14 The rule’s popularity likely arose from the fact that it 

10. 1 JOHN F. DILLON, TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS 

§ 55 (1872) (emphasis in original). 

11. Willard D. Lorensen, Rethinking the West Virginia Municipal Code of 

1969, 97 W. VA. L. REV. 653, 659 (1995). 

12. Gary T. Schwartz, Reviewing and Revising Dillon’s Rule, 67 CHI.- 

KENT L. REV. 1025 (1991). 

13. Lorensen, supra note 11, at 658-59. 

14. 1 MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 1.40 (3d ed.

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is founded in accepted principles, and is relatively straightforward 

in its application. 15 Any opposing view which points to some 

inherent local autonomy or authority ultimately suffers from 

uncertainty concerning limitations on municipal authority. 16 

Courts almost universally opted for the certainty of the traditional 

rule rather than some uncertain, and perhaps even radical, notion 

of local autonomy. 17 

Not surprisingly, Dillon’s Rule was viewed with unhappy 

suspicion by local politicians and citizens who viewed the 

interference with local decision-making as an invitation for 

distant state legislatures to pass self-serving regulations. 18 

Whether the perception is accurate or not, local politicians felt 

that they had to protect their municipalities, both from usurpation 

of local initiative and from meddling outsiders who were bent on 

filling their own coffers through burdensome regulation. 19 The 

resulting movement, known as the home rule movement, had a 

variety of aspects, both legal and political. 20 The popular political 

home rule movement is beyond the scope of this Comment, except 

to say that the goals and rhetoric of the popular movement have 

often lead to confusion about exactly what is meant by “home rule” 

in the legal context. 21 Home rule, in its constitutional and 

statutory sense, refers simply to a particular system for 

distribution of power between local and state governmental 

entities, and does not necessarily suggest any sudden accretion of 

local authority, despite what might be suggested by the 

exaggerated rhetoric of the early political movement. 22 Perhaps 

the best way to avoid confusion concerning the ultimate legal 

1999). 

15. Lorensen, supra note 11, at 658-59. 

16. David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255, 

2277-79 (2003). 

17. George D. Vaubel, Toward Principles of State Restraint Upon the 

Exercise of Municipal Power in Home Rule, 24 STETSON L. REV. 417, 420-21 

(1995). 

18. Sandalow, supra note 1, at 648. 

19. Id. 

20. Id. 

21. Id. at 651 (“Moreover, failure to keep the distinction between the two 

aspects of home rule clearly in view has resulted in considerable confusion as 

to the extent to which correctives are needed for present home rule 

doctrines.”). 

22. Id. at 664.

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effect of home rule is to carefully consider the dual purposes of 

home rule as it is applied in both the historical and contemporary 

context. 23 

B. The Two Distinct Functions of Home Rule 

Home rule, in the constitutional and statutory context, is 

frequently broken into two clearly distinguishable functions. 24 

First, home rule may involve restrictions on the power of the state 

legislature to legislate concerning local municipal governments. 25 

Second, home rule often involves a grant to municipalities of 

authority to act in certain very limited circumstances without 

prior authorization from the state legislature. 26 The logical 

distinction between how a state legislature may act in relation to 

a municipality, and how a municipality may act on its own, is 

extremely important in clarifying what exactly the effects of home 

rule will be in a particular context. 

The limitation of state power in relation to municipalities 

most commonly takes the form of a limitation on local or special 

legislation. 27 This limitation means that state legislatures must 

limit themselves to regulations that apply equally to all towns and 

cities. 28 The theory is that this will prevent state legislatures from 

regulating within the minutia of daily municipal operations. This, 

of course, does nothing to prevent state legislatures from passing 

very specific regulations which apply alike to all cities and 

23. Id. at 651-52 (“[E]numeration of the areas deemed not to be of 

statewide concern would have been far more meaningful than enumeration of 

subjects intended to be included within the initiative power of 

municipalities.”). 

24. Michele Timmons, Judy Grant, Teri Popp & Heidi Westby, County 

Home Rules Comes to Minnesota, 19 WM. MITCHELL L. REV. 811, 816 (1993). 

Accord STEVENSON, supra note 2, at § 21.02 (stating the two principle ways 

that home rule can be important to local governments). 

25. STEVENSON, supra note 2, at § 21.01. 

26. Id. 


28. The circumstances under which a state legislature is prohibited from 

passing such local legislation vary. For instance, in many states the 

proscription would apply only to cities which have home rule authority. Many 

states, including Rhode Island, require that a municipality pass a home rule 

charter before being granted home rule authority. Until the town or city 

passes such a charter, it will have a statutory charter and is subject to special 

legislation concerning any and all details of its local operation. See, e.g., 

Opinion to the House of Representatives, 87 A.2d 693, 695 (R.I. 1952).

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towns. 29 Such a limitation does function, nonetheless, to provide a 

certain degree of restraint on the power of a state legislature to 

act in relation to any particular municipality. 

Another common home rule limitation on the power of state 

legislatures is a proscription on legislation concerning form of 

municipal government. 30 This limitation presumably prevents a 

state legislature from dictating how a municipality will organize 

itself. 31 Unlike proscriptions on local legislation, limitations on 

interference with municipal form of government cannot be so 

clearly defined. Questions about what exactly constitutes form of 

government are hard to sort out, especially in the context of 

preemption analysis. 32 Therefore, while this protection is often 

included as a limitation on state legislative authority in a home 

rule scheme, it is less significant in terms of practical impact. 

The second function of home rule, to bestow upon 

municipalities the authority to act in certain areas independent of 

state authorization, generally involves some attempt to define 

29. Sandalow, supra note 1, at 649 (quoting McBain, The Law and the 

Practice of Municipal Home Rule). One can imagine any number situations 

where legislation involves details of municipal operation but applies to all 

towns and cities. For example, Rhode Island’s general laws contain a statute 

requiring that tickets issued for non-moving violations in a town or city 

contain “the specific violation charged, the schedules of fines for the violation, 

the time within which the privilege of paying the fine by mail may be 

exercised, and the place to which the fine may be mailed.” R.I. GEN. LAWS § 

45-6.1-7 (2005) (originally passed as a public law in 1965). 

30. See, e.g., R.I. CONST. art. XIII, § 4 (1986). 

31. See STEVENSON, supra note 2, at § 22.06. 

32. It is often difficult to sort out whether a particular function of a 

municipal board or committee is attached to its form of government. In Rhode 

Island, for instance, the problem arises when contracting with certain local 

employees, especially police personnel. It is generally accepted in Rhode 

Island that police personnel ultimately fall under the control of the state 

legislature because they act under the General Assembly’s broad and historic 

police power. Rhode Island courts have therefore generally found that the 

state can divest local boards of authority to regulate and contract with local 

police. Interpretation of conflicts in this fashion has rendered invocations of 

the protection against legislation concerning local form of government 

generally unsuccessful in Rhode Island. See Marro v. Gen. Treasurer of 

Cranston, 273 A.2d 660, 662 (R.I. 1971) (“[T]hey are officers who perform a 

state duty and are subject to full control by the state.”). See also Munroe v. 

East Greenwich, 733 A.2d 703, 711 (R.I. 1999) (“The requirement that each 

city and town repose certain duties in a ‘planning board’ with the function of 

review conferred upon the zoning board of review acting as a board of appeal, 

does not affect the town form of government.”).

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exactly what authority has been granted and the manner in which 

it may be claimed and exercised. 33 Often, vague terms like “local 

matters” 34 or “local affairs” 35 are used to describe the subject 

matter upon which a municipality has decision-making authority. 

Because there is often little useful guidance concerning what 

might be considered a “local” concern, decisions about whether 

particular matters are “local” are often left to the courts. 36 For this 

reason, the degree to which home rule truly broadens local 

authority is often a question which can only be answered in time 

as courts develop rules and categories to tackle the difficult 

question of what kinds of concerns are “local” and therefore within 

the purview of a municipality’s authority. 37 

In addition to granting initiative concerning particular 

matters, constitutions often establish a process by which a town 

may create and pass a home rule charter which spells out in 

greater detail the specific authority which will be exercised by the 

municipality. 38 In this way, home rule becomes an option in which 

a municipality may or may not elect to participate. Once a charter 

is in effect, a municipality’s authority will usually be limited by its 

charter, in much the same way a legislature is limited by the 

constitution of its state. 39 

This system of limitations and empowerments is why a home 

rule system is attractive. The primary benefit of home rule is that 

it allows local government to operate independently in areas 

where it is best suited to innovate. By the same token, home rule 

acts to strictly limit local government action so that it cannot 

affect those outside of the local government. In addition, the 

residents of a town or city have the ability to create a charter 

which can provide limits specific to the needs and desires of a 

33. Sandalow, supra note 1, at 648. See also STEVENSON, supra note 2, at 

§21.02. 

34. See, e.g., R.I. CONST. art. XIII, § 1 (1986) (using the words “in all local 

matters”). 


36. Id. 

37. Id. at 661-63. 

38. See Timmons, supra note 24, at 823-27. 

39. Home rule analysis in any particular instance will often involve 

questions about the scope of authority actually granted by a municipal 

charter. Questions about the process by which a charter will be interpreted 

and expounded are beyond the scope of this Comment.

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particular town. The result, when properly implemented, is more 

efficient government on both the local and state levels. 

From here the discussion turns to the specific Rhode Island 

home rule provisions. Going forward, it is important to keep in 

mind the dual purposes of home rule: to limit legislative authority 

and to define municipal initiative. The distinction between what 

the state may do on the one hand, and what the municipality may 

do on the other, is always significant in attempting to understand 

the effect of home rule in any particular situation. 

II. THE HISTORY OF RHODE ISLAND’S HOME RULE AMENDMENT 

The arrival of home rule in Rhode Island cannot be 

adequately understood without first contemplating Rhode Island’s 

peculiar history, before and after statehood, leading up to the 1951 

passage of the Home Rule Amendment. Rhode Island’s history 

sheds light on the particular meaning of home rule in this state, 

and it breathes a certain life into contemporary interpretation of 

home rule in Rhode Island. To that end, this section will provide a 

short history of the relations between town and state in Rhode 

Island leading up to the passage of the Home Rule Amendment, 

followed by a short introduction to the language of the 

Amendment itself. 

A. Rhode Island’s Peculiar History 

“In Rhode Island the towns came first. They designed the 

colonial government, and altered it several times. . . .” 40 This fact, 

that Rhode Island was initially a loose collection of virtually 

independent towns, makes Rhode Island a particularly suitable 

setting for a discussion on the limits of local authority. This, of 

course, is only part of the story. The Colony of Rhode Island 

underwent a series of political changes as it repeatedly modified 

and changed royal charters, the last of which endured well after 

the revolution and into the nineteenth century. 41 Rhode Island’s 

tumultuous history begins as the story of a colony slowly forming 

40. SYDNEY V. JAMES, THE COLONIAL METAMORPHOSES IN RHODE ISLAND: A 

STUDY OF INSTITUTIONS IN CHANGE 40 (Sheila L. Kemp & Bruce C. Daniels 

eds., 2000). 

41. WILLIAM G. MCLOUGHLIN, RHODE ISLAND: A HISTORY 127 (The States 

and The Nation Series ed., 1986) (1978).

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from a loose association of towns and cities. 42 Ultimately, for 

reasons too complicated to be adequately covered here, a very 

powerful state legislature was formed which has, at times, been 

the subject of controversy and even popular revolt. The resulting 

historical tension in Rhode Island between a powerful state 

legislature and the towns that preceded its creation will be the 

focus of the discussion to follow. 

The Colony of Rhode Island 43 began as five distinct 

settlements. 44 In the beginning, these towns were basically 

independent outposts. 45 These outposts began to rely on one 

another in a variety of ways, but the ultimate desire to form a 

colonial federation was rooted in a desire to combine forces against 

outsiders seeking to annex and control the region. 46 In this way, 

seventeenth-century Rhode Island was actually a group of fiercely 

independent settlements united in defense against a group of 

common enemies. 47 This desire to unite was not, however, 

expressed through any lessened desire on the part of the 

settlements to control their own fates. 48 Fierce independence, 

especially religious, was a defining characteristic of these early 

settlements. 49 It is difficult, perhaps unreasonable, to imagine 

that this historical tradition of independent self-government did 

42. Id. at 3. (“Its formative years, 1636 to 1690, were marked by two 

simultaneous struggles: the search for unity among these diverse settlements 

around Narragansett Bay and the resistance of settlers there to efforts by the 

neighboring colonies to assume authority over their land.”). 

43. McLoughlin says of Roger Williams’ initial arrival in Bristol, “Here, 

on Mount Hope, Williams’ friend Ousamequin (Massasoit), chief of the 

Wampanoags, had his winter headquarters.” MCLOUGHLIN, supra note 41, at 

8. Quite obviously, the short history presented here does not start at the 

beginning of civilization in what is now Rhode Island. That being said, this 

Comment will surely reflect to some degree the solipsistic bent of the 

conquerors’ history. 

44. MCLOUGHLIN, supra note 41, at 3. The settlements were Providence, 

Pocasset (Portsmouth), Newport, Pawtuxet, and Shawomet (Warwick). 

45. JAMES, supra note 40, at 15 (“In the founding years, the original 

towns independently carried on their own disputes according to their own 

dynamics.”). 

46. Id. at 40-41. See also MCLOUGHLIN, supra note 41, at 27-28 (“In order 

to fend off the imperialistic ambitions of these aggressive neighbors, Rhode 

Islanders began to see the necessity of some form of union. And that required 

a charter from the king.”). 

47. JAMES, supra note 40, at 40-41. 

48. Id. 

49. Id.

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not affect the way that Rhode Islanders related to Dillon’s Rule 

and the subsequent home rule response. 

Rhode Island’s first charter was acquired by Roger Williams 

in 1644, and was granted by the English Parliament. 50 It was 

perhaps lucky for Roger Williams that King Charles I had been 

run out of London just a couple of years earlier, leaving Williams 

free to bargain for favorable terms with a sympathetic 

Parliament. 51 The terms of this first charter essentially left 

decisions concerning form of government to the towns 

themselves. 52 In fact, the charter seemed to create a kind of 

federation of towns, relying in large part on government by 

referendum. 53 It is not necessary to delve deeply into the 

mechanics of the government created and repeatedly modified 

under this initial charter, except to say that it was one clearly 

focused on local authority and decision-making. Again, it is hard 

to imagine that this early experience of a colony ruled by towns 

operating in nearly complete independence did not affect the way 

Rhode Islanders thought about Dillon’s Rule and home rule. 54 

Early colonial history in Rhode Island under the charter 

granted in 1644 was tumultuous, which is understandable given 

the fiercely independent and widely varying views of its early 

50. MCLOUGHLIN, supra note 41, at 28. 

51. Id. (“Being himself a Puritan . . . a friend of Oliver Cromwell, Sir 

Henry Vane, John Milton, and other leaders of the Puritan movement, 

Williams had immediate access to power that he would have lacked had the 

king been in charge.”). 

52. JAMES, supra note 40, at 42. 

53. See Newport v. Horton, 41 A. 312, 313 (R.I. 1900). (“The form of 

government adopted under [the 1644] charter was a federation of towns 

rather than a colony. Legislation originated in the towns and the general 

assembly had simply the power of approval or veto. Local self-government 

was preserved to its full extent.”). Consider also James’ description of the 

system of proposing and validating legislation: “A town might propose a new 

law by majority vote. Then the town recorder would send a copy of it to each 

of the other towns to be voted upon. If a majority of the total votes cast 

favored the proposal, it would be declared a law until the next General 

Assembly (court of election), when a general vote on the proposal would be 

taken.” JAMES, supra note 40, at 43. 

54. As an introduction to home rule in Rhode Island, it is not necessarily 

the purpose of this Comment to offer a comprehensive explanation of the 

relationship between Rhode Island’s early history and the meaning and 

interpretation of the Home Rule Amendment, but rather to provide a broad 

view of state/municipal relations in the state.

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inhabitants. 55 Whether it was the weak government formed under 

the early charter, the restoration of Charles II to the throne in 

England, or yet another unknown cause is not clear; whatever the 

reason the colony chose to seek a second charter in 1663. 56 This 

second charter took a form similar to those of the surrounding 

colonies, with a core of magistrates and locally elected deputies 

who, when combined in the General Assembly, wielded a great 

deal of authority. 57 The result on paper was a much more powerful 

central government, but because of local resistance it would be 

many years before there were actual results. 58 Regardless, this 

charter granted in 1663 lasted until a new state government was 

organized under the constitution adopted by the people of Rhode 

Island in 1842. 59 Remarkably, a charter granted by Charles II over 

110 years before the American Revolution was the constituting 

authority of Rhode Island for almost 180 years, lasting sixty-six 

years beyond the end of the Revolution. 

The Charter of 1663, as has already been noted, did not 

immediately give rise to a powerful central government. In fact, 

the colony went through a great deal of turmoil during the forty or 

so years following the acquisition of the Charter of 1663. 60 At the 

end of the seventeenth century and into the early eighteenth 

century, however, the colony of Rhode Island came into its own, 

and during this period the towns slowly lost their autonomous 

influence, while the colonial government began to centralize its 

power by moving more and more towards the kind of powerful 

General Assembly that was anticipated by the Charter of 1663. 61 

55. JAMES, supra note 40, at 53-54. 

56. Id. at 48-49. It would certainly have been desirable to seek the 

blessing of Charles II, especially considering the tremendous border tensions 

during this time. The map on page 41 of McLoughlin’s Rhode Island: A 

History is a good visual aid in understanding the magnitude of the various 

disputes. 

57. See JAMES, supra note 40, at 49-50. 

58. For an excellent discussion of the factors concerning early colonial 

ineffectiveness see the section in James’ history concerning the period right 

after the acquisition of the charter in 1663 at pages 53-63. 

59. See Providence v. Moulton, 160 A. 75, 77-78 (R.I. 1932). 

60. JAMES, supra note 40, at 112. 

61. Id. It seems relatively clear that the need for centralized authority to 

regulate commerce was at the heart of this change. James says of the central 

government: “[It] was the star performer. It recovered after 1695 and soon 

raced ahead. . . . It truly began to exercise the powers assigned to it by the 

charter. . . .” Id. James goes on to say of the town governments that “[t]heir

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It continued to be the case at the beginning of the eighteenth 

century that, as Sydney James wrote in his history of Rhode 

Island institutions, “[c]entralized authority rested on consent 

rather than force.” 62 In other words, the General Assembly had 

begun to wrest control from the towns, but it could do so only in 

limited ways that would avoid upsetting the delicate balance that 

had arisen between the towns and the colonial government. 63 It is 

especially interesting to note that it was during this period that 

the General Assembly began to grant town charters, which the 

towns claimed could not be infringed upon without a legal 

proceeding. 64 At the same time, the towns began to recognize their 

status in relationship to the central authority, marking the end of 

a period of autonomous towns and the beginning of a more unified 

centralized, government while the economy became more focused 

on commerce and trade. 65 

The period from the Revolution into the nineteenth century 

represents a period of sudden economic prosperity in Rhode 

Island, coupled with extremely slow social and political change. 66 

The result was a growing disparity between the rights of wealthier 

land owners and those of poor and more recently arrived 

immigrants. 67 These pressures, especially those associated with 

the limited franchise for those newly arrived, ultimately led to a 

popular uprising commonly referred to as Dorr’s Rebellion. 68 

business fell increasingly under regulation by colonial law, they stressed 

procedural formality more than before, and they began to act more like 

administrative arms of the central government and less like agencies of 

communities.” Id. at 112-13. 

62. Id. at 131. 

63. Id. 

64. Id. (“This concept of privilege, while a product of views about a 

hierarchy of authority, served as a barrier to unfettered central power.”). It is 

equally interesting that these early charters often contain expressions that 

mirror the later formulation of Dillon’s Rule. For example, the charter 

granted during this period to Newport gave the freemen of that town the 

authority to act on “‘prudential affairs in passing acts and orders for the duly 

governing affairs only properly needful and necessary for said town, and 

proper and allowable for said town.’” Id. at 131 (emphasis added). 

65. JAMES, supra note 40, at 68-69. See also MCLOUGHLIN, supra note 41, 

at 50-51. 

66. MCLOUGHLIN, supra note 41, at 109. 

67. Id. at 109-10. 

68. Id. at 126-28. The Dorr Rebellion was the culmination of a myriad of 

historical factors resulting largely from the preservation of an antiquated,

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Thomas Dorr’s 69 attempt to supplant the then-government of 

Rhode Island with a newly constituted government was 

unsuccessful, but popular pressure ultimately resulted in the 

adoption of a state constitution and the formation of a state 

government much like the one currently in place in Rhode 

Island. 70 The power of the General Assembly by this period was 

great and the passage of the constitution in 1842 did not 

necessarily result in a great limitation on that power. This is the 

most significant aspect of this period of history for our purposes, 

inequitable, and highly centralized political system. This political system 

combined with rampant xenophobia would produce inevitable violent conflict. 

An editorial piece from the Providence Journal authored by Henry Anthony 

and William Goddard on the eve of a constitutional referendum gives a sense 

of the times: “Now is the time to choose between these two systems. Where 

will you place the great conservative check in our government With 

foreigners responsible only to their priests, or with intelligent Rhode Island 

Farmers” Patrick T. Conley, The Dorr Rebellion and American 

Constitutional Theory: Popular Constituent Sovereignty, Political Questions, 

and Luther v. Borden, in LIBERTY AND JUSTICE: A HISTORY OF LAW AND 

LAWYERS IN RHODE ISLAND, 1636-1998, 244, 251 (Patrick T. Conley ed., 1998). 

69. Thomas Wilson Dorr (1805-1854). Best known as the leader of the 

“Dorr Rebellion,” Dorr graduated from Harvard second in his class before 

studying law in New York. Dorr was a state legislator and state Democratic 

Party chairman before becoming governor under the so-called “People’s 

Constitution.” Dorr favored a system of “free suffrage” which would not 

withhold the vote from foreign-born residents of the state. When Democrats 

regained control of the General Assembly in 1935 for the first time in eightyone 

years, Governor Green said this change was inspired by “the spiritual 

presence of the patron saint of the Democratic Party in Rhode Island – 

Thomas Wilson Dorr!” Patrick T. Conley, Attorney Thomas Dorr: Rhode 

Island’s Foremost Political Reformer, in LIBERTY AND JUSTICE: A HISTORY OF 

LAW AND LAWYERS IN RHODE ISLAND, 1636-1998, supra note 68, at 239, 241. 

70. It is interesting to note that much of the controversy concerning 

Dorr’s Rebellion seems to have been associated with a feeling that the 

Charter of 1663 was deeply undemocratic. In a much studied document 

known as “Burke’s Report to the House of Representatives,” that charter is 

uniformly condemned: “It invested all power in the grantees, and clothed 

them with exclusive political as well as corporate privileges and authority; in 

short, it abrogated the democratic government established by the charter of 

1643, and created an OLIGARCHY in its stead as pure in its oligarchic 

characteristics as any which have existed in the States of Greece, or the 

misnamed Italian republics of later times. And such has been the government 

of Rhode Island in substance, whatever may have been its ostensible form, 

from the acceptance of the charter of Charles II to its final death and burial 

in the popular movements of 1842. . . .” H.R. REP. NO. 546, at 8 (1844) 

(emphasis in original).

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namely the General Assembly’s greatly centralized authority. 71 

The emphasis on Rhode Island’s general history leading up to 

Dorr’s Rebellion is, in many respects, centrally focused on the 

relationship between town and state authority. At this point in the 

analysis, the focus on home rule is better served by a shift to a 

discussion of the early Rhode Island Supreme Court decisions 

concerning the relationship between municipal and state 

authority. 

B. Pre-Home Rule Cases 

Early decisions concerning state/municipal relations in Rhode 

Island before the passage of the Home Rule Amendment in 1951 

embraced a view which was entirely consistent with Dillon’s Rule. 

A quick look at just a few of those decisions should give an idea of 

how Rhode Island’s history affected the judicial view of 

state/municipal relations, and also just how strict that view 

became. 

One early Rhode Island Supreme Court decision, City of 

Newport v. Horton, 72 is a particularly good example of how colonial 

history in Rhode Island ultimately reinforced a limited 

understanding of local authority. 73 In Horton, the court was asked 

to decide “whether the general assembly has power to create a 

police commission, to be appointed by the governor, which can 

appoint a chief of police.” 74 The City of Newport claimed that 

towns and villages in Rhode Island have a long history of local 

self-government. 75 In analyzing this claim of self-government, the 

court looked to the history of Rhode Island and the progression of 

colonial charters to support the ultimate conclusion that the City 

of Newport has not retained authority over it’s police force. 76 The 

71. The struggle for reform in Rhode Island exemplified a feeling among 

immigrants all over the country that equality would be achieved through 

political self-determination, a sentiment which in turn helped to drive the 

home rule movement in mostly immigrant urban areas. One Irish-American 

newspaper in New York City even said of the reform movement in Rhode 

Island: “It is our own Home Rule question.” Conley, supra note 68, at 253. 

72. 61 A. 759 (R.I. 1905). 

73. 47 A.312 (R.I. 1900). Accord Horton v. Newport, 61 A. 759 (R.I. 1905). 

74. 47 A. at 312. 

75. Id. at 313 (describing petitioners as claiming that local self 

government is “fundamental and historic” in Rhode Island). 

76. Id. at 313-14 (“We do not find that the history of legislation in this

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Horton court, however, did not make any broad claims about what 

local authority in fact might exist, but its reasoning seems to point 

to the existence of at least some degree of local initiative. 77 

Only thirty-two years after the decision in Horton, in City of 

Providence v. Moulton, the court expressed an even more limited, 

perhaps even extreme, view of local autonomy in Rhode Island 

based in large part on the state’s constitutional history. 78 The 

court in Moulton affirmed state legislation creating a “Board of 

Public Safety” for the City of Providence which replaced certain 

locally appointed officials with officials appointed by the 

governor. 79 The court again reviewed the history of Rhode Island 

and came to the somewhat startling conclusion that “cities and 

towns have no inherent right of local government.” 80 The court in 

that case also directly cites Dillon’s Rule, 81 thus completing the 

shift in Rhode Island from a small federation of independent and 

self-governed towns to a state, like most others, in which towns 

are limited entirely by whatever authority the state might choose 

to grant them. 

C. The Passage of the Amendment 

The Home Rule Amendment was one of a small number of 

amendments put forward at the limited constitutional convention 

of 1951. 82 While the political forces that led to the ultimate 

drafting of the amendment are complicated enough to justify a 

State shows that the clause relating to the powers ‘retained by the people’ 

necessarily implies that the General Assembly has no right to pass a law 

affecting a particular town or city.”). 

77. Id. at 314. (“Towns and cities are recognized in the constitution, and 

doubtless they have rights which cannot be infringed. What the full limit and 

scope of those rights may be cannot be determined in the decision of this 

case.”). 

78. 160 A. 75, 75 (R.I. 1932). 

79. Id. at 75-77. 

80. Id. at 78. The court points in large part to the tremendous authority 

that the 1663 charter placed in the state government, but pays little or no 

regard to what actual authority the state wielded under that instrument, or 

the slow progression of state/municipal relations. Id. 

81. Id. at 79. Cf. Nixon v. Malloy, 161 A. 135 (R.I. 1932) (holding that city 

of Central Falls had no authority over its board of canvassers being strictly 

limited by the authority granted by the General Assembly). 

82. Proceedings of the Limited Constitutional Convention of the State of 

Rhode Island (Rhode Island Secretary of State) (1951).

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study in themselves, it is clear that the amendment was popular. 83 

In fact, any minor dissention appearing in the record originated 

with forces complaining that the version of the amendment put 

forth at the convention was not adequate. 84 This suggestion seems 

to have met with little acceptance 85 and the resolution passed 

unanimously with 170 ayes. 86 

The Home Rule Amendment was Article XXVII of the 

amendments to the Rhode Island Constitution until 1986. 87 The 

plenary constitutional convention of 1986 overhauled the thenexisting 

constitution and removed the Home Rule Amendment to 

Article XIII, where it remains today. 88 

D. The Text of Rhode Island’s Home Rule Amendment 

The following is excerpted from the 2005 version of the Rhode 

Island Constitution. 89 Only those sections of most relevance to the 

discussion at hand have been included. 

§ 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. 

83. The motion to pass the resolution pertaining to the Home Rule 

Amendment was seconded by no less than thirteen delegates to the 

convention. Id. at 125-26. 

84. “Mr. Harold R. Smith, Cranston: . . .I sincerely believe that the 

amendment offered by the Governor’s conferees does not go far enough and 

that the people of Rhode Island would like to have a more liberal home rule 

amendment. . .” Id. at 128. The most serious issue of contention appears to 

have been the power of cities to levy and collect taxes. Id. at 130. 

85. Mr. Smith, see supra note 84, seems to have been the butt of some 

humor concerning his passionate views on home rule. “This humor that I 

hear does not bother me. My resolution relative to home rule is a product of 

many, many years of research and study by hundreds of capable, responsible 

people throughout this country.” Id. at 129. 

86. Id. at 131. Apparently Mr. Smith was willing to take what he could 

get. 

87. In re Advisory Opinion to the House of Representatives, 628 A.2d 

537, 538 (R.I. 1993). 

88. Id. 

89. R.I. CONST. art. XIII, §§ 1-11 (1986).

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§ 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. 

§ 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. 

§ 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. 

§ 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

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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. 

§ 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. 

§ 11. Judicial powers unaffected by article 

The judicial powers of the state shall not be diminished 

by the provisions of this article. 

III. APPLICATION OF RHODE ISLAND’S HOME RULE AMENDMENT 

A. Early Decisions Restricting Home Rule Initiative 

The 1951 passage of the Home Rule Amendment in Rhode 

Island was attended shortly thereafter by confusion and concern 

about the ultimate effect of the Amendment. The General 

Assembly was unclear about what authority it retained, what 

authority was granted to home rule municipalities, and ultimately 

what sort of state legislation concerning municipalities would or 

would not be upheld by the courts. 90 The General Assembly almost 

90. It is interesting to note that the General Assembly seems to have 

recognized immediately that the Home Rule Amendment simply could not be 

interpreted without aid from the judiciary because it lacked guidelines as to 

what matters are appropriate for local action. In short order, the Rhode 

Island Supreme Court made the prominent judicial role explicit, “Instead [the 

Home Rule Amendment] leaves to the courts the responsibility of resolving 

the conflicts where the state and municipality have each legislated on the 

same subject matter.” Marro v. Gen. Treasurer of Cranston, 273 A.2d 660,

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immediately propounded questions to the Rhode Island Supreme 

Court in an attempt to clear up uncertainty, and then propounded 

another set of questions to the Supreme Court a year later. 91 

The first Opinion to the House of Representatives 92 was sent to 

the House of Representatives in April of 1952. The questions sent 

to the court, of which there were two, were extremely broad. 93 As 

a result, the advisory opinion is so general that it provides little 

guidance concerning the change wrought by the Amendment. It 

would seem that the General Assembly was so nervous about the 

limits of its authority and the degree to which it had been 

deprived of authority that it simply could not wait for practical 

questions to arise. 

This advisory opinion does, however, serve to reinforce a 

couple of points. First, it emphasizes a clear distinction between 

municipalities before and after they pass a home rule charter, 

making clear that the provisions of the Home Rule Amendment do 

not result in any automatic change in the status of Rhode Island 

municipalities. 94 Second, the opinion makes clear that once a 

home rule charter has been adopted, the General Assembly may 

act in certain areas of local concern only in either of two ways: (1) 

by a general act that applies equally to all towns and cities, or (2) 

662 (R.I. 1971). 

91. Opinion to the House of Representatives, 96 A.2d 627 (R.I. 1953); 

Opinion to the House of Representatives, 87 A.2d 693 (R.I. 1952). 

92. 87 A.2d 693 (R.I. 1952). 

93. 

1. In the light of Article XXVIII of the articles of amendment to the 

constitution of the 

state would it be a valid exercise of the legislative power if the 

general assembly should provide 

(a) for the tenure of office of any employee, elected or appointed, of 

any city or town; 

(b) for the fixing of the time of the holding of any town meeting; 

(c) for the fixing of the time of the beginning and the end of the fiscal 

year of any city or town; 

(d) for the regulation of the use of parking meter devices in any city 

or town 

2. Is a law incorporating a city or town enacted before the adoption 

of Article XXVIII of the articles of amendment to the constitution of 

the state a ‘charter’ subject to the provisions of said Article XXVIII 

Id. at 695. 

94. Id. at 695-96; see also Capone v. Nunes, 132 A.2d 80, 82 (R.I. 1957).

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by a special act directed to a particular town or city which is 

approved by the majority of the qualified electors of that town or 

city. 95 Because the advisory opinion primarily concerned the 

General Assembly’s authority after the Home Rule Amendment, 

the court emphasized limitations on special legislation rather than 

defining what matters will be considered local concerns for the 

purpose of home rule authority. The court emphasized the power 

retained by the General Assembly, noting that the only absolute 

restriction that the Home Rule Amendment places on legislative 

authority is a prohibition on legislation that might affect the form 

of a municipal government. 96 

By April of 1953, the General Assembly was focusing in on the 

reservation of power to the General Assembly concerning 

municipal elections, and the resulting Opinion to the House of 

Representatives further set the tone for early judicial 

interpretation of home rule in Rhode Island. 97 The opinion was in 

response to fifteen questions propounded by the House of 

Representatives, 98 which the court broke into three general 

95. Opinion to the House, 87 A.2d at 696-97. 

96. Id. at 696. 

97. 96 A.2d at 627. 

98. The questions propounded are far too voluminous to be included here 

in their entirety. The drafters apparently forgot the first rule of good writing 

– know thy audience. The following excerpt more than suffices to capture the 

tone: 

1. Are provisions for non-partisan nominations or elections or 

elections by ballots bearing no party designations in a charter duly 

adopted by the qualified electors of a city in accordance with the 

provisions of Article XXVIII of the Amendments to the Constitution, 

in conflict with, repugnant to, or inconsistent with the provisions of 

Section 4 of said Article XXVIII of the Amendments to the 

Constitution reserving to the General Assembly the power to 

legislate in matters not affecting the form of government of any city 

2. Are provisions for non-partisan nominations or elections or 

elections by ballots bearing no party designations in a duly adopted 

charter in conflict with the provisions of Section 7 of Article XXIX of 

the Amendments to the Constitution providing that the General 

Assembly shall have full power to prescribe the manner of 

conducting elections 

3. If either or both of the above questions are answered in the 

affirmative, and such charter provides that if any part thereof is held 

to be unconstitutional, it shall not affect the validity of the 

remainder, are nomination and elections in the city adopting the 

charter to be made and held in accordance with the law applicable

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categories: (1) the validity of any home rule charter requirement 

that town nominations and elections be nonpartisan, (2) the 

validity of any home rule charter provision setting the times for 

holding municipal general elections, and finally (3) the validity of 

a home rule charter provision specifying the number of signatures 

necessary on municipal nominating papers. 99 The court answered 

all three categories of question by affirming the post-home-rule 

plenary power of the General Assembly concerning the conduct of 

all elections, including municipal general elections. 100 The opinion 

based its conclusion on two primary foundations. First, the court 

pointed to the “long history of the general assembly’s exclusive 

authority over the conduct of elections, which was expressly 

reaffirmed by article XXIX of amendments.” 101 Second, the court 

prior to the adoption of the charter 

6. If a duly adopted charter provides for holding municipal general 

elections at times other than those fixed by acts of the General 

Assembly applicable to that city, is such charter provision in 

violation of or inconsistent with the provisions of Section 4 of Article 

XXVIII of the amendments to the Constitution reserving to the 

General Assembly the power to legislate in matters not affecting the 

form of government of any city * * * 

14. Are provisions in a duly adopted charter prescribing criminal 

penalties for violation of prohibitions in said charter in conflict with 

the provisions of Section 4 of Article XXVIII of the Amendments to 

the Constitution reserving in the General Assembly the power to 


15. Are provisions in a duly adopted charter prohibiting a resident of 

that city holding office in or being employed by the State or Federal 

government, except notaries public and members of the militia or 

armed forces, from making any contract with the city or sharing in 

the profits of any person or corporation making any contract with 

the city in conflict with the provisions of 

(a) Section 4 of Article XXVIII of the Amendments to the 

Constitution reserving to the General Assembly the power to 


(b) the privileges and immunities clause of Article XIV of the 

Amendments to the Constitution of the United States 

Id. at 627-29. 

99. Id. at 629. 

100. Id. at 630. 

101. Id. The court will always strictly construe the Home Rule 

Amendment if a conflict arises with any other constitutionally reserved 

authority. See Royal v. Barry, 160 A.2d 572, 575 (R.I. 1960) (“Article XII of 

the constitution expressly and affirmatively reserves to the legislature sole 

responsibility in the field of education and nothing contained in article

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narrowly interpreted any control over elections granted to 

municipalities under the Home Rule Amendment, stating that 

such authority is “expressly limited to ‘the nomination and 

election of a charter commission.’” 102 The reasoning seems to have 

derived in part from a certain deference towards the General 

Assembly’s historic and broad plenary authority, as discussed 

supra in Part IIA. Significantly, the court’s reasoning further 

suggests that Dillon’s Rule, with its strict derivative 

understanding of municipal authority, partially survives in Rhode 

Island’s post-home-rule jurisprudence. 103 This is not to say that 

the 1953 advisory opinion explicitly refers to Dillon’s Rule. 

Rather, it adopts the view that the language in the Amendment 

must be strictly construed to avoid infringing on the reserved 

powers, namely the power to control elections, of the General 

Assembly. 104 While it may be possible to view this opinion as 

narrowly focused on municipal general elections, a cautious and 

restrictive understanding of the Amendment continued to be a 

hallmark of early Rhode Island Supreme Court decisions 

concerning home rule. 

The Rhode Island Supreme Court’s strict limitation on home 

rule power early on is exemplified by the case of Newport 

Amusement Co. v. Maher, 105 in which the court held that home 

rule municipalities do not have even limited licensing authority 

for local businesses. 106 The court in that case ruled on a local 

ordinance in the city of Newport which purported to require that 

all businesses obtain a license from the city before providing coin- 

XXVIII is in derogation thereof.”). 


103. See Wood v. Peckham, 98 A.2d 669, 670 (R.I. 1953) (declaring in the 

same year as the advisory opinion of 1953, “It is declared to be a fundamental 

principle that municipal ordinances are inferior in status and subordinate to 

the laws of the state.”). See also State v. Pascale, 134 A.2d 149, 151-52 (R.I. 

1957) (citing Wood in striking down a conviction for a traffic violation 

differing slightly from the state penalty for the same offense); Bertrand v. Di 

Carlo, 304 A.2d 658, 659-60 (R.I. 1973) (“It is a well-settled rule that cities 

and towns have no power to enact ordinances except those powers from time 

to time delegated to them by the Legislature. And it is a fundamental rule of 

construction that such powers, being delegated, should be strictly 

construed.”). 


105. 166 A.2d 216 (R.I. 1960). 

106. Id. at 218.

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operated juke boxes or games to the public. 107 The court rejected 

the city’s authority to enact this or any licensing regime. Such a 

broad judicially-created prohibition on licensing of local businesses 

by home rule municipalities grew out of an interpretation of 

Rhode Island’s Home Rule Amendment that was significantly 

narrower than that of any other home rule jurisdiction at the 

time. 108 The court in Newport Amusement Co. reasoned that if 

licensing of jukeboxes, or any other kind of licensing, was 

considered to be a local matter for purposes of home rule, then 

“home rule municipalities would be authorized not only to enact 

licensing laws for their localities inconsistent with those enacted 

by the legislature on the same matters for the rest of the state, but 

also to enact such laws whether the legislature had ever done so 

previously on the same subjects or not.” 109 

By employing reasoning that seemed driven by a broad 

misunderstanding of the purpose and effect of home rule, the court 

held that licensing “is the exclusive prerogative of the legislature 

except where it has expressly conferred such power upon a city or 

town.” 110 The court here appeared not to consider the possibility 

that the Home Rule Amendment was in fact intended to confer 

upon municipalities a certain limited ability to enact regulations 

not inconsistent with those enacted by the General Assembly. In 

other words, a municipality might be granted the authority to 

pass its own jukebox licensing ordinances so long as they did not 

interfere with any such provisions already in place under state 

licensing authority. If the General Assembly saw fit to regulate 

jukeboxes, it could subsequently preempt municipal licensing with 

its own state jukebox licensing provisions, an outcome which fits 

107. Id. at 217. 

108. Sandalow, supra note 1, at 684. (“A recent Rhode Island decision 

holds, contrary to every other case in which the issue has been presented, 

that a home rule municipality does not possess licensing power.”) The 

reasoning in Newport Amusement Co. ran counter to generally accepted 

notions of home rule, even as they were expressed by Rhode Islanders. For 

instance, Robert P. Bolan writing for the Bureau of Government Research at 

the University of Rhode Island in the same year as the Newport Amusement 

Co. decision writes that “[t]he legislature of a home rule city is the successor 

to the state legislature in exercising certain powers within its own territory.” 

ROBERT P. BOLAN, FUNDAMENTALS OF HOME RULE 12 (University of Rhode 

Island Bureau of Government Research 1960). 

109. Newport Amusement Co., 166 A.2d at 219. 

110. Id. at 220.

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with both the spirit and the language of the Home Rule 

Amendment. 111 Having missed this possible via media, and out of 

a fear that home rule might allow municipalities to run amok, the 

court in this decision adopts an analysis that strictly limits home 

rule authority to avoid “a grant of plenary power to enact licensing 

laws without regard to the will of the legislature. . . .” 112 Early 

decisions in the vein of Newport Amusement Co. by the Rhode 

Island Supreme Court ushered in a period of very limited 

authority for municipalities under the Rhode Island Home Rule 

Amendment. 

As for the limitations that home rule placed on the General 

Assembly’s power to legislate concerning home rule 

municipalities, it is hard to know exactly why, but the Rhode 

Island Supreme Court did not have many opportunities to take up 

the issue of special legislation in its early home rule decisions. It 

did, on occasion, emphasize that the General Assembly retained 

nearly complete authority to regulate in areas of local concern, so 

long as such legislation was general or specific in nature but 

submitted to the qualified voters of the specific municipality in 

question. 113 Early on, however, the court either did not see fit to, 

or did not have the opportunity to confront special state legislation 

in an area of local concern which did not meet the requirements of 

the Home Rule Amendment. This might be explained, in part, by 

the fact that municipalities had not yet truly come to understand 

the significance of the Home Rule Amendment’s prohibition on 

special legislation, or it might even be that the General Assembly 

was especially cautious about obeying the limits of that 

Amendment. In any case, the majority of home rule cases which 

came before the court up until the late 1980s had the court either 

111. See Section IIIC1 for a discussion of the distinction between home 

rule and preemption analysis. The rule in Newport Amusement Co. stands 

today. See Amico’s Inc. v. Mattos, 789 A.2d 899, 903 (R.I. 2002) (“[T]he 

General Assembly retains exclusive power over the licensing of Rhode Island 

businesses.”). See also Nugent v. East Providence, 238 A.2d 758 (R.I. 1968) 

(holding that East Providence may not license and regulate cable television); 

State v. Krzak, 196 A.2d 417 (R.I. 1964). 

112. Newport Amusement Co., 166 A.2d at 219. 

113. See, e.g., Bertrand v. Di Carlo, 304 A.2d 658, 659-60 (R.I. 1973). 

Accord Providence Lodge No. 3 FOP v. Providence, 730 A.2d 17, 19-20 (R.I. 

1999); Marran v. Baird, 635 A.2d 1174, 1178 (R.I. 1994); Mongony v. 

Bevilacqua, 432 A.2d 661, 664 (R.I. 1981).

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invalidating an action by a municipality as not within that 

municipality’s home rule province, or finding that a law enacted 

by the General Assembly was properly general, thus preempting 

any conflicting municipal ordinances regardless of the validity of 

the ordinance under a home rule charter. 114 

As a result of the Rhode Island Supreme Court’s narrow 

interpretation of home rule and a dearth of cases invalidating 

state legislation on home rule grounds, any commentator looking 

at the status of home rule in Rhode Island before the late 1980s 

would have been hard-pressed to point out exactly how the Home 

Rule Amendment had affected municipal initiative, if at all. It is 

important to note that this does not mean that changes were not 

afoot, or that the growing number of municipalities that chose to 

pass a home rule charter were not exercising their new found 

authority, but rather that the extent of that authority could not 

easily be determined by looking at the case law. 

B. Recent Developments In the Case Law 

The Rhode Island Supreme Court’s attitude towards home 

rule in Rhode Island saw significant development toward a 

broader view of the authority granted to home rule municipalities 

beginning in the late 1980s. In 1989, the court published two 

opinions of significance which made strides in clarifying both the 

limitation on special legislation by the General Assembly and the 

proper status of municipal home rule initiative. Then, a year later, 

the court again invalidated state legislation concerning a home 

rule municipality as failing to meet the requirements under the 

Home Rule Amendment for passage of special legislation. Finally, 

and perhaps most significantly, the court in 1993 issued an 

advisory opinion affirming municipal authority over local voting 

districts that clearly established the existence of meaningful home 

rule initiative under the Amendment. This string of cases, one 

could argue, establishes a limited but significant movement in the 

direction of greater recognition for municipal initiative and away 

from the influence of Dillon’s Rule, as exemplified by earlier home 

rule decisions in Rhode Island. 

The first of these relatively recent decisions, Bruckshaw v. 

114. See supra note 103.

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Paolino, 115 emphasizes the limitation that the Home Rule 

Amendment places on special legislation as well as the existence 

of local concerns over which municipalities may exercise their 

initiative. The underlying dispute in Bruckshaw involved the 

passage of a public law by the General Assembly entitled “An Act 

Relating To the Retirement Of Employees Of The City Of 

Providence,” which purported to allow certain Providence city 

employees to pay into the Providence employee retirement system 

and thereby “buy back credits toward retirement.” 116 The city 

refused to accept applications under this provision, and one of the 

affected employees filed for declaratory relief, hoping to force the 

city to comply with the legislation. 117 The city counterclaimed 

seeking declaratory relief and a finding that the public law was 

invalid, apparently on a theory that it was a violation of the Home 

Rule Amendment. 118 In affirming the city’s victory in the superior 

court, the Rhode Island Supreme Court found both that the 

pension plan was a “local matter” and that the public law 

modifying it was special legislation that had not been submitted to 

the voters of Providence. 119 The court in Bruckshaw therefore held 

that “the 1985 Retirement Act is invalid and unenforceable.” 120 

The decision in Bruckshaw was primarily significant because the 

court addressed the Home Rule Amendment’s prohibition on 

special legislation directly, invalidating an act passed by the 

General Assembly because it was special legislation which 

conflicted with a local home rule ordinance not approved by local 

voters. 121 In addition, while the court did not directly address the 

initiative power of home rule municipalities, it did point out that 

administration of an employee pension plan was at least one “local 

concern” over which a home rule municipality may exercise 

control. 122 The decision in Bruckshaw primarily reinforced a city’s 

power to resist special legislation, but it can also be seen as the 

first in a series of decisions which give teeth to the Home Rule 

115. 557 A.2d 1221, 1223 (R.I. 1989). 

116. Id. at 1222. 

117. Id. 

118. Id. 

119. Id. at 1223. 

120. Id. at 1224. 

121. Id. at 1223. 

122. Id.

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Amendment. 

The second decision in this line of cases, Westerly Residents 

for Thoughtful Development, Inc. v. Brancato, 123 reinforced the 

power of home rule municipalities to act in areas of local concern 

under the Home Rule Amendment. In that case, a citizens’ group 

seeking to prevent expansion of the local sewer system claimed 

that the legislation giving the town authority to expand the sewer 

system was a violation of the non-delegation doctrine and a 

violation of the Home Rule Amendment because the provisions 

were not submitted to the voters of Westerly. 124 The Rhode Island 

Supreme Court turned the argument on its head, holding that the 

Westerly home rule charter itself gave the town the power to 

expand its own sewer district because “[w]hether a sewer line is 

installed on a particular street in the town of Westerly is not of 

concern to all the residents of the State of Rhode Island but is of 

concern to the residents of the town of Westerly.” 125 The court, 

citing Bruckshaw, reasoned that because the regulation of sewer 

lines is a “purely local function,” and because the town of Westerly 

has a valid home rule charter, that “Westerly’s power to expand 

and maintain the sewer system is inherent in its home rule 

charter.” 126 The court simply did not reach the constitutionality of 

the state legislation, which was not necessary to grant Westerly’s 

municipal government authority over the Westerly sewer system 

in the first place. 127 In addition, the court in Brancato gave some 

guidance as to what concerns might be considered purely local by 

noting that such concerns will “directly affect” only the residents 

of the locality in question, which was also true for the municipal 

pension plan in Bruckshaw. 128 The decision in Brancato helps to 

define the boundaries of home rule initiative and to expand upon 

the notion of local concerns employed in Bruckshaw. 

A year later, the court again struck down special legislation in 

McCarthy v. Johnson, 129 in which the General Assembly passed 

legislation extending the notice requirement for a particular 

123. 565 A.2d 1662 (R.I. 1989). 

124. Id. at 1263. 

125. Id. at 1264. 

126. Id. 

127. Id. 

128. Id. 

129. 574 A.2d 1229 (R.I. 1990).

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personal injury claim against the City of Newport. 130 A general 

law applicable to all towns and cities in Rhode Island requires 

that a claimant, in order to preserve a claim against a city, give 

notice to the city within sixty days of the accident. 131 The plaintiff 

in McCarthy, who had been injured by a low-hanging branch in 

the City of Newport, took eighteen months to give notice to the 

city. 132 In response, the General Assembly passed legislation 

specific to McCarthy’s claim allowing her an extended notice 

period. 133 The Rhode Island Supreme Court in McCarthy soundly 

rejected the plaintiff’s argument that extension of notice falls 

under the General Assembly’s unquestioned authority to confer 

jurisdiction, instead finding that the act in question was 

“legislation directed at a single home-rule community which 

benefits a single party.” 134 The court reasoned that the special 

legislation in that case could not be distinguished from the special 

legislation concerning the municipal pension plan in Bruckshaw, 

and was therefore invalid. 135 The decision in McCarthy is 

important because it carries forward the enforcement of the Home 

Rule proscription on special legislation begun in Bruckshaw, and 

it does so strongly: “This court has recognized that 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, we are 

firmly of the opinion that article XIII, section 4, is such a 

limitation.” 136 

The Rhode Island Supreme Court confirmed both the power 

granted to home rule municipalities and the firm limitation that 

the Home Rule Amendment places on special legislation in an 

advisory opinion to the House of Representatives in 1993. 137 The 

130. Id. at 1229-30. 

131. Id. at 1230. 

132. Id. at 1229. 

133. Id. at 1229-30. 

134. Id. at 1232. 

135. Id. at 1231. 

136. Id. at 1232. (Citations Omitted). 

137. In re Advisory Opinion to the House of Representatives, 628 A.2d 

537, 537 (R.I. 1993). This case comes a year after the important decision in 

East Greenwich v. O’Neil discussed infra in Part IIIC2. O’Neil is important in 

developing an analysis of what concerns are local, and so in that sense the 

decision in O’Neil is also recognition of local initiative.

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questions propounded to the court in that case involved a plan by 

the House of Representatives to adjust the local voting districts in 

the town of Lincoln and remove the then current office holders. 138 

The questions propounded actually concerned the 

constitutionality of the proposed legislation under the Fourteenth 

Amendment to the Federal Constitution. 139 The court, however, 

refused to address the constitutionality of the apportionment plan 

under the Federal Constitution, and instead chose to invalidate 

the proposed legislation as a violation of the Home Rule 

Amendment. 140 In so doing, the court cited its decisions in both 

McCarthy and Bruckshaw for the proposition that an act 

pertaining to only one home rule town or city requires the 

approval of a majority of the electors of that city. 141 The proposed 

legislation, the court reasoned, applied only to the town of Lincoln 

and had not been approved by the voters of Lincoln, and therefore 

was invalid. 142 

The court, however, did not stop with the proposed legislation. 

It went on to state that the original act by the General Assembly, 

passed in 1978, that purported to create the then existing voting 

districts was an “unnecessary, meaningless exercise since the 

reapportionment plan was enacted locally.” 143 In other words, the 

municipal voting districts in the town of Lincoln exist by virtue of 

local authority granted under the Home Rule Amendment, and 

any attempt by the General Assembly, past or present, to directly 

interfere with those voting districts would be abortive. 

The court went on to distinguish the issue of reapportionment 

138. The questions were as follows: 

1. Is the proposed amendment regarding the members of the school 

committee and water board violative of section 1 of article XIV of the 

amendments [to] the United States Constitution 

2. Is the proposed amendment regarding the budget board violative 

of section 1 of article XIV of the amendments [to] the United States 

Constitution 

3. Is the proposed amendment regarding the Democratic and 

Republican district committees violative of section 1 of article XIV of 

the amendments [to] the United States Constitution 

Id. at 538. 

139. Id. 

140. Id. 

141. Id. at 539. 

142. Id. 

143. Id.

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from the procedural issues presented in the 1953 advisory opinion, 

holding that local districting is “a matter of local interest reserved 

by article 13, section 2, to the local government.” 144 While the 

General Assembly may control procedural matters, such as the 

dates and times for general municipal elections, special legislation 

concerning apportionment enters into an area where the General 

Assembly “retains no authority.” 145 The court here drew on the 

opinions in McCarthy and Bruckshaw to create a firm boundary 

for the powers of the General Assembly when it comes to special 

legislation. In addition, though this was an advisory opinion to the 

House concerning limitations on its authority, the court also 

strongly affirmed municipal authority over apportionment for 

municipal elections, yet another local concern. 146 

This discussion of cases leading up to and including the 1993 

advisory opinion is not offered as an exhaustive discussion of cases 

concerning home rule during that period, but rather to 

demonstrate a trend towards a more generous acceptance of the 

implications of the Home Rule Amendment for towns and cities in 

Rhode Island. As the court has developed a more nuanced 

understanding of the concept of home rule, and as the case law 

has slowly developed, the court has moved away from the almost 

fearful analysis of Newport Amusement Co. to embrace a limited 

but robust understanding of home rule in Rhode Island. The result 

has not been a complete destruction of the legislature’s authority, 

as it was preserved under Dillon’s Rule, but rather a limited 

redistribution of authority between the state and home rule 

municipalities in a strictly limited number of areas. The next 

section will move from the Rhode Island Supreme Court’s slow 

acceptance of home rule to a general overview of home rule rubric 

as applied by the court today. 

C. Present Day Home Rule Analysis 

The purpose of this section is to consider exactly how the 

Rhode Island Supreme Court goes about analyzing problems and 

conflicts involving home rule powers and limitations. Such 

problems will generally arise in one of two contexts: either (1) 

144. Id. 

145. Id. 

146. Id.

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some third party, such as a local resident or industry opposed to 

local regulation, will challenge a local ordinance as outside of the 

home rule authority of that municipality; 147 or (2) the municipality 

itself or some party negatively affected by state legislation will 

challenge the validity of that legislation claiming that it is 

prohibited under the Home Rule Amendment’s proscription of 

special legislation. In the former circumstance, the question 

concerns the limits of authority granted to home rule communities 

that have adopted a valid home rule charter and in the latter 

circumstance, the question concerns the limitations that the Home 

Rule Amendment places on the General Assembly. Before 

considering the approach that the Rhode Island Supreme Court 

takes in analyzing these two circumstances, an important 

distinction between home rule and preemption must be drawn. 

1. Distinguishing Home Rule and Preemption 

Confusion often arises in Rhode Island between home rule 

analysis and preemption analysis. 148 It is important to highlight 

the relationship between the two concepts to avoid confusion. 

While this comment is not intended as an exhaustive discussion of 

preemption, no discussion of home rule is complete without at 

least some discussion of preemption. 149 Preemption occurs when a 

valid state statute conflicts with a local ordinance. 150 In such a 

circumstance a state statute will preempt the local ordinance, 

rendering it ineffective. 151 In addition, there may be certain areas 

147. This is distinct from the issue of whether a municipality has exceeded 

the authority granted to it under its own home rule charter. A city’s home 

rule charter may, of its own right, place limitations on a municipal 

government. The issue addressed in this section is whether a municipality 

has exceeded the authority granted it by the Home Rule Amendment. A home 

rule charter, of course, cannot grant a municipality powers exceeding those 

granted to it by the Home Rule Amendment, and so a municipality acting 

within the limits of its charter could conceivably still exceed its home rule 

authority. 

148. “The dueling issues of local authority and state preeminence often 

intersect because home rule requires an analysis of whether the issue is of 

local concern, whereas preemption requires an analysis of whether the issue 

is implicitly reserved within the state’s sole domain.” Amico’s v. Mattos, 789 

A.2d 899, 908 (R.I. 2002). 

149. See, e.g., Thomas S. Smith, No Home on the Range for Home Rule, 31 

LAND & WATER L. REV. 791, 800-01 (1996). 

150. Id. at 800. 

151. 56 AM. JUR. 2D Municipal Corporations, Counties, and Other Political

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of regulation which are entirely occupied by the state, and in 

which a municipality may not regulate. This second form of 

preemption, where a state legislature “occupies the field” in a 

particular area of regulation without necessarily stating its 

intention to do so, will be referred to hereinafter as “implied 

preemption.” 152 There are two important distinctions to keep in 

mind concerning the relationship between these two forms of 

preemption and home rule in Rhode Island. 

First, the only absolute limitation on preemption under the 

Home Rule Amendment is that no state legislation may modify a 

municipality’s form of government. 153 Home rule protects local 

ordinances against preemption only in the sense that it renders 

special legislation invalid if it is not in conformity with the 

provisions of the Amendment. 154 The key to home rule, therefore, 

lies in the limitation on the power of the General Assembly to 

legislate, and therefore in the validity of state legislation. Valid 

state legislation will always preempt a conflicting local 

ordinance. 155 

Second, concerning implied preemption, the legislature cannot 

occupy the field in an area of local concern. 156 The two are 

necessarily and mutually exclusive. The flip side of this 

relationship is that a municipal ordinance which is impliedly 

preempted cannot be protected from preemption by the Home Rule 

Amendment. Put simply, a court may decide either (a) that a 

Subdivisions § 111 (2004). 

152. Id. § 113 (discussing “matters of statewide concern” upon which a 

municipality may not legislate). The relationship between home rule and 

preemption is highly complex. For instance, treatises often make general 

statements about the limitations on judicial interpretation in areas of “mixed 

state and local concern,” but such statements are often inapplicable in Rhode 

Island. Compare id. § 114 (“[A]bsent a specific limitation or declaration by the 

legislature to the contrary, [constitutional home rule] is intended to 

diminish . . . [preemption] by a judicial interpretation of an unexpressed 

legislative intent.”), with East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I. 

1992) (“We have long recognized the doctrine of implied pre-emption and do 

not require a clear statement by the Legislature of its intention to pre-empt 

local legislation.”). 

153. R.I. CONST. art. XIII, § 4 (1986). 

154. Judith A. Stoll, Note, Home Rule and the Sherman Act After Boulder: 

Cities Between a Rock and a Hard Place, 49 BROOK. L. REV. 259, 263-65 

(1983). 

155. Id. at 264-65. 

156. East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I. 1992).

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matter is of local concern and thus the state has not occupied the 

field concerning that particular matter, or, in the converse, (b) 

that the state has occupied the field and thus the particular 

matter cannot be of local concern. 157 This relationship is merely a 

function of the definition of “local concern.” Confusion arises 

because the case law does not always keep this distinction clear. 158 

Strictly speaking, a home rule amendment which is impliedly 

preempted was not valid in the first place. Ultimately, it makes 

little difference in the implied preemption context whether we say 

(inaccurately) that a home rule ordinance is preempted because 

the state occupies the field, or if we say (accurately) that the 

ordinance does not regulate a local concern and therefore is 

outside the power granted by the Home Rule Amendment, so long 

as the distinction between preemption and home rule remains 

generally clear. 159 

Combining these two distinctions, it should be clear that 

preemption and home rule often arise in the same context. 160 They 

are not, however, the same kind of inquiry. Preemption concerns 

the supremacy of valid state legislation, while home rule concerns 

a particular constitutional limitation on state legislation in the 

face of constitutionally-created municipal initiative. 161 These are 

important distinctions to keep in mind when considering how 

courts will respond to conflicts between municipal and state 

legislation. 162 

2. Municipal Powers: What Concerns Are Local Concerns 

Home rule analysis concerning the validity of municipal and 

state legislation often begins with the same question: what 

matters are of purely local concern 163 This is partly because 

home rule initiative has been granted to municipalities in areas 

where the General Assembly later chooses to pass some form of 

special legislation. The result is that the analysis of the two issues 

157. Id. 

158. Id. at 111. 

159. Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1261 (1999). 

160. Amico’s v. Mattos, 789 A.2d 899, 908 (R.I. 2002). 

161. Id. 

162. Id. 

163. See id.; accord East Greenwich v. O’Neil, 617 A.2d 104, 109 (R.I. 

1992).

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2006] CONSTITUTIONAL HOME RULE 711 

begins with the same question: Is the challenged legislation 

regulating in an area of concern over which home rule 

municipalities have been granted local initiative 164 In the case of 

municipal regulation, this is really the ultimate question, while in 

the case of challenged state legislation it is one in a series of 

questions. 165 An analysis of the validity of state legislation 

challenged under the Home Rule Amendment has at least one 

remaining step. This is so because special state legislation is valid 

so long as it conforms to the powers retained by the General 

Assembly under the state’s constitution, and because the Home 

Rule Amendment limits, but does not prohibit, special 

legislation. 166 The key is that authority is granted to a 

municipality, either by the constitution or the General Assembly, 

while it is reserved to the General Assembly. 167 This is a 

significant distinction to keep in mind when considering how the 

Supreme Court of Rhode Island is likely to rule on a particular 

home rule conflict. 

The first step, and often the primary concern, in all home rule 

analyses in Rhode Island is the determination of whether a 

particular concern is purely local. As Parts IIA and IIB of this 

Comment make clear, the development of this question in Rhode 

Island has been tentative, if not almost glacial, in its pace. It has 

not been fruitless by any means, however, as the Rhode Island 

Supreme Court has developed rules over time which were finally 

combined into a single analysis in Town of East Greenwich v. 

O’Neil. 168 The underlying dispute in O’Neil concerned a local 

ordinance passed by East Greenwich, a home rule municipality, 

which prohibited the construction of high voltage transmission 

164. See Amico’s, 789 A.2d at 908. 

165. Id. 

166. Id. at 904. 

167. This interpretation might, at first glance, appear to be the same as 

the conclusion reached under Dillon’s Rule. It is similar in so far as it 

reinforces the notion that a municipality is merely a creature of the state. It 

is different, however, because the Home Rule Amendment does grant 

initiative authority to home rule municipalities. Home rule municipalities are 

not limited in their authority by necessity or specific grant, as they would be 

under Dillon’s Rule, but rather limited to an entire class of concerns, namely 

those that are purely local. 

168. 617 A.2d 104 (R.I. 1992).

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lines. 169 The city cited health concerns surrounding 

electromagnetic emissions from high voltage power lines in 

support of the ordinance, which created a three-year moratorium 

on construction of such lines. 170 The Rhode Island Supreme Court 

invalidated the ordinance because regulation of electric 

transmission lines is clearly a field which has been occupied by 

the state legislature. 171 In reaching its decision, the court 

formulated a rubric which I will refer to as the O’Neil test. The 

three-part O’Neil test is intended to “more clearly discern[]” what 

the court refers to as the “local-general equation.” 172 In the words 

of the court, the three steps are as follows: 

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 domain 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. 173 

Each of these steps was derived from general home rule 

principles as they have been interpreted in Rhode Island, and 

each requires further discussion. 174 

The first prong involves the desirability of uniform regulation 

throughout the state in certain limited areas. 175 In many ways, 

this prong was covered by the discussion supra concerning the 

169. Id. at 106. 

170. Id. 



173. Id. (citations omitted). 

174. Interestingly, the Court cites, but then spends little time discussing 

the development of Rhode Island’s case law. In addition, the court only cites a 

treatise in support of the first prong. One reason might lie in the Court’s 

recognition that the case law leading up to O’Neil is confusing, which it 

points out when it states that “the local-general equation may be more 

clearly discerned.” Concern about the clarity of past decisions might well 

explain any reluctance on the Court’s part to discuss previous decisions. Id. 

175. Id.

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distinction between preemption and home rule. 176 In essence, the 

court was merely stating that a local concern cannot be one which 

is occupied by the state. Considering, however, that the court in 

Newport Amusement Co. at the inception of home rule in Rhode 

Island appeared convinced that the state occupied virtually every 

conceivable field of regulation, this is an important prong in home 

rule analysis in Rhode Island. 177 Since O’Neil, the court has been 

circumspect about declaring any particular field to be one in which 

statewide uniformity is desirable; this is despite the fact that the 

court in O’Neil did find that regulation of public utilities was an 

area in which uniform statewide regulation is desirable. 178 

Following O’Neil, most decisions concerning uniform regulation 

have involved relatively clear cases, such as child support 179 or 

regulation of tidal wetlands. 180 In less clear cases, the court has 

generally based its ultimate conclusion on a variety of 

foundations. 181 Ultimately, the court will inquire into the quality 

of the thing being regulated to decide if statewide uniformity is 

especially desirable. 182 For instance, the court is quite likely to 

find that regulation of agriculture to prevent pollution of 

waterways is an area that cannot be effectively regulated without 

statewide uniformity, while the court is unlikely to find that 

effective regulation of parking on municipal streets requires a 

176. See supra Part IIIC1. 

177. Newport Amusement Co. v. Maher, 166 A.2d 216, 219 (R.I. 1960). 

178. See East Greenwich v. Narragansett Electric Co., 651 A.2d 725, 729 

(R.I. 1994) (citing O’Neil for the proposition that public utilities are an area of 

statewide concern). 

179. Duke v. Duke, 675 A.2d 822, 823-24 (R.I. 1996) (“Child support is a 

statewide concern that a municipal ordinance may not impede or frustrate in 

its implementation.”). 

180. Warren, 740 A.2d at 1259 (“Under the public-trust doctrine, ‘the state 

holds title to all land below the high water mark in a proprietary capacity for 

the benefit of the public.’” (citations omitted)). 

181. See generally Marran v. Baird 635 A.2d 1174 (R.I. 1994) (upholding 

state legislation allowing the director of the State Department of 

Administration to appoint a “budget and review commission” to oversee 

municipal financial policy if a town’s bonds are lowered to junk status). 

182. See, e.g., Coastal Recycling v. Connors, 854 A.2d 711, 715 (R.I. 2004) 

(Chief Justice Williams writing for the court in Coastal rejected an argument 

that the state occupied the field of regulation for municipal contracts. “Such 

an interpretation is at odds with the Home Rule amendment of the Rhode 

Island Constitution. . .[t]hus, we must read the towns ordinance in pari 

materia with [state legislation].”

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uniform statewide policy. In between the extremes the court 

would be required to make a case-by-case determination. 

The second prong of the O’Neil test requires the court to look 

at the traditional distribution of power between the state and 

municipal governments, and to give deference to that traditional 

scheme. 183 This prong is essentially a way to avoid sudden change 

in the distribution of power. The O’Neil court cited cases from the 

early years of Rhode Island home rule to support the need for this 

particular prong, the latest one being from 1971, and included the 

1953 advisory opinion to the House. 184 This prong preserves the 

status quo in areas such as licensing and authority over police 

personnel. 185 Regardless of the reasoning in any particular case 

establishing a precedent, the court is apt to preserve the historical 

balance between state and municipal governments, or to at least 

proceed cautiously in changing that balance. The danger, of 

course, is that this particular prong will be used to preserve the 

strictures of Dillon’s Rule based on its historical acceptance. As for 

whether this concern is warranted, only time will tell. 186 

The final prong in the O’Neil test, and the one the court refers 

to as the “most critical,” involves the fundamental limitation of 

home rule authority to a single municipality’s property and 

affairs. 187 This prong stands in opposition to the second prong in 

that it actually recognizes a relatively broad area of authority, 

namely anything that does not affect people outside of the home 

rule town or city. In fact, the court cited three cases in support of 

this prong, all of which come from the later, more generous period 

in the court’s home rule analysis as discussed in Part IIIB. 188 The 

tension between this prong and the second prong might not 

present itself clearly at first glance since the third prong is 

183. East Greenwich v. O’Neil, 617 A.2d 104, 111 (R.I. 1992). 

184. Id. The court cites the following cases: Marro v. Gen. Treasurer of the 

City of Cranston, 273 A.2d 660, 662 (R.I. 1971); Nugent v. East Providence, 

238 A.2d 758, 761-63 (R.I. 1968); Opinion to the House of Representatives, 96 

A.2d 627, 630 (1953). 

185. See, e.g., Marran, 635 A.2d at 1179 (“The aggregate indebtedness of a 

city or town has been historically regulated by statutes of general 

applicability.”). 

186. If Rhode Island’s past is any gauge, only a great deal of time will tell. 

187. O’Neil, 617 A.2d at 111. 

188. Id. The court cited the following cases in support of the third prong: 

McCarthy 574 A.2d at 1231; Brancato, 565 A.2d at 1264; and Bruckshaw, 557 

A.2d at 1223.

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presented in terms of a limitation on the authority of home rule 

municipalities, but the limitation stated in the third prong is 

really just part of the definition of home rule. Of course, a home 

rule municipality may not regulate in a way that affects people 

outside of the home rule community; otherwise the issue would 

not be a local concern by definition. This supposed limitation 

might actually support an expansion of home rule authority, over 

time, by reinforcing the fundamental home rule notion that a 

municipal government has the authority to act on its own 

initiative, so long as such action affects only the residents of that 

home rule community. It is perhaps telling that the court pointed 

to this as the “most critical” prong of the three, especially given 

the cases cited in support of this particular prong. 189 

The establishment of the O’Neil test is by far the most 

significant development in Rhode Island’s recent home rule 

jurisprudence. O’Neil establishes the local-general equation as the 

centerpiece of home rule analysis in Rhode Island, and it provides 

a definite starting point for home rule municipalities in 

determining what the limits of their authority under the Home 

Rule Amendment are likely to be. 190 It also provides a starting 

point for the General Assembly in determining what limitations 

the Home Rule Amendment places on its authority to legislate 

concerning home rule municipalities. 191 The next sub-section will 

discuss determination of the validity of state legislation under the 

Home Rule Amendment. 

3. Restrictions on State Legislation 

As discussed above, the Home Rule Amendment acts as a 

limitation on the General Assembly’s otherwise plenary 

authority. 192 Setting aside for the moment the absolute 

proscription of legislation affecting form of municipal government, 

the validity of state legislation in Rhode Island under the Home 

Rule Amendment depends upon three interrelated factors: (1) the 

status of the municipality, (2) the type of legislation, general or 

specific, and (3) the procedure by which legislation has been 

189. Id. 

190. Id. 

191. Id. 

192. See text accompanying note 121 supra.

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passed. 193 The first of these is a threshold question which 

determines whether the Home Rule Amendment limitations are 

relevant, the second is very much related to the local-general 

equation raised in the previous section, and the final factor will 

only be relevant if the legislation in question is special legislation 

relating to a home rule community. The following discussion will 

therefore address each factor in order. 

The Home Rule Amendment only restricts state legislation as 

it relates to towns and cities which have adopted a home rule 

charter, referred to in this comment as “home rule 

municipalities.” 194 The Home Rule Amendment places no 

restrictions on special legislation relating to municipalities which 

have no home rule charter. 195 These communities are still subject 

to the will of the legislature and receive all their authority from 

the General Assembly. 196 Dillon’s Rule, with its strict 

interpretation of municipal authority, applies in full force to these 

communities. 197 

The second factor involves determining whether a particular 

instance of legislation is to be considered special or general. This 

question is of great significance, since the state retains nearly 

complete power to legislate by general legislation. 198 The Home 

Rule Amendment does not restrict this power, except as it relates 

to form of government. 199 The process for determining whether 

193. Opinion to the House of Representatives, 87 A.2d 693, 695-96 (R.I. 

1952). 

194. See Capone v. Nunes, 132 A.2d 80, 82 (R.I. 1957). Accord Opinion to 

the House, 87 A.2d at 695 (“Generally speaking, unless a charter is submitted 

to and is adopted by the qualified electors of a city or town in accordance with 

the provisions of the home rule amendment, article XXXVIII, such city or 

town retains the same status relative to the general assembly as that which 

it had prior to the adoption of said amendment.”). 

195. See Capone, 132 A.2d at 82. 

196. See id. 

197. See id. 

198. See Mongony v. Bevilacqua, 432 A.2d 661, 664 (R.I. 1981) (“[A] state 

law of general character and statewide application is paramount to any local 

or municipal ordinance inconsistent therewith.”). It again becomes clear why 

the distinction between preemption and home rule becomes difficult. This 

proposition concerning a general law of statewide character is perhaps more 

significant in terms of preemption, but it also holds a kernel of truth for home 

rule analysis in that preemption applies despite the existence of home rule. 

In other words, the Home Rule Amendment does not prevent state legislation 

from preempting valid home rule ordinances in this instance. 

199. Opinion to the House of Representatives, 87 A.2d 693, 695-96 (R.I.

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legislation is general or specific is basically two fold. First, 

legislation will usually only be considered special legislation if it 

actually encroaches on an area of purely local concern in a 

particular home rule community. 200 The basic idea is that the 

Home Rule Amendment only grants local authority in areas of 

purely local concern, and, as such, the Amendment is not 

implicated if the state has not interfered in such concerns. 201 

Second, legislation regulating in an area that might otherwise be 

of purely local concern will not be considered special legislation if 

it “shall apply alike to all cities and towns.” 202 This determination 

is relatively straightforward: either the legislation in question 

affects all towns and cities alike, or it does not. Legislation will 

therefore be considered special legislation only if it regulates in an 

area of purely local concern and does not apply alike to all towns 

and cities in Rhode Island. 203 If, at the end of this analysis, the 

legislation in question is general and does not affect form of 

government, then it is valid. 

The final factor in determining the validity of state legislation 

under the Home Rule Amendment will only be reached if the 

legislation is special legislation under the second factor. If it is 

special legislation, it can still be valid if it is submitted to and 

ratified by a majority of the qualified electors of the town or city to 

which it applies. 204 This provision allows the General Assembly to 

act as a catalyst for local initiatives, forcing a vote on issues on 

which the local government has not acted. This device is most 

frequently employed to ratify special legislation waiving the state 

legislative cap on damages in tort suits against municipalities, 

1952). 

200. See, e.g., Royal v. Barry, 160 A.2d 572, 575-76 (R.I. 1960). 

201. Id. 

202. Bruckshaw v. Paolino, 557 A.2d 1221, 1223 (R.I. 1989) (quoting 

article XIII section 4 of the Rhode Island Constitution). 

203. It is worth noting that the relationship between municipal home rule 

authority and the limitations on state legislation is not symmetrical. Home 

rule never grants a Rhode Island municipality the authority to pass 

ordinances in areas of statewide concern, while the General Assembly can 

legislate in areas of purely local concern, so long as it does so with a general 

law of uniform statewide application. This is yet another example of the close 

relationship between home rule and preemption in Rhode Island. 

204. See, e.g., McCarthy v. Johnson, 574 A.2d 1229, 1232 (R.I. 1990). 

Accord Bruckshaw v. Paolino, 557 A.2d 1221, 1223 (R.I. 1989); Opinion to the 

House, 87 A.2d at 696.

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and it has been employed with very limited success. 205 

IV. CONCLUSION 

Rhode Island’s courts and legislatures have been slow to 

recognize the benefits in efficient and effective government that 

the Home Rule Amendment has to offer. This is not surprising 

when one considers the power that such a historically unified and 

powerful General Assembly stands to lose. Yet the overwhelming 

logic of allowing local authorities the ability to make decisions 

affecting only their constituents cannot be ignored. This is 

probably why Rhode Island’s half-century experiment with 

constitutional home rule has been marked by reluctant but 

persistent acceptance of local initiative. Beginning with near 

rejection of home rule in Newport Amusement Co. and progressing 

to the court’s much broader conception of home rule in O’Neil, the 

Rhode Island Supreme Court has begun to develop an analysis 

which can allow for the realization of much broader municipal 

authority. If this trend is to continue, the Rhode Island Supreme 

Court must continue to act as an independent arbiter in clashes 

between state and local power to ensure that the spirit of home 

rule is not hobbled by the desire to preserve historically 

entrenched power. 206 

205. See, e.g., McCarthy, 574 A.2d at 1232. 

206. A recent supreme court decision in a case challenging authority 

granted by a charter to a town council to reject or accept decisions made 

under state legislation, suggests that home rule will continue its slow 

progression forward using the O’Neil test as a guide: 

Coastal contends the Legislature intended to occupy the field by 

creating a uniform system to award municipal contracts. Such an 

interpretation strips town councils throughout the state of any 

opportunity to review major decisions that will cost their 

municipality a significant amount of money. Such an interpretation 

is at odds with the Home Rule amendment of the Rhode Island 

Constitution, which confers “the right of self government in all local 

matters.” R.I. Const. art. 13, sec. 1. Nothing in [the law in question] 

proscribes the town councils from reviewing a decision made by a 

purchasing agent in accordance with the statute. Thus, we must 

read the town’s ordinance and charter in pari materia with [that 

law]. 

Coastal Recycling v. Connors, 854 A.2d 711, 715 (R.I. 2004). See also supra 

note 182.

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Taking a broader historical view, this slow progression of 

home rule is probably just a reluctant recognition of a persistent 

fact of Rhode Island’s history, that the towns came first. 

Terrence P. Haas ∗ 

∗ 

Juris Doctor Candidate, Roger Williams University School of Law; B.A., 

Purdue University (Philosophy). I am most grateful to my family, especially 

my wife Megan and my son James for their tireless support. Thank you also 

to Professor Robert B. Kent for encouraging a doubtful neophyte and the 

attorneys at the City of Providence Law Department for initially planting the 

idea for this Comment.

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5/15/2006 6:46 PM 

A Threat to the Security of Private 

Property Rights: 

Kelo v. City of New London and a 

Recommendation to the 

Supreme Court of Rhode Island 

I. INTRODUCTION 

In Kelo v. City of New London, the United States Supreme 

Court held that the taking of private property for economic 

development purposes qualifies as a “public use” under the 

Takings Clause of the Fifth Amendment to the United States 

Constitution. 1 This decision has spawned widespread debate. 2 On 

one side are the property rights’ activists who are fighting to make 

it more difficult for state and local governments to use eminent 

domain to take private homes for the purpose of transferring the 

property into the hands of another private person or entity. 3 On 

the other side are government officials, planners, urban renewal 

experts, and development firms who believe that eminent domain 

is a necessary tool in the struggle to instill prosperity in the face of 

severe economic decline. 4 

1. Kelo v. City of New London, 125 S. Ct. 2655, 2668 (2005). The 

Supreme Court upheld the 2004 decision of the Supreme Court of 

Connecticut. Kelo v. City of New London, 843 A.2d 500, 520 (Conn. 2004), 

aff’d, 125 S. Ct. 2655, 2669 (2005). 

2. See Power Lunch (CNBC Business News television broadcast Oct. 12, 

2005) (Bill Griffeth commenting that the Kelo decision has created 

controversy across the country); Castle Coalition, http://castlecoalition.org/ 

legislation/index.html (last visited Apr. 17, 2006), [hereinafter Castle 

Coalition] (commenting that since Kelo, eminent domain has become a hot 

topic nationwide and legislatures everywhere are examining eminent domain 

laws to insure what happened in Kelo will not happen again). 

3. Warren Richey, Battle Over Property Rights Goes On, Despite Ruling, 

CHRISTIAN SCIENCE MONITOR, Jan. 4, 2006, at 2. 

4. Id. 

721

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Opponents of the Kelo decision argue that its acceptance of 

the use of eminent domain for economic development - to increase 

tax revenues and create jobs - broadly expanded existing federal 

Takings Clause jurisprudence. 5 The government need only 

identify a more profitable use for property in order to justify the 

exercise of eminent domain. 6 Because office buildings will almost 

always produce more jobs and tax revenue than any private 

residence or small private business, any home or business can be 

taken under the guise of economic development. 7 Private property 

owners are left extremely vulnerable to eminent domain misuse. 

In the wake of the Kelo decision, the question remains: if the 

government, state or federal, can take private property under the 

vague assertion of economic development, are private property 

owners left with any protection under the Takings Clause 

Legislatures at the federal 8 and state 9 levels have begun to revisit 

eminent domain laws to ensure that their citizens are afforded 

more protection from governmental takings than that afforded by 

the Kelo decision. 10 

5. Kelo, 125 S. Ct. at 2675 (O’Conner, J., dissenting). 

6. Petition for Writ of Certiorari at *6, Kelo v. City of New London, 125 

S. Ct. 2655 (2005) (No. 04-108), 2004 WL 1659558. 

7. Id. at *6-*7. 

8. Recently, the House of Representatives passed a bill declining to 

extend economic development funds for two years to any state or local 

government which employs eminent domain for private commercial 

development. Private Property Protection Act, H.R. 3135, 109th Cong. (2006), 

available at http://www.castlecoalition.org/media/legislation/11_03_05pr 

.shtml. In addition, the bill expressly forbids the federal government from 

exercising its eminent domain power for private development. Id. 

9. For example, Bradley Jones, Massachusetts State Representative, 

proposed that “the taking of private property by right of eminent domain for 

the sole purpose of economic development, where one private individual 

benefits at the expense of another, is contrary to. . . well-established public 

policy. Except. . . to prevent the development of or to eliminate dilapidated or 

blighted open areas.” In New York, State Senator John DeFrancisco 

proposed a constitutional amendment that would only allow private property 

to be taken solely for the “possession, occupation, or enjoyment of land by the 

public at large or by public agencies.” Illinois State Representative Eileen 

Lyons introduced legislation that requires eminent domain power to be used 

exclusively for a “qualified public use.” Use of the eminent domain power “for 

private ownership or control, including for economic development” would be 

expressly prohibited. Castle Coalition, http://maps.castlecoalition.org/ 

legislation/.html (last visited Apr. 17, 2006) (Under Illinois, Massachusetts, 

and New York headings). 

10. See generally Castle Coalition, http://www.castlecoalition.org/

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5/15/2006 6:46 PM 

2006] THREAT TO PRIVATE PROPERTY RIGHTS 723 

Members of the Rhode Island legislature are among those 

urging greater protection of individual property rights. 11 State 

Representative Victor Moffitt introduced Rhode Island House Bill 

6636, “urg[ing] the United States Congress to take immediate 

action to amend the Constitution in order to more fully protect 

and guarantee private property rights and to nullify the Kelo 

decision.” 12 This bill was adopted by the House. 13 In addition, 

State Senator James Sheehan expressed his approval of a decision 

to “amend the Constitution in lieu of the recent Supreme Court 

decision on eminent domain.” 14 

Further, Governor Donald Carcieri, in outlining his plans for 

2006, has stated that he has “never been a fan” of “taking 

someone’s property” and intends to consider legislation that would 

restrict the use of the eminent domain power. 15 In 2001, the 

Rhode Island Economic Development Corporation (RI EDC) 

exercised its eminent domain power to condemn forty acres of 

private property in Smithfield, Rhode Island so that the Fidelity 

Corporation could expand its existing facility. 16 Governor 

Carcieri, who does not believe in the practice of “tak[ing] people’s 

property and then say[ing], ‘I know what I’m going to do is better 

than what you are going to do with it,’” has asked the RI EDC to 

revisit the issue. 17 They are expected to vote to terminate the 

legislation/federal/index.html (last visited Apr. 17, 2006) (both the U.S. 

Senate and House of Representatives have introduced legislation on proposed 

federal response to Kelo); Castle Coalition, http://maps.castlecoalition.org/ 

legislation.html (last visited Apr. 17, 2006) (listing current proposed state 

legislation urging the restriction of eminent domain for economic 

development. States listed include: Alabama, Alaska, Arkansas, California, 

Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, 

Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, 

Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, 

New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode 

Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, West 

Virginia, Wisconsin). 

11. Castle Coalition, http://maps.castlecoalition.org/legislation.html (last 

visited Apr. 17, 2006) (under Rhode Island heading). 

12. Id. (2005 RI H.B. 6636). 

13. Id. 

14. Id. (2005 RI S.B. 1237). 

15. Andrea L. Stape, Governor’s agenda: Reduce tax credit, limit seizings, 

THE PROVIDENCE J., Jan. 6, 2006. 

16. Id. 

17. Id.

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practice of using eminent domain to take private property from A 

and give it to private entity B. 18 In response to the Supreme 

Court’s decision in Kelo, Carcieri has said, “just because the 

Supreme Court says its ok, does not mean the state should be 

doing it.” 19 However, while these proposals indicate an attempt to 

better protect the private property owners of Rhode Island, 

without firm legislation in place, the decision ultimately lies with 

the Supreme Court of Rhode Island. 

This Comment examines the takings provision in the Rhode 

Island Constitution and urges the Supreme Court of Rhode Island, 

should such an opportunity arise, to decline extending eminent 

domain power to include the taking of private property for 

economic development. Part II of this Comment provides an 

overview of the Kelo v. City of New London decision and details 

the facts and holding of the case. Part III employs Philip Bobbitt’s 

six approaches to constitutional construction 20 to examine the 

Rhode Island Constitution’s takings clause, article I, section 16. 

Next, Part III proceeds to explore the history and doctrine of 

Rhode Island’s takings clause and the occasions in which the 

Supreme Court of Rhode Island has typically departed from 

United States Supreme Court rulings. Finally, Part III discusses 

the various policy arguments and ethical implications of the Kelo 

decision. 

Part IV sums up the arguments advanced in Part III and 

urges the Supreme Court of Rhode Island to depart from the 

United States Supreme Court decision in Kelo v. City of New 

London and interpret the Rhode Island Constitution in a manner 

that provides the citizens of Rhode Island a greater level of 

protection with regard to their fundamental private property 

rights. 

II. BACKGROUND: KELO V. CITY OF NEW LONDON 

A. Factual Background of Kelo 

The New London Development Corporation (NLDC), a private 

18. Id. 

19. Id. 

20. Philip Bobbitt, Constitutional Fate: The Theory of the Constitution 

(1982).

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nonprofit economic development corporation, was created in 1978 

to help the City of New London, Connecticut (the City) put 

together an economic development plan. 21 Over the years, the city 

had fallen into economic decline. 22 In January, 2000 the City 

turned its attention to the Fort Trumbull neighborhood, a 

peninsula of land along the Thames River. 23 The unemployment 

rate was almost two times that of the rest of the state and its 

population had reached a near record low. 24 These conditions 

caused officials to pursue the Fort Trumbull area in an effort to 

turn the city around. 25 

The troubled Fort Trumbull area is also home to many people, 

including Wilhelmina Dery 26 and Susette Kelo. 27 Together, the 

Dery’s, Mrs. Kelo, and six other homeowners own fifteen 

properties in the Fort Trumbull neighborhood. 28 Several of the 

homeowners have lived in their homes and raised their families 

there for many decades. 29 Others have put an extensive amount of 

time and money into developing their properties. 30 All are 

genuinely attached to their homes. 31 

In February of 1998, Pfizer, Inc. declared its intention to build 

a global research facility on the New London Mills site located 

directly adjacent to the Fort Trumbull neighborhood. 32 The City 

officially conveyed the New London Mills site to Pfizer in June 

1998 with the goal to complement the Pfizer facility with the 

development plan prepared by the NLDC for the Fort Trumbull 

21. Kelo v. City of New London, 843 A.2d 500, 508 (Conn. 2004). 

22. Kelo v. City of New London, 125 S. Ct. 2655, 2658 (2005). 

23. Kelo, 843 A.2d at 508; Petition for Writ of Certiorari, supra note 6, at 

*1-*2. 

24. Kelo, 125 S.Ct. at 2658. 

25. Id. at 2658-59. 

26. Petition for Writ of Certiorari, supra note 6, at *1-*2. In 1918, Mrs. 

Dery was born in the house that she currently shares with her husband of 

fifty years and the rest of her family. Id. 

27. Ms. Kelo is another Fort Trumball neighborhood homeowner, who 

has lived in the area since 1997 and has made extensive improvements to the 

property. Kelo, 125 S. Ct. at 2660. She values the location of her home for the 

view and close proximity to the water. Id. 

28. Id. 

29. Kelo, 843 A.2d at 511. 

30. Id. 

31. Id. 

32. Id. at 508.

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neighborhood. 33 In addition to capitalizing on the arrival of the 

new Pfizer facility, the NLDC hoped to create jobs, generate tax 

revenue, and help “build momentum” for the city’s revitalization 

movement. 34 

The development plan for Fort Trumbull encompasses about 

ninety acres and is divided into seven parcels, each to 

accommodate different projects. 35 Two of the parcels involved 

affect the homeowners in this case. 36 Parcel 3 is located near the 

new Pfizer building and is slated for private research and 

development office space and parking, and Parcel 4A is slated for 

park support to provide parking or retail services for the nearby 

park. 37 

While the NLDC would own the land in the development site, 

private developers would occupy the area through lease 

agreements with the NLDC. 38 At the time of trial, the NLDC was 

involved in negotiations with one such private developer, Corcoran 

Jennison, for a ninety-nine-year-lease for parcels 1, 2, and 3 at a 

nominal $1.00 per year. 39 Corcoran Jennison would then develop 

the parcels and choose tenants for spaces. 40 

The City and the NLDC want to use eminent domain to take 

the family homes of these individuals to make way for private 

business development, 41 and the United States Supreme Court 

has ruled that this is a justified use of the City’s eminent domain 

power. 42 There is no indication that any of these homes are 

blighted or in poor condition, but because they happen to be 

located in the development area, the City has been given the 

authority to take their homes. 43 

B. Procedural History 

In 2005, Susette Kelo and other affected landowners in the 

33. Id. at 508-09. 

34. Id. at 509. 

35. Petition for Writ of Certiorari, supra note 6, at *2. 

36. Id. 

37. Kelo, 843 A.2d at 509. 

38. Petition for Writ of Certiorari, supra note 6, at *3. 

39. Id. 

40. Id. 

41. Id. at *2. 


43. Id.

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Fort Trumbull neighborhood brought suit in the Superior Court of 

Connecticut, seeking a permanent restraining order to halt the 

implementation of the NLDC plan, and the resultant taking of 

their homes. The court granted the permanent restraining order 

banning the taking of the properties for park or marina support, 

but denied relief to the landowners with property in the area 

designated for office space. 44 On appeal to the Supreme Court of 

Connecticut, the majority held that all of the takings were a valid 

exercise of the city’s eminent domain power. 45 The dissent, signed 

by three judges, would have enforced a heightened level of judicial 

review for economic development takings and would have declared 

the takings unconstitutional “because the City had failed to 

adduce clear and convincing evidence that the economic benefits of 

the plan would in fact come to pass.” 46 The United States 

Supreme Court granted certiorari to determine, “whether a city’s 

decision to take property for the purpose of economic development 

satisfies the ‘public use’ requirement of the Fifth Amendment.” 47 

C. The Decision 

Writing for the majority, Justice Stevens, relying on Berman 

v. Parker, stressed the Court’s “longstanding policy of deference to 

legislative judgments in this field,” 48 so long as the “legislature’s 

purpose is legitimate and its means are not irrational.” 49 Thus, 

the Court, while recognizing that the City was not faced with the 

need to remove blight, nevertheless concluded that the City’s 

44. Id. at 2661. 

45. Id. 

46. Id. 

47. Id. 

48. Id. at 2663 (citing Berman v. Parker, 348 U.S. 26 (1954)). In Berman, 

the Court upheld a redevelopment plan targeting a blighted area of 

Washington D.C., in which most of the housing was beyond repair. Id. While 

some of the land would be used for streets, schools, and other public facilities, 

a portion would be leased or sold to private parties for the purpose of 

redevelopment. Id. Berman’s deferential approach was reaffirmed in Hawaii 

Hous. Auth. v. Midkiff, where the Court concluded that the State’s purpose of 

eliminating the “social and economic evils of a land oligopoly” qualified as a 

valid public use. 467 U.S. 229, 241-42 (1984). The fact that the State 

immediately transferred the properties to private individuals upon 

condemnation did not diminish the public character of the taking. Id. at 244. 

49. Kelo v. City of New London, 125 S. Ct. 2655, 2667 (2005) (citing 

Midkiff, 467 U.S. at 242).

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determination that the Fort Trumbull area was “sufficiently 

depressed” to validate a plan for economic development was well 

within the broad understanding of public purpose and thus not 

violative of the Fifth Amendment to the Federal Constitution. 50 

The Court examined the comprehensive nature of the 

development plan, and the detailed consideration that preceded its 

adoption under a limited scope of review and concluded it was 

proper, as it was in Berman, to decide the homeowners’ challenges 

based on the entire development plan, and not on an individual 

basis. 51 

In addition, the Court noted that “promoting economic 

development [has been] a traditional and long accepted function of 

the government” and that there was “no principled way of 

distinguishing economic development from the other public 

purposes that [the Court has] recognized.” 52 The Court reasoned 

that it would be out of step with precedent already laid down by 

the Court to find that the City’s interest in the economic benefits 

to be realized from the redevelopment of the Fort Trumbull area 

constituted less of a public character than any of the previous 

interests expressed as sufficient in the Court’s prior decisions. 

The fact that individual private parties might benefit in the City’s 

pursuit of a public purpose was irrelevant because, as the Court 

had previously stated in Berman, “[t]he public end may be as well 

or better served through an agency of private enterprise than 

through a department of government - or so the Congress might 

conclude. We cannot say that public ownership is the sole method 

of promoting the public purposes of community redevelopment 

projects.” 53 Because, under Berman and Midkiff, the NDLC’s 

redevelopment plan undeniably served a public purpose, the Court 

held that the taking of the homes in the Fort Trumbull area 

satisfied the public use requirement of the Fifth Amendment. 54 

Justice Kennedy joined the majority opinion but wrote a 

concurring opinion to stress that, while a rational-basis standard 

50. Id. at 2665. 

51. Id. 

52. Id. As examples, the Court cites Strickley v. Highland Boy Gold 

Mining Co., 200 U.S. 527 (1906), Berman v. Parker, 348 U.S. 26 (1954), 

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), and Ruckelshaus v. 

Monsanto, Co., 467 U.S. 986 (1984). Kelo, 125 S. Ct. at 2665. 

53. Id. at 2666. 

54. Id. at 2665.

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was appropriate, “transfers intended to confer benefits on 

particular, favored private entities. . . with only incidental or 

pretextual public benefits, [were still] forbidden by the Public Use 

Clause.” 55 In such instances, a court should “review the record to 

see if it has merit, though with the presumption that the 

government’s actions were reasonable and intended to serve a 

public purpose.” 56 Because the trial court conducted a thorough 

review of the findings, and determined that the primary 

motivation behind the City’s redevelopment of the Fort Trumbull 

area was not to benefit Pfizer or any other private party, but to 

take advantage of Pzfizer’s presence, the City’s actions survived 

“the meaningful rational basis review.” 57 However, Justice 

Kennedy noted that a situation may arise “in which the risk of 

undetected impermissible favoritism of private parties is so acute 

that a presumption (rebuttable or otherwise) of invalidity is 

warranted under the Public Use Clause.” 58 

Justice O’Connor, who was joined by Chief Justice Rehnquist, 

Justice Scalia, and Justice Thomas, dissented, concluding that 

economic development takings are not constitutional. 59 Justice 

O’Connor criticized the majority opinion for essentially erasing the 

line between private and public use of property and “thereby 

effectively . . . delet[ing] the words ‘for public use’ from the 

Takings Clause of the Fifth Amendment.” 60 Justice O’Connor 

pointed out that the Fifth Amendment expressly sets forth two 

distinct limitations on the use of eminent domain: public use and 

just compensation. 61 “This requirement promotes fairness as well 

as security.” 62 According to Justice O’Connor, if these constraints 

are to retain any meaning, it is necessary for the judiciary to keep 

a check on how the public use requirement is interpreted. 63 Thus, 

prior decisions regarding what constitutes public use have 

“reserved ‘a role for the courts to play in reviewing a legislature’s 

55. Id. at 2669 (Kennedy, J., concurring). 

56. Id. 

57. Id. at 2669-70. 

58. Id at 2670. 

59. Id. at 2671, 2673. 

60. Id. at 2671 (O’Connor, J., dissenting). 

61. Id. at 2672. 

62. Id. (citing Tahoe-Sierra Pres. Council, Inc., v. Tahoe Reg’l Planning 

Agency, 535 U.S. 302 (2002)). 

63. Id.

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judgment. . .’” 64 

Justice O’Connor went on to distinguish Berman and Midkiff 

from the situation at issue in the Fort Trumbull area. 65 In both 

Berman and Midkiff, the existing property was the source of the 

harm and the only way to remedy such harm was to condemn the 

property and eliminate the existing property. 66 The elimination of 

the identified harm constituted the necessary public purpose, and 

because in each case the taking directly promoted a public benefit, 

it was irrelevant that the property was subsequently turned over 

for private use. 67 The City did not assert that the Fort Trumbull 

homes were the source of any social harm. 68 In fact, the Derys and 

the Kelos were merely putting their well-maintained properties to 

ordinary private uses. 69 

Justice O’Connor argued that the majority decision 

“significantly expands the meaning of public use,” resulting in an 

interpretation that does “not realistically exclude any takings, and 

thus [does] not exert any constraint on the eminent domain 

power.” 70 Justice O’Connor further explained that allowing 

economic development takings threatens the security of all 

property ownership and that those likely to feel the harsh effects 

of the Court’s decision would be those individuals with the fewest 

resources. 71 Justice O’Connor believed that, because “the 

Founders cannot have intended this perverse result . . . the 

takings in both Parcel 3 and Parcel 4A [were] unconstitutional.” 72 

Justice Thomas wrote a separate dissent criticizing the long 

line of cases in which the Court has “strayed from the [Public Use] 

Clause’s original meaning.” 73 According to Justice Thomas, “the 

Takings Clause authorizes the taking of property only if the public 

has a right to employ it, not if the public realizes any conceivable 

benefit from the taking.” 74 

64. Id. at 2674 (quoting Berman, 348 U.S. at 32). 

65. Id. at 2674-75. 

66. Id. at 2674. 

67. Id. 

68. Id. at 2675. 

69. Id. 

70. Id. 

71. Id. at 2677. 

72. Id. 

73. Id. at 2678 (Thomas, J., dissenting). 

74. Id. at 2680 (emphasis added).

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Pursuant to a plan for economic development, the Derys, 

Susette Kelo and the other homeowners have been thrust from 

their private homes so that their land can be given to another 

private owner who, according to the legislature, will put the land 

to a more beneficial use. 75 The line between private and public 

use has been erased and “all private property is now vulnerable to 

being taken and transferred to another private owner, so long as it 

might be upgraded.” 76 Given that the Supreme Court expressly 

emphasized that its decision did not prevent the States from 

imposing stricter requirements on their exercise of the eminent 

domain power, 77 when the occasion arises, the Supreme Court of 

Rhode Island should seize the opportunity. 

II. CONSTITUTIONAL CONSTRUCTION: 

INTERPRETATION OF RHODE ISLAND’S TAKINGS CLAUSE 

Philip Bobbitt is “one of the nation’s leading constitutional 

theorists.” 78 In his book, Constitutional Fate: A Typology of 

Constitutional Arguments, Philip Bobbitt explores and identifies 

six types of constitutional arguments found in judicial opinions, 

hearings, and briefs. 79 The six argument types are: textual 

argument, 80 historical argument, 81 structural argument, 82 

doctrinal argument, 83 prudential argument, 84 and ethical 

argument. 85 Bobbitt asserts that what is generally considered the 

75. Id. at 2671-72 (O’Connor, J. dissenting). 

76. Id. at 2671. 

77. Id. at 2668 (majority opinion). 

78. The Globalist, Biography of Philip Bobbitt, http://www.theglobalist. 

com/bdweb/authorbiography.aspxauthorid=429 (last visited Apr. 9, 2006). 

79. BOBBITT, supra note 20, at 6-7. 

80. This argument considers the present meaning of the words within a 

particular provision. Id. at 7. 

81. This argument attempts to uncover the original understanding of a 

constitutional provision as understood by the writers and those who adopted 

the constitution. Id. 

82. This argument focuses on the structures of government and the 

relationships created in the Constitution and draws inferences from this set 

up. Id. 

83. This argument concentrates on precedent or judicial or academic 

commentary on precedent to reach conclusions regarding constitutional 

construction. Id. 

84. This argument considers the consequences of adopting a particular 

decision or interpretation. Id. at 7, 61. 

85. This argument examines the implication of the government playing a

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style of a particular judge is actually his or her preference for one 

of the above types of argument. 86 These arguments are not 

exhaustive and can frequently work together. 87 

A. Text 

Phillip Bobbitt’s textual approach to constitutional 

construction begins with an examination of the present plain 

meaning of the text. 88 In ascertaining the true meaning of a 

constitutional provision, one must look to the actual words within 

the text. 89 The takings clause of the Rhode Island Constitution, 

identical to that of the Takings Clause of the United States 

Constitution, 90 is found in Article I, the Declaration of Rights, 

under section 16, and reads as follows, “[p]rivate property shall 

not be taken for public uses, without just compensation.” 91 While 

constitutions are intended to endure for ages and adapt to the 

changing needs of society, one cannot altogether discount the word 

choice of the framers. 92 Every word is intended to have meaning, 

and it is essential that every word be given full force and effect. 93 

The Supreme Court of Rhode Island has consistently used this 

technique when interpreting other provisions in the Rhode Island 

Constitution. 94 

This technique can be applied to the phrase “public use.” 

Black’s Law Dictionary defines “public” as being “open or available 

for all to use, share, or enjoy.” 95 It is the opposite of “private.” 96 

central role within the American political culture. Id. at 94. 

86. Id. at 8. 

87. Id. 

88. Id. at 7. 

89. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 147 (1803) (“It cannot be 

presumed that any clause in the constitution is intended to be without 

effect”). 

90. U.S. Const. amend. V. 

91. R.I. CONST. art. I, § 16. 

92. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415-16 (1819). 

93. Marbury, 5 U.S. (1 Cranch) at 147. 

94. See Mosby v. Devine, 851 A.2d 1031, 1040 (R.I. 2004) (looking at the 

text of Article I, section 2 to determine the meaning of the provision); State v. 

One 1990 Chevrolet Corvette, 695 A.2d 502, 504 (R.I. 1997) (looking to the 

language of the statute at issue). 

95. BLACK’S LAW DICTIONARY 1264 (8th ed. 2004); see also WEBSTER’S NEW 

INTERNATIONAL DICTIONARY 2005 (2d ed. 1945) (defining public as open to 

common or general use, participation, enjoyment, etc; open to the free and 

unrestricted use of the public; as a public park or road).

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The term “use” is defined as “the application or employment of 

something else.” 97 In addition, Black’s Law Dictionary defines the 

phrase “public use” as referring to “the public’s beneficial right to 

use property or facilities subject to condemnation.” 98 While the 

United States Supreme Court has departed from the Black’s Law 

definition, 99 the Supreme Court of Rhode Island has embraced it, 

stating that public use “implies a possession, occupation, and 

enjoyment of the land by the public at large or by public 

agencies.” 100 Public use takings typically involve the taking of 

private property for highways, railways, public walkways, parks, 

and public buildings. 101 

The “public use” requirement has been extended as the law 

has developed. It is widely accepted that the phrase “public use” 

should be expanded to include takings of private property for a 

“public purpose.” 102 However, this extension does not drastically 

extend the phrase beyond its original meaning. “Public purpose” 

is defined as “an action by or at the direction of a government for 

the benefit of the community as a whole.” 103 A public purpose 

taking still must afford benefits to the general public as opposed 

to individual or private interests. The term “purpose” means “the 

end or aim to be kept in view in any plan, measure, exertion, or 

operation.” 104 When added to the term “public,” as defined above, 

the meaning of the phrase is not much different than “public use.” 

In either situation, the use or purpose for which private property 

96. Black’s Law Dictionary at 1233. 

97. Id. at 1577 (definition of “use”); see also WEBSTER’S NEW 

INTERNATIONAL DICTIONARY at 2806 (defining use under subheading eleven as 

the enjoyment of property which consists in its employment, occupation, 

exercise or practice and under subheading twelve to mean behalf; advantage; 

benefit). 

98. Id. at 1578 (sub definition of “use” the phrase “public use”). 

99. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 244 (1984) (stating 

that “it is not essential that the entire community, nor even any considerable 

portion, . . .directly enjoy or participate in any improvement in order for it to 

constitute a public use”). 

100. In re Rhode Island Suburban Ry., 48 A. 591, 593 (R.I. 1901). 

101. Id. at 592. 

102. See, e.g., In re Advisory Opinion to Governor, 324 A.2d 641, 646 (R.I. 

1974); Uhls v. State ex rel. City of Cheyenne, 429 P.2d 74, 79 (Wyo. 1967); 

Lerch v. Maryland Port Auth., 214 A.2d 761, 765 (Md. 1965); Green v. City of 

Mt. Pleasant, 131 N.W.2d 5 (Iowa 1964). 

103. See Black’s Law Dictionary at 1267. 

104. Webster’s New International Dictionary 2018 (2d ed. 1945).

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is to be taken must be essential to the effectuation of a wholly 

public benefit, and not the private interests of another. 105 

The taking of private property in “slum blighted areas” has 

also become an accepted “public use.” 106 The term “blight” refers 

to a condition of severe dilapidation that impairs growth, withers 

hopes and ambitions, or impedes progress and prosperity. 107 The 

Rhode Island legislature has identified three types of blight and 

substandard areas and defined them as follows: 

“Slum blighted area” means any area in which there is a 

predominance of buildings or improvements, either used 

or intended to be used for living, commercial, industrial, 

or other purposes, or any combination of these uses, 

which by reason of: (i) dilapidation, deterioration, age, or 

obsolescence; (ii) inadequate provision for ventilation, 

light, sanitation, open spaces, and recreation facilities; 

(iii) high density of population and overcrowding; (iv) 

defective design or unsanitary or unsafe character or 

condition of physical construction; (v) defective or 

inadequate street and lot layout; and (vi) mixed character 

or shifting of uses to which they are put, or any 

combination of these factors and characteristics, are 

conducive to ill health, transmission of disease, infant 

mortality, juvenile delinquency, and crime; injuriously 

affect the entire area and constitute a menace to the public 

health, safety, morals, and welfare of the inhabitants of 

105. See Palazzolo v. Rhode Island, 533 U.S. 606, 615 (2001); In re Rhode 

Island Suburban Ry., 48 A. at 593. 

106. See R.I. CONST. art. I, § 16 (stating “improvement of blighted and 

substandard areas shall be a public use and purpose for which the power of 

eminent domain may be exercised.”); Opinion to the Governor, 69 A.2d 531, 

532 (R.I. 1949) (redevelopment of blighted areas constitute public uses and 

purposes). See also Chicago Land Clearance Comm’n v. White, 104 N.E.2d 

236 (Ill. 1952) Nashville Hous. Auth. v. City of Nashville, 237 S.W.2d 946 

(Tenn. 1951); In re Slum Clearance in City of Detroit, 50 N.W.2d 340 (Mich. 

1951); Opinion of the Justices, 48 So. 2d 757 (Ala. 1950); Schenck v. 

Pittsburgh, 70 A.2d 612 (Pa. 1950); Redfern v. Bd. of Comm’rs of Jersey City, 

59 A.2d 641 (N.J. 1948); Hous. Auth. v. Higgenbotham, 143 S.W.2d 79 (Tex. 

1940); Allydonn Realty Corp. v. Holyoke Housing Authority, 23 N.E.2d 665 

(Mass. 1939); Hous. Auth. v. Dockweiler, 94 P.2d 794 (Cal. 1939). 

107. WEBSTER’S NEW INTERNATIONAL DICTIONARY 287 (2d ed. 1945) 

(defining blight as that which frustrates one’s plans or withers one’s hopes; 

that which impairs or destroys).

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the community and of the state generally. 108 

“Deteriorated blighted area” means any area in which 

there exist buildings or improvements, either used or 

intended to be used for living, commercial, industrial, or 

other purposes, or any combination of these uses, which 

by reason of: (i) Dilapidation, deterioration, age, or 

obsolescence; (ii) Inadequate provision for ventilation, 

light, sanitation, open spaces, and recreation facilities; 

(iii) High density of population and overcrowding, 

(iv) Defective design or unsanitary or unsafe character or 

conditions of physical construction; (v) Defective or 

inadequate street and lot layout; and (vi) Mixed 

character, shifting, or deterioration of uses to which they 

are put, or any combination of these factors and 

characteristics, are conducive to the further deterioration 

and decline of the area to the point where it may become a 

slum blighted area as defined in subdivision (18), and are 

detrimental to the public health, safety, morals, and 

welfare of the inhabitants of the community and of the 

state generally. 109 

“Arrested blighted area” means any area which, by 

reason of the existence of physical conditions including, 

but not by way of limitation, the existence of unsuitable 

soil conditions, the existence of dumping or other 

insanitary or unsafe conditions, the existence of ledge or 

rock, the necessity of unduly expensive excavation, fill or 

grading, or the necessity of undertaking unduly expensive 

measures for the drainage of the area or for the prevention 

of flooding or for making the area appropriate for sound 

development, or by reason of obsolete, inappropriate, or 

otherwise faulty platting or subdivision, deterioration of 

site improvements, inadequacy of utilities, diversity of 

ownership of plots, or tax delinquencies, or by reason of 

108. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 18) (emphasis 

added); see, e.g., Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 

23 (R.I. 1952). 

109. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 6) (emphasis 

added).

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any combination of any of the foregoing conditions, is 

unduly costly to develop soundly through the ordinary 

operations of private enterprise and impairs the sound 

growth of the community. 110 

In other words, in order for a particular area to classify as a 

“blighted area” subject to a taking by eminent domain, it must 

have reached a point of no return due to either extreme 

deterioration, constituting “a serious and growing menace. . . 

injurious and inimical to the public health, safety, and welfare of 

the people of the state,” 111 or costly, unsafe or unsanitary 

conditions that impair the healthy development of the 

community. 112 Thus, by condemning the property and 

redeveloping the area, the public interest is served and the public 

use requirement is satisfied. While even this extension of the 

“public use” requirement arguably exceeds the boundaries of valid 

eminent domain takings, 113 unlike the “economic development” 

extension in Kelo, the “blighted area” extension still imposes hefty 

limitations on the taking of private property. 

In contrast, the only requirement for the taking of private 

property under the “economic development” extension is that the 

city find that a particular area is “sufficiently depressed.” 114 This 

gives legislatures unprecedented discretion in their exercise of 

eminent domain power and permits the taking of private property 

merely because the legislature finds a more profitable use for the 

property. This analysis effectively deletes the “public use” 

requirement from the Takings Clause. Because no word or phrase 

in a constitution is without meaning, this interpretation of “public 

use” cannot stand. 

It is Rhode Island’s specific, detail-oriented, statutory 

definitions of blight which warrant a narrower interpretation of 

its takings clause than that employed by the United States 

Supreme Court. The Supreme Court of Rhode Island should 

decline to follow the United States Supreme Court decision in Kelo 

110. Id. (Section 2) (emphasis added). 

111. R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis) (legislative findings as 

to which slum blighted areas will qualify for eminent domain condemnation). 

112. R.I. GEN. LAWS § 45-31-8 (2005) (LexisNexis) (Section 2). 

113. Accord In re Advisory Opinion to Governor, 69 A.2d 531, 544 (Judge 

Flynn stating that redevelopment should not be considered as a public use). 

114. Kelo v. City of New London, 125 S. Ct. 2655, 2665 (2005).

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because it would erase the “public use” requirement from the 

takings clause of the state constitution and because it fails to 

satisfy Rhode Island’s strict taking requirements. 

C. Structure 

According to Bobbitt, the structural approach to constitutional 

interpretation examines the inferences taken from the structures 

established by the constitution. 115 The structure of article I, 

section 16 of the Rhode Island Constitution supports the position 

that the Supreme Court of Rhode Island should not extend the 

“public use” requirement to include takings on the basis of 

“economic development.” The clause, “[p]rivate property shall not 

be taken for public uses, without just compensation” sets forth two 

express limitations on the power of eminent domain. 116 One such 

limitation is the requirement of “just compensation” and the other 

is that private property can only be taken for public uses. 117 While 

the structure of Rhode Island’s taking clause is identical to that of 

the United States Takings Clause, 118 the Rhode Island Supreme 

Court is not restrained from interpreting the clause in a manner 

inconsistent with United States Supreme Court. 

These limitations provide private property owners with 

protection and security. 119 “[T]hey ensure stable property 

ownership by providing safeguards against excessive, 

unpredictable, or unfair use of the government’s eminent domain 

power.” 120 The public use requirement describes the scope of the 

eminent domain power: the government can deprive a person of 

his property only for the public’s use, but not for the use of 

another private individual. 121 It is the duty of the court to 

determine whether a particular use is a public use. 122 

By substituting “economic development” for “public use,” the 

requirement of just compensation remains intact, but the public 

115. BOBBITT, supra note 20, at 7. 

116. Kelo, 125 S. Ct. at 2672 (O’Connor, J., dissenting); City of Newport v. 

Newport Water Corp., 189 A. 843, 846 (R.I. 1937); see R.I. CONST. art. I, § 16. 

117. City of Newport, 189 A. at 846. 

118. See U.S. CONST. amend. V. 

119. Kelo, 125 S. Ct. at 2672 (O’Connor, J., dissenting). 

120. Id. 

121. Id. 

122. In re Rhode Island Suburban Ry., 48 A. 591 (R.I. 1901).

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use limitation on the exercise of eminent domain is severely 

reduced. 123 Private property owners would no longer enjoy the 

level of security and protection expressly afforded them by the 

framers. While private property owners would still enjoy the 

protection of “just compensation,” they would be denied the 

assurance of stable property ownership. The balance of power 

would shift into the hands of the government, leaving the use of 

eminent domain power virtually absolute and unchecked. 

In addition, the takings clause is found in article I of the 

Rhode Island Constitution which is titled, the “Declaration of 

Certain Constitutional Rights and Principles.” 124 Other rights 

expressed in Article I include: due process and equal protection, 125 

freedom of religion, 126 the right to privacy and freedom from illegal 

searches and seizures, 127 rights of those accused in criminal 

proceedings, 128 the right against self-incrimination, 129 and the 

right to trial by jury. 130 These guarantees were founded upon the 

principle that freedom and liberty were valued above all other 

interests. 131 The placement of the takings clause amongst these 

other fundamental rights illustrates that the security and 

protection of private property was a sacred right that should only 

be burdened in the rarest of circumstances. 

While the placement of the takings clause in the Rhode Island 

Constitution is similar to that in the United States Constitution, 

Rhode Island’s later amendments indicate a divergence from the 

meaning of its federal counterpart. These subsequent 

amendments support the view that private property rights are 

fundamental guarantees, subject to the exercise of eminent 

domain in limited situations. Adoption by the Rhode Island 

Supreme Court of the United States Supreme Court’s decision in 

Kelo would alter the structure of article I, section 16 of the Rhode 

123. Accord Power Lunch, supra note 2 (Bill Griffeth expressing concern 

that public uses, one of the safeguards of the eminent domain power, went by 

the wayside with the Kelo decision). 

124. R.I. CONST. art. I, § 16. 

125. R.I. CONST. art. I, § 2. 

126. R.I. CONST. art. I, § 3. 

127. R.I. CONST. art. I, § 6. 

128. R.I. CONST. art. I, § 10. 

129. R.I. CONST. art. I, § 13. 

130. R.I. CONST. art. I, § 10. 

131. Pimental v. Dep’t of Transp., 561 A.2d 1348, 1353 (R.I. 1989).

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Island Constitution, upset express limitations placed on the 

eminent domain power by the framers, and disrupt the provisions 

of subsequent amendments. Therefore, the Supreme Court of 

Rhode Island should decline to extend the exercise of eminent 

domain power to the taking of private property for economic 

development. 

D. History and Doctrine 

A thorough post-Kelo recommendation to the Supreme Court 

of Rhode Island must include an examination of Rhode Island 

takings clause jurisprudence. This analysis falls within Bobbitt’s 

doctrinal approach, which focuses on exploring the case law on a 

particular subject. 132 In addition, it is important under Bobbitt’s 

historical approach 133 to describe the historical background of 

eminent domain jurisprudence in Rhode Island, paying particular 

attention to those occasions in which the Supreme Court of Rhode 

Island has departed from the United States Supreme Court 

interpretation of similar federal constitutional provisions. 

1. Eminent Domain Jurisprudence in Rhode Island 

The Supreme Court of Rhode Island has consistently imposed 

narrow limits on the Rhode Island Constitution’s takings clause. 134 

Even with the expansion of the definition of public use, the court 

has sought to confine the use of eminent domain power so as to 

prevent its abuse. 135 

The Supreme Court of Rhode Island originally insisted on a 

strict interpretation of the “public use” requirement. 136 For 

example, in In re Rhode Island Suburban Railway Company, 137 

132. BOBBITT, supra note 20, at 7. 

133. Id. 

134. See City of Newport v. Newport Water Corp., 189 A. 843, 846 (R.I 

1937); In re Rhode Island Suburban Ry., 48 A. 591 (R.I. 1901); Talbot v. 

Talbot, 14 R.I. 57, 59 (1883). 

135. See O’Neill v. City of East Providence, 480 A.2d 1375, 1381 (R.I. 

1984) (finding that taking of plaintiffs land did not fit within the definition of 

public use because it did not comply with the necessary criteria); Ajootian v. 

Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I. 1952) (found the 

taking of a particular area to fit within the slum blighted area definition of 

public use only after detailed legislative findings). 

136. In re Rhode Island Suburban Ry., 48 A. at 591. 

137. Id.

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the court held that the taking of a private lot by the Rhode Island 

Suburban Railway did not qualify as a public use because the 

main reason for the selection of the particular lot was to satisfy a 

purely private interest. 138 The court stated that “the right to take 

is not for the convenience or advantage of the public, but for public 

uses.” 139 

The court went on to explain that, while many types of 

business may incidentally benefit the public, they do not justify a 

taking. 140 Private property cannot be taken for anything other 

than use by the public. 141 Public use “implies a possession, 

occupation, and enjoyment of the land by the public at large.” 142 

The court warned that if such a taking were to constitute a valid 

use of eminent domain, then companies could condemn land to 

construct any building that might be required to further company 

interests. 143 Thus, even in its early decisions, in accordance with 

other jurisdictions, 144 the court feared possible abuses of the public 

use requirement and sought to limit the type of takings that were 

included under the provision. 

As eminent domain jurisprudence developed, the trend 

became to broadly construe the meaning of public use to include 

the condemnation of blighted areas. 145 While the Rhode Island 

138. Id. at 593 (the only reason for choosing the lot was because it was 

located along the Providence River and the company could conveniently get 

coal by tide-water). 

139. Id. at 592. 

140. Id. 

141. Id. 

142. Id. at 593. 

143. Id. 

144. See Port of Umatilla v. Richmond, 321 P.2d 338, 347 (Or. 1958) (“the 

public’s use and occupation must be direct”); City of Richmond v. Carneal, 

106 S.E. 403, 407 (Va. 1921) (there should always be a “direct” public use of 

the property taken); In re Opinion of the Justices, 91 N.E. 405, 407 (Mass. 

1910) (the taking of private property to insure the proper development of 

industrial facilities primarily benefited individuals and only an incidental 

benefit to the public and thus was not considered a constitutional public use); 

Healy Lumber Co. v. Morris, 74 P. 681, 685 (Wash. 1903) (the use must be 

either a use by the public or a quasi public agency, and cannot be a merely 

incidental benefit to the public). 

145. See, e.g., O’Neill v. City of East Providence, 480 A.2d 1375, 1377 (R.I. 

1984) (considering the constitutionality of acquiring private property to 

effectuate urban renewal); Romeo v. Cranston Redevelopment Agency, 254 

A.2d 426, 428-29 (R.I. 1969) (considering whether private property proposed 

for condemnation complies with the definition of an arrested blighted area);

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Supreme Court has recognized that, in the wake of constantly 

changing conditions of society, the concept of public use needs to 

be more flexible, 146 it has continued to impose strict, narrow limits 

on the exercise of the eminent domain power. 147 

Following the lead of its sister states, 148 the Supreme Court of 

Rhode Island expanded its definition of “public use” to include the 

taking of private property in “blighted areas.” 149 However, in its 

advisory opinion on the constitutionality of the Community 

Redevelopment Act, which proposed the taking of private property 

in blighted areas, the court explicitly noted that its validation of 

the act was based on the highly specific definition of a “blighted 

area” and the fact that the conditions must “predominate and 

injuriously affect the entire area.” 150 The court clearly 

distinguished between an invalid statute that permitted the 

taking of private property for uses that were partly private and 

partly public but combined so as to make the two uses 

inseparable, and the Community Redevelopment Act, which is a 

valid public use because it seeks to eliminate disease, delinquency, 

overcrowding, deterioration and crime in the interest of public 

health and safety. 151 

Further, the court firmly stated that its advisory opinion did 

not condone the use of eminent domain under the act for a 

Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I. 1952) 

(considering whether the condemnation of private property fit within the 

definition of a slum blighted area); Opinion to the Governor, 69 A.2d 531, 531 

(R.I. 1949) (considering the constitutionality of the Community 

Redevelopment Act). 

146. See In re Advisory Opinion to the Governor 324 A.2d 641, 645-46 (R.I. 

1974); Romeo, 254 A.2d at 431. 

147. See O’Neill, 480 A.2d at 1381; Romeo, 254 A.2d at 431. 

148. See, e.g., Chicago Land Clearance Comm’n v. White, 104 N.E.2d 236 

(Ill. 1952); Nashville Hous. Auth. v. City of Nashville, 237 S.W.2d 946 (Tenn. 

1951); In re Slum Clearance in City of Detroit, 50 N.W.2d 340 (Mich. 1951); 

Opinion of the Justices, 48 So.2d. 757 (Ala. 1950); Schenck v. Pittsburgh, 70 

A.2d 612 (Pa. 1950); Redfern v. Board of Comm’rs of Jersey City, 59 A.2d 641 

(N.J. 1948); Hous. Auth. v. Higgenbotham, 143 S.W.2d 79 (Tex. 1940); 

Allydonn Realty Corp. v. Holyoke Hous. Auth., 23 N.E. 619 (Mass. 1939); 

Hous. Auth. v. Dockweiler, 94 P.2d 794 (Cal. 1939); Dornan v. Philadelphia 

Hous. Auth., 200 A. 834, (Pa. 1938) (slum prevention statute was 

constitutional because its fundamental purpose was for a public use). 

149. Romeo, 105 R.I. at 664; Ajootian, 91 A.2d at 26. 

150. In re Advisory Opinion to the Governor, 69 A.2d 531, 535 (R.I. 1949). 

151. Id. at 534.

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primarily esthetic purpose or as a means of creating an economic 

advantage for the municipality. 152 The act should be narrowly 

construed to apply only to those redevelopment projects that are 

necessary to protect public health, morals, and safety by removing 

blight. 153 

In addition, the court specifically rejected the idea that the act 

would permit municipalities to take private property under the 

guise of so-called “blighted conditions” in order to develop the area 

for a potentially more beneficial or profitable use. 154 In other 

words, only when the area in question constitutes a “menace to 

public health, safety, or welfare” can the municipality then engage 

in condemnation proceedings. 155 

In subsequent cases challenging both the Community 

Redevelopment Act and Amendment XXXIII of the Rhode Island 

Constitution, which adopted the Act into the state constitution, 156 

the court has strictly adhered to its narrow construction of what 

constitutes a “blighted area” and has only permitted the use of 

eminent domain in areas that fit within the rigorous definitions 

outlined in the Act and Amendment XXXIII. 157 

For example, in Ajootian v. Providence Redevelopment Agency, 

the Supreme Court of Rhode Island had its first opportunity to 

review the city’s application of the Slum Clearance and 

Redevelopment Act, which had repealed the fundamentally 

similar Community Redevelopment Act. 158 Through the use of its 

152. Romeo, 105 R.I. at 657; In re Advisory Opinion to the Governor, 69 

A.2d at 536. 

153. In re Advisory Opinion to the Governor, 69 A.2d at 536. 

154. Id. at 536-37. 

155. Id. at 539. 

156. Note, the adoption of the Community Redevelopment Act into the 

Rhode Island Constitution created a significant difference between the state 

constitution and the United States Constitution. 

157. See O’Neill v. City of East Providence, 480 A.2d 1375, 1382 (R.I. 

1984) (finding that the taking of land for the city’s proposed revitalization 

project did not constitute a proper public use because the city failed to meet 

the necessary requirements for a public use as defined in Amendment 

XXXIII); Romeo, 105 R.I. at 655 (finding that the area in question fit within 

the definition of an arrested blighted area after reviewing detailed legislative 

findings); Ajootian v. Providence Redevelopment Agency, 91 A.2d 21, 22 (R.I. 

1952) (finding that the designated project area qualified as a slum blighted 

area because it fit within the narrow definition); See generally R.I. CONST. 

art. I, § 16; R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis). 

158. 91 A.2d 21, 26 (1952) (“. . .both acts generally expressed the same

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eminent domain power under the Act, the city had proceeded to 

acquire lands within an area that it had determined to be a “slum 

blighted area.” 159 Plaintiff Ajootian owned one plot with a twofamily 

residential dwelling and two other lots within the 

designated area. 160 He sought an injunction against the city to 

prevent it from taking these properties. 161 

The court, reiterating the findings expressed in its Advisory 

Opinion regarding the Community Redevelopment Act, upheld the 

constitutionality of the Act and found that the taking of private 

property in order to dispose of blight in the interest of public 

safety, health, and welfare fit within the public use requirement of 

the takings clause. 162 In doing so, the court pointed out that the 

city had fulfilled all the necessary steps required by the Act before 

engaging in condemnation proceedings, including that the 

designated project area complied with the “slum blighted area” 

definition outlined in the Act. 163 The following findings were set 

forth: 

46 per cent of the land is used for industrial or 

commercial purposes; that the streets are narrow and 

congested; that of the 125 dwelling units, which are 

contained in 49 structures and occupied by about 400 

people, 110 have been surveyed; that 84 per cent of these 

were built before 1900; that 71 per cent have no central 

heating; that 63 per cent have no inside hot water; that 

62 per cent have no private bath; that 97 per cent are 

inadequate because of hazardous and unsanitary 

conditions; that 85 per cent have serious deterioration; 

and that all dwellings are predominately of wood 

construction, built close together and constitute fire 

hazards. . . . [B]ecause of such conditions, the incidence of 

juvenile delinquency, aid to dependent children, 

tuberculosis and other diseases are disproportionately 

legislative intent. The changes in the latter relate mostly to matters of detail 

and definition.”) 

159. Id. at 22. 

160. Id. 

161. Id. 

162. Id. at 26. 

163. Id. at 24.

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high. 164 

While the above facts and findings were not at issue, had the 

city not taken the necessary steps and made the proper findings to 

specifically show how the project area fit within the explicit 

definition of a “slum blighted area,” the court implied that the city 

may not have been entitled to exercise its eminent domain power 

to acquire Ajootian’s property. 165 

Thus, even under a more expansive “public use” requirement, 

the Supreme Court of Rhode Island continued to curtail the abuse 

of eminent domain power by requiring a positive showing that a 

particular area meet the definition of a “slum blighted area.” 

Such a showing is not required by the Federal Constitution, and 

therefore, justifies the Rhode Island Supreme Court to depart 

from the United States Supreme Court’s more lenient public use 

requirements. 

Subsequently, the citizens of Rhode Island approved an 

amendment, known as article XXXIII, to the Rhode Island 

Constitution. 166 This amendment somewhat broadened the state’s 

eminent domain power by permitting not only the removal of 

slums but also the removal of blight in general which frequently 

leads to slums. 167 However, unlike the United States 

Constitution, the provisions of the amendment still require 

specific showings that the existence of the alleged blighted area 

“constitutes a serious and growing menace which is injurious and 

inimical to the public health, safety, morals and welfare of the 

people. . . .” 168 

The Supreme Court of Rhode Island addressed the 

constitutionality of Article XXXIII in Romeo v. Cranston 

Redevelopment Agency, 169 specifically the inclusion of “arrested 

blighted areas” 170 within the definition of blighted and 

164. Id. at 22-23. 

165. See id. at 24; see also O’Neill v. City of East Providence, 480 A.2d 

1375, 1382 (R.I. 1984) (where the city was not authorized to use the eminent 

domain power because it failed to meet the necessary requirements.) 

166. Romeo v. Cranston Redevelopment Agency, 105 R.I. 651, 656 (1969). 

167. Id. at 658; see generally R.I. CONST. art. I, § 16; R.I. GEN. LAWS § 45- 

31-3 (2005) (LexisNexis). 

168. Romeo, 105 R.I. at 656; see R.I. GEN. LAWS § 45-31-3 (2005) 

(LexisNexis). 

169. Romeo, 105 R.I. at 651. 

170. See supra note 9, and accompanying text.

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substandard area. 171 The project in question involved a section of 

land that the city desired to acquire in order to build a highway 

and install various utilities. 172 The purpose of the project was to 

“assist in the orderly development of this particular area of 

Cranston.” 173 The plaintiff owned a home in the area and jointly 

retained eleven plots of vacant land in the project area. 174 

The court found that the redevelopment agency properly 

adhered to the standards set forth under the definition of an 

“arrested blighted area.” 175 The project area displayed the 

following conditions: outmoded platting, inadequacy of utilities, 

diversity of ownership of lots, title to multiple lots held by reason 

of their sale for unpaid taxes, and the disposal of garbage and 

perishables in the area. 176 The court went on to state that, while 

the textual definition of an “arrested blighted area” did not 

contain an express reference to public health, safety, and welfare, 

provisions of § 45-31-3 presented eight specific findings regarding 

the hazards which arise from blighted and substandard areas. 177 

Chief among these findings is that the area presents a “serious 

growing menace which is injurious and inimical to the public 

health, safety, morals, and welfare of the people. . . .” 178 

In endorsing the redevelopment agency’s findings and its use 

of the eminent domain power, the court was careful to explain that 

what classified as a valid public use was still a judicial question. 179 

Recognizing that this expansion of the public use requirement 

gave redevelopment agencies an “extreme grant of power,” the 

court reserved the authority to hear claims alleging an abuse of 

this power. 180 In other words, the Supreme Court of Rhode Island, 

while broadening the original, rigid definition of public use in 

171. Romeo, 105 R.I. at 654. 

172. Id. at 653. Utilities included water, sewer, drainage, gas, electric, 

telephone, street lighting and appurtenances. 

173. Id. In my view, because the city would be building a public highway 

on the land, this type of taking is the type envisioned by the framers and 

thus, validly within the original definition of “public use.” 

174. Id. at 654. 

175. Id. at 655. 

176. Id. at 655, n.1. 

177. Id. at 656; see generally R.I. GEN. LAWS § 45-31-3 (2005) (LexisNexis). 

178. Romeo, 105 R.I. at 656. 

179. Id. at 665. 

180. Id.

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order to conform with the changes of modern society, has 

continued to maintain a policy of strict adherence to the limits 

placed on the eminent domain power, a policy which the United 

States Supreme Court has not pursued. 

While the Supreme Court of Rhode Island has yet to be 

presented with a Kelo-like situation, it has recently referenced the 

Kelo decision. In Rhode Island Development Corp. v. The Parking 

Co., the court first reaffirmed “the well-established rule that what 

constitutes a public use is a judicial question.” 181 Then, in 

mentioning Kelo, the court stressed the fact that the Supreme 

Court had focused on the City of New London’s extensive, 

deliberate, and methodical approach in preparing the economic 

development plan and “the condemning authority’s responsibility 

of good faith and due diligence before it may start its 

condemnation engine.” 182 However, while the court appears to 

apply Kelo in a positive light, it also emphasizes the need for the 

“principle purpose and objective in a given enactment [to be] 

public in nature [and] designed to protect the public health, 

safety, and welfare.” 183 The court went on to conclude that 

condemnation proceedings motivated by a desire for increased 

revenue did not satisfy the public use requirement. 184 This 

implies that the Supreme Court of Rhode Island would be against 

the adoption of a bright line rule, as enunciated in Kelo, that 

taking private property for economic development will always 

constitute a valid public use, and opt for an approach that 

continues to limit the use of the eminent domain power. 

Thus, even under an expanded definition of public use, the 

Supreme Court of Rhode Island has continued to curb potential 

exploitation of the eminent domain power by imposing limits on 

its application. The court should continue its current practice of 

narrow construction of the public use requirement and reject the 

broad, all encompassing “economic development” interpretation of 

public use. 

181. R.I. Econ. Dev. Corp. v. Parking Co., 892 A.2d 87, 103 (R.I. 2006). The 

court found that, because the condemnation of a parking facility was 

motivated by a desire to increase revenue, the taking was not a legitimate 

public use). Id. at 101. 

182. Id. at 104. 

183. Id. 

184. Id.

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2. Departure From the United States Supreme Court 

The Supreme Court’s decision in Kelo represents the 

minimum level of protection that the States must afford their 

citizens under the Fifth Amendment to the federal Constitution. 185 

The States are free to interpret their state constitutions so as to 

provide additional rights to their citizens than the federal 

constitution provides. 186 Given this integral tenet of federalism, 

the Supreme Court of Rhode Island should enforce stricter “public 

use” requirements than the federal minimum. 

While the language of article I, section 16 of the Rhode Island 

Constitution and the Fifth Amendment to the federal Constitution 

are similar, 187 Rhode Island has not closed its doors to the 

possibility of departing from the minimum standards set by the 

Supreme Court. 188 In fact, Rhode Island has strayed from 

Supreme Court rulings and provided its citizens with a heightened 

degree of protection in several areas: the Fourth Amendment auto 

exigency, 189 drunk driving roadblocks under the Fourth 

Amendment, 190 electronic eavesdropping, 191 suppression of seized 

evidence, 192 and the Sixth Amendment right to a jury trial. 193 


186. Id. 

187. See U.S. CONST. amend. V; R.I. CONST. art. I, § 16 (“Private property 

shall not be taken for public uses, without just compensation”). 

188. See In re Advisory Opinion to the Governor, 666 A.2d 813, 817 (R.I. 

1995); State v. Taylor, 621 A.2d 1252, 1254 (R.I. 1993); State v. Werner, 615 

A.2d 1010, 1252 (R.I. 1992); State v. Bertram, 591 A.2d 14, 21 (R.I. 1991); 

State v. Mattatall, 603 A.2d 1098, 1112 (R.I. 1992); Pimental v. Dep’t of 

Transp., 561 A.2d 1348, 1350 (R.I. 1989). 

189. State v. Benoit, 417 A.2d 895, 899 (R.I. 1980) (departing from U.S. 

Supreme Court holding that the automobile exception included immobilized 

vehicles by invalidating the warrantless search of a car four hours after it 

had been seized by police), overruled by State v. Werner, 615 A.2d 1010, 1014 

(R.I. 1992) (overruled Benoit because the Supreme Court had subsequently 

corrected the inconsistencies in the auto exigency requirement). 

190. Pimental, 561 A.2d at 1351 (departing from the United States 

Supreme Court language that the Fourth Amendment allowed 

nondiscretionary roadblocks). 

191. State v. Maloof, 333 A.2d 676 (R.I. 1975) (requiring stricter 

compliance to the provisions of a state electronic eavesdropping statute than 

the Fourth Amendment’s requirement of a similar federal statute). 

192. State v. von Bulow, 475 A.2d 995, 1019 (R.I. 1984) (stating that even 

if the defendant’s Fourth Amendment rights had not been violated, the Rhode 

Island Constitution required a finding of an illegal search). 

193. In re Advisory Opinion to the Senate, 278 A.2d 852, 854-55 (1971)

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Rhode Island has generally departed from Supreme Court 

authority when a principled rationale exists for such a 

departure. 194 For example, in Pimental v. Dept. of Transp., 195 the 

Supreme Court of Rhode Island declined to follow the language of 

the Supreme Court decision in Delaware v. Prouse, 196 which 

allowed non-discretionary roadblock stops. 197 The Supreme Court 

of Rhode Island believed that such roadblocks would “diminish the 

guarantees against unreasonable searches and seizures” 

embedded in the Rhode Island Constitution. 198 The court 

recognized that, while the societal interest in getting drunk 

drivers off the roadways was compelling, it could not outweigh the 

fundamental guarantees of privacy explicitly outlined by the 

framers of the Rhode Island Constitution. 199 The court reasoned 

that to ignore the traditional values set forth in the Rhode Island 

Constitution would surely “shock and offend” the founders of this 

state. 200 Based on this reasoning, the court found that a 

principled rationale existed to depart from the minimum level of 

protection established by the Supreme Court. 201 

Similar to the situation in Pimental, a principled rationale 

exists to depart from the Supreme Court standard set forth in 

Kelo v. City of New London. The founders believed the right to 

acquire, possess, and protect property was a guaranteed 

fundamental right similar to the right to privacy. 202 This 

understanding that property was a natural, fundamental right 

was widely accepted and embodied in the common law. 203 For 

instance, William Blackstone 204 described private property rights 

(departing from the Supreme Court decision that a six person jury does not 

violate the Sixth Amendment). 

194. Pimental, 561 A.2d at 1351; Benoit, 417 A.2d at 899. 

195. 561 A.2d at 1348. 

196. Delaware v. Prouse, 440 U.S. 648, 663 (1979). 

197. Pimental, 561 A.2d at 1351. 

198. Id. at 1352. 

199. Id. 

200. Id. at 1352-53. 

201. Id. at 1351. 

202. DOCUMENTARY HISTORY OF THE CONSTITUTION VOL. II, 310-20 (1894), 

available at http://www.yale.edu/lawweb/avalon/const/ratri.htm. 

203. Kelo v. City of New London, 125 S. Ct. 2655, 2680 (2005) (Thomas, J. 

dissenting). 

204. Blackstone is credited with unintentionally inspiring the American 

Revolution and providing the foundation for American government. His 

Commentaries were very influential in the drafting of the Constitution and

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in the following way: “So great. . . is the regard of the law for 

private property, that it will not authorize the least violation of 

it.” 205 He wrote that “the law of the land. . . postpone[s] even the 

public necessity to the sacred and inviolable rights of private 

property.” 206 In addition, Rhode Island courts have recognized 

that ownership of property creates fundamental rights in that 

property. 207 This “bundle of rights” includes the right to exclude 

others, to possession, to use and enjoy, and to dispose of the 

property. 208 Because the taking of private property for “economic 

development” essentially allows the government to take private 

property solely on the basis of finding a more profitable use for the 

land, this fundamental right, valued by our founders, would be 

severely diminished. Surely such a violation would “shock and 

offend” the framers of the Rhode Island Constitution. 

Thus, because a principled rationale exists for departing from 

the Supreme Court minimum in Kelo v. City of New London, the 

Supreme Court of Rhode Island should afford its citizens with a 

heightened level of protection under the takings clause of Article I, 

section 16 of the state constitution. 

D. Prudentialism 

Bobbitt’s prudential approach to constitutional interpretation 

focuses on the consequences of adopting a particular decision or 

interpretation. 209 The sanctity of the home is a concept with deep 

roots, fully embedded in American tradition. 210 Homes provide 

the self-evident, unalienable rights philosophy underlying the Declaration of 

Independence likely originated with Blackstone. 

205. William Blackstone, 1 Commentaries 135. 

206. Id. 

207. See Harris v. Town of Lincoln, 668 A.2d 321, 327 (R.I. 1995); Emond 

v. Durfee, WL 936873, at *6 (R.I. Super. 1996). 

208. Emond, WL 936873, at *6. 

209. BOBBITT, supra note 20, at 7. 

210. For example, the concept is consistently found in Supreme Court 

Fourth Amendment cases protecting against unwarranted searches of the 

home. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (Government 

has the burden of showing that exigent circumstances existed before they 

may invade the sanctity of the home); Payton v. New York, 445 U.S. 573, 586 

n.24 (1980) (quoting Johnson v. United States, 333 U.S. 10, 13-14 (1948) (“the 

right of officers to thrust themselves into a home is also a grave concern, not 

only to the individual, but to a society which chooses to dwell in reasonable 

security and freedom. . . .”)).

SENNO 

5/15/2006 6:46 PM 


foundations for America’s families and the encouragement of 

stable family homes is a fundamental aspect of good public policy. 

Yet, with the Supreme Court decision in Kelo, allowing 

governments to take private property without fulfilling the public 

use requirement, 211 no family is safe from the threat of losing its 

home. What was formerly a hurdle for governments to overcome 

to take an individual’s home is now non-existent, resulting in the 

possibility of leaving once stable, happy households with no place 

to go. 

Entire families could be uprooted from their homes and forced 

to alter their lives 212 solely because the government believes that 

other businesses might be a more profitable use for the land. 

Children may be forced to change schools or child care facilities 

and leave their friends behind. Parents may have to find new jobs 

or drive longer distances to get to their current jobs. Similar to 

what happened to the Derys in New London, the government 

would be allowed to force elderly couples from their longstanding 

homes. 213 These couples may have special needs, like requiring 

wheelchair accessibility, that their home was particularly 

designed to handle. Eminent domain poses risks to financial 

stability and creates severe stress for all those affected. As a 

public policy matter, the pursuit of higher tax revenues should not 

trump the encouragement of stable family units. 

Some may argue that the legislature, acting on behalf of its 

constituents, is better situated to address policy concerns and that 

the courts should play at most a limited role. However, as will be 

discussed, certain situations call for the courts to step up and take 

a more active role in policy decision making. 214 For example, in 

this situation, constitutional interpretation and fundamental 

rights are at issue, and because, as shown below, the interests of 

all socioeconomic levels of society are not always taken into 

account by the local legislature, the courts, in an effort to protect 

those individuals less politically represented, need to intervene. 215 

211. Kelo v. City of New London, 125 S.Ct. 2655 (2005). 

212. See Petition for Writ of Certiorari, supra note 6. 

213. Id. at *9. 

214. See infra Part E. 

215. Both Kennedy in his concurrence and Thomas in his dissent support 

the idea that a more stringent standard of review may be appropriate for 

some takings. See Kelo, 125 S. Ct. at 2670 (Kennedy, J. concurring); 125 S. 

Ct. at 2687 (Thomas, J. dissenting).

SENNO 

5/15/2006 6:46 PM 


In addition, if the government is given free reign to take 

private property with such ease, private property owners will have 

less of an incentive to keep up their land and make improvements. 

What motivates a person to improve his land when the threat of 

condemnation is constantly looming over him Essentially, a 

private property owner would just be leasing from the city until 

the city decides it wants the land. 216 

Further, the Kelo expansion of public purpose “guarantees 

that these losses will fall disproportionately on poor 

communities.” 217 Economic development embraces any 

economically advantageous end. 218 Because poor communities 

have little political power and are almost certainly less likely to 

use their land to its maximum and paramount social use, they will 

inevitably feel the brunt of economic development takings. 219 

Since the expansion of the definition of “public use” to include 

the taking of “slum blighted areas,” this harsh disproportionate 

effect has already been felt among the nation’s poorer 

communities and the Supreme Court’s decision in Kelo would only 

work to aggravate those effects. 220 Between 1949 and 1963, 63 

percent of families uprooted by urban renewal whose race was 

known were minorities. 221 Of these families, while 56 percent of 

minorities and 38 percent of whites satisfied the public housing 

minimum income prerequisite, public housing was rarely 

available to them. 222 During the 1950s and 1960s, public works 

ventures decimated largely nonwhite neighborhoods in St. Paul, 

Minnesota and Baltimore, Maryland. 223 The lower income and 

elderly residents of Poletown in Detroit, Michigan were displaced 

from their homes in 1981 in order to make way for a new General 

Motors plant. 224 In the “slum clearance” development upheld by 

216. See Benjamin D. Cramer, Comment, Eminent Domain for Private 

Development- An Irrational Basis for the Erosion of Property Rights, 55 CASE 

W. RES. L. REV. 409, 419 (2004) (summarizing the comments of an Ohio 

property owner). 

217. Kelo, 125 S. Ct. at 2686-87 (Thomas, J. dissenting). 

218. Id. at 2686. 

219. Id. at 2686-87. 

220. Id. at 2687. 

221. Id. (quoting Berman v. Parker, 348 U.S. 26, 28 (1954)). 

222. Id. 

223. Id. (citing Berman, 348 U.S. at 28-29). 

224. Id. (citing Jeanie Wylie, Poletown: Community Betrayed 58 (1989)).

SENNO 

5/15/2006 6:46 PM 


the United States Supreme Court in Berman v. Parker, 225 more 

than 97 percent of people uprooted by the project were black. 226 

Because of its intimate connection to the dislocation of minorities, 

“urban renewal came to be known as ‘Negro removal.’” 227 The 

Supreme Court’s decision in Kelo will only worsen this situation. 

Now, under the guise of economic development, cities have 

unbridled power to take private property for any economically 

profitable objective, not just to remove blight. 

Thus, because the exercise of eminent domain has such 

negative effects on those displaced by it, as a matter of good public 

policy, the power of eminent domain should continue to be used 

only sparingly. A broad expansion of the power threatens to 

exacerbate an already devastatingly disproportionate condition. 

Therefore, the Supreme Court of Rhode Island should reject the 

Supreme Court’s finding that economic development is a valid 

public use because it gives the government too much discretion in 

exercising its takings power. 

E. Ethics 

The Kelo decision raises many ethical questions. Bobbitt’s 

ethical approach to constitutional interpretation takes a look at 

the implication of the government as a central role in American 

political culture. 228 In the absence of any real guidelines on the 

use of economic development as a justification for exercising the 

eminent domain power, what stops the government from abusing 

its takings power Does the government need to advance any 

rationale for its decisions to take private property for economic 

development What conditions must be present to condemn an 

area for economic development Can plans for economic 

development be based entirely on speculation 

The answers to these questions can be summed up with the 

following: because the Court gave complete deference to the 

legislature to determine which areas are ripe for economic 

225. Berman v. Parker, 348 U.S. 26 (1954). 

226. Kelo, 125 S. Ct. at 2687 (citing Berman, 348 U.S. at 30). 

227. Wendell E. Pritchett, The “Public Menace” of Blight: Urban Renewal 

and the Private Uses of Eminent Domain, 21 YALE L. & POL’Y REV. 1, 47 

(2003). 

228. BOBBITT, supra note 20, at 94.

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5/15/2006 6:46 PM 


development, 229 the government can take private property for 

essentially any reason without any meaningful check on its 

authority. In Kelo, the legislature only had to find that the Fort 

Trumbull area was “sufficiently distressed” and put together a 

plan that it “believed” would benefit the community. 230 However, 

the legislature did not provide any criteria for the basis of its 

finding that the Fort Trumbull area was “sufficiently depressed” 

or give any guarantee that its economic development plan would 

in fact create more jobs or increase tax revenue, thus benefiting 

the community. 

The question remains: Are there any safeguards in place to 

prevent the abuse of eminent domain 231 Some may argue that 

the political process can adequately remedy any potential abuses. 

In other words, because the citizens have a voice in whom they 

want to run their state, legislators seeking re-election will not 

alienate the citizens by abusing their powers. 

However, legislators are also influenced by corporations and 

organized interest groups who help raise money and promise 

votes. 232 It is these situations that threaten abuse of eminent 

domain power and call for the courts to intervene. “The 

beneficiaries [of the Kelo decision] are likely to be those citizens 

with disproportionate influence and power in the political process, 

including large corporations and development firms.” 233 The Kelo 

decision encourages more influential citizens to take advantage of 

individuals who are less politically powerful. 234 These ethical 

considerations make it more likely that the aforementioned 

negative prudential concerns will be realized. Especially in regard 

to large influential corporations, such as General Motors or Pfizer, 


230. Id. 

231. Power Lunch, supra note 2 (Bill Griffeth asking, “what stops the head 

of a major hotel from coming in and wanting to develop a choice piece of 

property that already has homes on it “Couldn’t he just say, ‘you let me 

build, and your tax base will go up’”). 

232. Cramer, supra note 216, at 419; See Kelo, 125 S. Ct. at 2670 

(Kennedy, J. concurring) (stating that “there may be some categories of cases 

in which the transfers are so suspicious, or the procedures employed so prone 

to abuse, or the purported benefits are so trivial or implausible, that courts 

should presume an impermissible private purpose.”). 

233. Kelo, 125 S. Ct. at 2677 (O’Connor J., dissenting). 

234. Id. at 2687 (Thomas, J., dissenting).

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5/15/2006 6:46 PM 


municipalities could essentially act as personal real estate agents. 

A constitutional right thus would be undermined to adhere to the 

interests of private corporate interests. 235 

In the aftermath of the Kelo decision, the incidents of abuse of 

eminent domain power are already surfacing nationwide. 236 For 

example, city officials in National City, California endorsed the 

use of eminent domain to take a large area of the city to allow a 

private developer to build an office tower, condominiums and 

retail space. 237 While not all properties in the designated area are 

blighted, they are still subject to eminent domain taking “because 

the proposed development will be more profitable.” 238 In Toledo, 

Ohio, eighty three well-maintained homes were condemned so 

that a Jeep plant, that threatened to leave otherwise, could 

expand its facilities. 239 Elsewhere, property owners in Menomonee 

Falls, Wisconsin could stand to lose their land as the city 

formulates a tangible redevelopment plan. 240 

Even homeowners in upscale and middle-class neighborhoods 

are not safe. 241 Homeowners in Boulevard Heights, an upscale 

community in St. Louis, Missouri, were forced from their homes to 

make way for a shopping center. 242 In Long Branch, New Jersey, 

city officials moved to employ eminent domain to seize middleclass 

oceanfront homes and replace them with luxury 

condominiums. 243 

Some Rhode Island citizens are also among those who are 

feeling the harsh effects of the abusive post-Kelo eminent domain 

power. 244 Back in 2000, the city of Warwick sought to redevelop 

235. Accord Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 

455, 482 (Mich. 1981) (Ryan, J., dissenting). 

236. Castle Coalition, http://www.castlecoalition.org/legislation/index.html 

(last visited Apr. 17, 2006). 

237. Castle Coalition, http://castlecoalition.org/current_controversies/ 

index.html (last visited Apr. 17, 2006) (under National City, Calif. Heading). 

238. Id. 

239. Castle Coalition, http://maps.castlecoalition.org/ (last visited Apr. 17, 

2006) (Select Ohio on “select state” drop down menu, then select Toledo on 

the map). 

240. Castle Coalition, http://castlecoalition.org/current_controversies/ 

index.html (last visited Apr. 17, 2006) (under Menomonee Falls, Wisconsin 

heading). 

241. Id. (under Long Branch, NJ and St. Louis, Mo. headings). 

242. Id. (under St. Louis, Mo. heading). 

243. Id. (under Long Branch, NJ heading). 

244. Castle Coalition, http://maps.castlecoalition.org/ (last visited Apr. 17,

SENNO 

5/15/2006 6:46 PM 


the Station District. 245 Plans were stalled when the Warwick 

Station Redevelopment Agency failed to secure the land needed 

for the project. 246 Property owners in the area were simply not 

willing to negotiate. 247 However, in light of the Kelo decision, the 

city and Warwick Station Redevelopment Agency have renewed 

their efforts to put their plan in motion. 248 Agency chairman 

Michael Grande says, “[t]he only obstacle to private development 

of hotels, condos, office space, and retail is the price of the dirt.” 249 

Thus, if the Supreme Court of Rhode Island adopted economic 

development as a valid public use, property rights would exist 

subject to the compulsion of the government and its desires to 

satisfy influential corporations. The lure of potential abuse of the 

eminent domain power would be great. 

IV. CONCLUSION 

In sum, the Supreme Court of Rhode Island should reject the 

United States Supreme Court decision in Kelo v. City of New 

London to extend the use of the eminent domain power to include 

the taking of private property for economic development. 

The text and structure of Article I, section 16 both imply that 

the “public use” requirement is a limitation on the exercise of 

eminent domain. Not only must the government pay just 

compensation, but the intended use must be for the possession, 

enjoyment, and occupation by the public. It cannot be for the 

benefit of a purely private interest. While the Supreme Court of 

Rhode Island has accepted the extension of the “public use” 

requirement to include the taking of “blighted” areas, this 

exception is extremely narrow and only applies to those areas that 

are so deteriorated and dilapidated that public health and safety 

are at risk or those unsafe and unsanitary “arrested blighted 

areas” that prevent the healthy growth of a community. 

In addition, Rhode Island’s history and doctrine support the 

rejection of the Kelo expansion of eminent domain jurisprudence. 

2006) (Select Rhode Island on “select state” drop down menu, then select 

Warwick on the map). 

245. Id. 

246. Id. 

247. Id. 

248. Id. 

249. Id.

SENNO 

5/15/2006 6:46 PM 


The Supreme Court of Rhode Island has continued to enforce a 

strict application of the eminent domain power. In its advisory 

opinions and subsequent decisions, the court has explicitly 

rejected the notion that the government could take private 

property solely for the purpose of putting it to a more beneficial 

use. 

Furthermore, the Supreme Court of Rhode Island has not 

hesitated to depart from the United States Supreme Court in the 

past when it believed that a principled rationale existed to afford 

its citizens with more protection than the federal minimum. 

Because the private right to property ownership was a core, 

fundamental value of the founders, to allow the government to 

acquire private property with such ease would be wholly contrary 

to their beliefs and objectives. 

Finally, the furtherance of good public policy and the 

hindering of unethical abuse of the eminent domain power are 

additional reasons to reject the Kelo holding. It is violative of 

public policy to uproot families and force them out of their homes. 

Also, because there are essentially no limitations on the economic 

development rationale, the government is susceptible to bribery 

from large influential corporations. 

For these reasons, the Supreme Court of Rhode Island should 

depart from the United States Supreme Court decision in Kelo v. 

City of New London, and provide the citizens of Rhode Island with 

more protection of individual property rights than that afforded by 

the federal minimum. 

Christina M. Senno

GLIOTTONE 

5/15/2006 6:57 PM 

Civil Procedure. Glittone v. Ethier, 870 A.2d 614 (R.I. 

2005). Motions for summary judgment may be argued before the 

expiration of the ten-day waiting period delineated in Rule 56(c) of 

the Superior Court Rules of Civil Procedure if the non-moving 

party fails to raise an objection to the timing of the motion 

hearing. Additionally, the court held that under Rhode Island’s 

comparative negligence system a plaintiff, notwithstanding his 

own negligence, is entitled to survive summary disposition if he or 

she can provide any evidence suggesting a genuine issue of 

material fact as to the defendant’s negligence. 

FACTS AND TRAVEL 

Silvestro Gliottone, filed a negligence action against Jeff 

Ethier following a motor vehicle accident. 1 Gliottone was driving 

northbound on Dyer Avenue in Cranston when he attempted to 

turn left into a service station; while crossing the southbound lane 

of the road, he struck the Ethier’s vehicle. 2 Connie Martone was 

traveling behind the car driven by the defendant, Jeff Ethier, and 

in her deposition she stated that she saw the plaintiff’s vehicle 

cross the center of the roadway and strike the defendant’s car 

head-on. 3 Furthermore, Martone stated that Gliottone’s vehicle 

was not displaying a directional signal, and she estimated that 

Ethier’s vehicle was traveling between twenty-five and twentyeight 

miles per hour at the time of the collision. 4 Martone 

“emphasized. . .that plaintiff crossed into oncoming traffic so 

suddenly that defendant could not have avoided the accident.” 5 

Gliottone acknowledged in his deposition that he had no 

recollection of the accident “other than seeing a ‘white blur’ just 

before striking his head on his windshield.” 6 Additionally, 

Gliottone stated that he had not seen Ethier’s vehicle prior to 

1. Gliottone v. Ethier, 870 A.2d 1022, 1023 (R.I. 2005). 

2. Id. 

3. Id. at 1024. 

4. Id. 

5. Id. 

6. Id. at 1023. 

759

GLIOTTONE 

5/15/2006 6:57 PM 


impact. 7 Moreover, he could not recall whether he was wearing a 

seatbelt at the time of impact, nor whether his foot was on the 

accelerator or the brake. 8 Discovery revealed that plaintiff had no 

remaining vision in his left eye. 9 

At the encouragement of the Superior Court trial justice, 

Ethier filed a motion for summary judgment, alleging an absence 

of any issues of material fact to be submitted to the jury. 10 That 

same afternoon, Ethier argued his motion, asserting that 

Gliottone had failed to raise evidence sufficient to create a genuine 

issue of material fact as to defendant’s negligence. 11 Gliottone 

argued in response that photographs depicting damage to the 

vehicles at the scene of the accident created an issue of material 

fact as to the comparative negligence of the defendant; Gliottone 

did not, however, challenge the timing of the court’s consideration 

of the motion. 12 The hearing justice granted the motion for 

summary judgment and Gliottone filed a timely notice of appeal. 13 

ANALYSIS AND HOLDING 

On appeal, Gliottone alleged that the hearing justice 

committed both substantive and procedural errors. 14 First, 

Gliottone asserted that the hearing justice abused his discretion 

by hearing the summary judgment motion without a showing that 

plaintiff had received ten days notice of the motion in accordance 

with Superior Court Rule of Civil Procedure 56(c), which states, 

inter alia, that motions for summary judgment “shall be served at 

least 10 days before the time fixed for the hearing.” 15 The plaintiff 

alleged that this language in Rule 56(c) established a ten-day 

waiting period that may not be waived under the “raise or waive” 

rule. 16 

The court acknowledged that the application of the “raise or 

waive” rule to Rule 56(c) was a novel question in Rhode Island. 17 

7. Id. at 1024. 

8. Id. 

9. Id. 

10. Id. 

11. Id. 

12. Id. 

13. Id. 

14. Id. 

15. Id. at 1024-25 (quoting R.I. R. Civ. P. 56(c)). 

16. Id. at 1025. 

17. Id. at 1025 n.2.

GLIOTTONE 

5/15/2006 6:57 PM 

2006] SURVEY SECTION 761 

As a result, the court reviewed precedent from other federal 

jurisdictions. 18 Noting that Rhode Island Rule 56 is “substantially 

similar” to its federal counterpart, the court found it appropriate 

to consider federal authority, 19 which states that “in the absence of 

an objection, the defect of untimely service under Rule 56 will be 

deemed waived.” 20 Additionally, the court looked to other state 

jurisdictions that have considered the application of the “raise or 

waive” rule to Federal Rule 56(c) and found that those states 

“likewise have held that failure to object to noncompliance with 

Rule 56(c)’s ten-day requirement results in a waiver of the 

argument on appeal.” 21 Since the court could “discern no reason to 

deviate from the weight of authority from around the country,” it 

held that if a party fails to object to the timing of the court’s 

hearing on a summary judgment motion, “the defect in compliance 

with the ten-day requirement is waived and the court’s 

consideration of the motion will not constitute reversible error.” 22 

In further support of the holding, the court determined that the 

plaintiff here was not prejudiced by the prompt consideration of 

the summary judgment motion because, as plaintiff’s counsel 

admitted, both parties had knowledge of the facts intended to be 

argued in support of the summary judgment motion at least ten 

days prior to the hearing. 23 

On the substantive issues, the plaintiff asserted that the 

granting of summary judgment was reversible error because the 

photographs of the damaged vehicles were sufficient to create a 

18. Id. at 1025. 

19. Id. (citing Kelvey v. Coughlin, 625 A.2d 775 (R.I. 1993); Heal v. Heal, 

762 A.2d 463 (R.I. 2000)). 

20. Id. (citing 10A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND 

PROCEDURE § 2719 (3d ed. 1998); 11 JAMES WM. MOORE ET AL., MOORE’S 

FEDERAL PRACTICE § 56.10[2][a] at 56-49 (3d ed. 2004)). 

21. Id. at 1025-26 (citing McKenzie v. Killian, 887 So.2d 861 (Ala. 2004); 

Wahle v. Med. Ctr. of Del., Inc., 559 A.2d 1228 (Del. 1989); Richardson v. 

Citizens Gas & Coke Util., 422 N.E.2d 704 (Ind. Ct. App. 1981)). 

22. Id. at 1026. The court also noted that “Rhode Island is not completely 

without local guidance” on this issue. Id. at 1026 n.4. The court noted that in 

Professor Robert Kent’s “influential treatise,” he wrote: “[f]ailure to serve the 

motion [for summary judgment] 10 days before the hearing does not 

necessarily void the motion. If it is in fact heard on the designated date, and 

the opposing party does not raise the timeliness of notice, the defect is 

waived.” Id. (quoting 1 KENT, RHODE ISLAND CIVIL PRACTICE § 56.3 at 417-18 

(1969)). 

23. Id. at 1026-27.

GLIOTTONE 

5/15/2006 6:57 PM 


material issue about the defendant’s speed at the time of the 

crash. 24 After reviewing the record de novo, the court vacated the 

grant of summary judgment to the defendant and held that, 

despite strong evidence of plaintiff’s negligence, a “jury reasonably 

could infer from the evidence presented. . .that defendant may too 

have been negligent.” 25 Indeed, the court noted that in a 

comparative negligence jurisdiction such as Rhode Island, the 

plaintiff is entitled to avoid summary disposition of the action if he 

presents evidence creating a genuine issue of material fact as to 

the negligence of the defendant. 26 Previously, the court had held 

that accident scene photographs are admissible to prove causation 

of injuries even without expert testimony. 27 Thus, in this case, the 

court determined that summary judgment was improperly 

granted because the photographs offered into evidence by 

Gliottone depicted vehicular damage of sufficient degree that a 

jury could reasonably infer that Ethier may have been speeding at 

the time of the accident. 28 Therefore, a potential material issue of 

fact was created, making summary disposition inappropriate. 29 

COMMENTARY 

This case articulates a frustration of the underlying principles 

and policies of comparative negligence and summary judgment 

when it declares negligence cases, no matter how weak, immune 

from summary adjudication. 30 Under the rules of summary 

judgment, as codified in Rule 56, cases in which “no issues of 

material fact appear” allow the trial justice to enter an order 

dismissing the case in favor of the moving party. 31 This rule 

serves a vital role in maintaining the efficiency of the court system 

by providing a mechanism by which cases lacking merit are not 

allowed to advance to trial. 32 Without such a rule the court 

system would be even more bogged down than it currently is 

24. Id. at 1027. 

25. Id. at 1028. 

26. Id. at 1028-29. 

27. Id. at 1028 (citing Boscia v. Sharples, 860 A.2d 674 (R.I. 2004)). 

28. Id. 

29. See id. 

30. See id. at 1028-29. 

31. Id. at 1027 (quoting Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)). 

32. See id. at 1027-28.

GLIOTTONE 

5/15/2006 6:57 PM 


because the court would be required to adjudicate every minor 

negligence claim, regardless of whether any substantial evidence 

supports the charges alleged. 

The Rhode Island Supreme Court, however, potentially 

frustrates the efficient administration of justice by the Superior 

and District Courts when it states that “issues of negligence are 

ordinarily not susceptible of summary adjudication, but should be 

resolved by trial in the ordinary manner.” 33 In adopting such a 

rule, the court abandons its doctrine of efficiency and instead 

catapults negligence actions to a position of superiority above all 

other civil wrongs in contravention of the policy of fairness that 

underlies comparative negligence. Indeed, the principle of 

comparative negligence is meant to eliminate the arbitrary and 

unfair results of contributory negligence, not to provide the 

plaintiff with a sure-fire avenue to trial. 34 Such a system as the 

Rhode Island Supreme Court has now created in Gliottone could 

have a disastrous effect on the efficient administration of justice 

because the courts in Rhode Island may now be required to hear 

any negligence case in which a mere potential material issue of 

fact is presented. No longer must a plaintiff in a negligence case 

provide a concrete issue of material fact; a scant offer of proof 

may now be sufficient to overcome a motion for summary 

judgment. Such a standard means that regardless of the strength 

(or weakness) of the evidence, all negligence actions must be 

resolved at trial as a matter of right. 

CONCLUSION 

The Rhode Island Supreme Court held that when a party fails 

to challenge a hearing justice’s consideration of a summary 

judgment motion before the expiration of the ten-day period for 

service of the motion, as prescribed by Rule 56(c) of the Rhode 

Island Rules of Civil Procedure, the defect in compliance with the 

ten-day requirement is waived and will not constitute reversible 

error. 35 Secondly, the court held that as issues of negligence are 

not ordinarily susceptible to summary adjudication, the order of 

33. Id. at 1028 (quoting Rogers v. Peabody Coal Co., 342 F.2d 749, 751 

(6th Cir. 1965)). 

34. See id. at 1028-29 & n.6. 

35. Id. at 1026-27.

GLIOTTONE 

5/15/2006 6:57 PM 


summary judgment dismissing plaintiff’s claim was 

inappropriate. 36 Therefore, the court ordered that the case be 

remanded for further consideration. 37 

Russell E. Farbiarz 

36. Id. at 1028-29. 

37. Id. at 1029.

GEM PLUMBING 

5/15/2006 7:04 PM 

Constitutional Law. Gem Plumbing & Heating Co., Inc. 

v. Rossi, 867 A.2d 796 (R.I. 2005). The Mechanics’ Lien Law, as 

amended by Rhode Island General Law § 34-28-17.1 (the Statute), 

does not violate procedural due process. A claimant has a preexisting 

interest in any property improved upon by him or her due 

to labor and materials expended by the claimant. The deprivation 

of a property owner’s interest under the Statute does not amount 

to a temporary total deprivation as a property owner has access to 

a prompt post-deprivation hearing, as well as other procedural 

safeguards, under the Fourteenth Amendment of the Constitution 

and under Article 1, section 2, of the Rhode Island Constitution. 


In October, 2000, Robert V. Rossi and Lynda A. Rossi 

contracted with Gem Plumbing & Heating Co., Inc. (Gem) to 

provide the raw materials and labor required for water and sewer 

lines necessary for an office building the Rossis were building in 

Smithfield, Rhode Island (the Property). 1 On January 28, 2002, 

Gem sent the Rossis notice of its intention to do work and furnish 

materials in connection with the construction on the Property, and 

then recorded a copy of this notice in the Land Evidence Records 

office of Smithfield, Rhode Island, as required by the Statute. 2 

Four months later, on May 28, 2002, Gem filed a petition to 

enforce its mechanic’s lien, claiming that it was owed $35,500.00 

in unpaid labor and materials. 3 Gem also recorded a notice of lis 

pendens on that same day. 4 

Subsequently, as prescribed by the Statute, the Rossis paid 

$35,860.00, the total amount of Gem’s lien claim, plus costs, into 

the court registry. 5 The Rossis then filed an ex parte motion to 

dissolve and discharge the mechanics’ lien and the lis pendens, 

1. Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796, 800 (R.I. 

2005). 

2. Id. at 800 (citing R.I. GEN. LAWS § 34-28-4 (1995)). 

3. Id. 

4. Id. 

5. Id. 

765

GEM PLUMBING 

5/15/2006 7:04 PM 


which the court granted on June 4, 2002. 6 On August 29, 2000, 

the Rossis filed a motion to dismiss, charging that the Statute was 

unconstitutional, in that it deprived them of their property 

without due process. 7 

The Rossis informed the Rhode Island Attorney General of the 

constitutional claim (as required by Rule 24 (d) of the Superior 

Court Rules of Civil Procedure), but the state refused to 

intervene. 8 After a hearing on October 23, 2002, the motion 

justice entered an order that invited the Attorney General and 

any other interested party to file amicus briefs, requiring that 

notice of this invitation be given also to major building and 

construction associations. 9 After the Attorney General and 

several other amici curiae submitted their briefs, the court heard 

the arguments as to the constitutionality of the Statute. 10 

Afterwards, the motion justice then issued a written decision 

declaring the Statute unconstitutional. 11 The Statute, however, 

has since been amended, and it was the amended Statute that was 

ultimately reviewed by the Rhode Island Supreme Court. 12 

In his decision analyzing the pre-amendment Statute, the 

motion justice drew heavily upon the United States Supreme 

Court’s most current procedural due process decision that 

addressed pre-judgment remedies, Connecticut v. Doehr. 13 The 

motion justice in this instance found that a mechanic’s lien clouds 

title (similar to the clouding the Supreme Court found with 

attachment in Doehr) and that it impairs the owner’s ability to sell 

property; additionally, he found that it taints credit ratings, 

reduces the likelihood of obtaining a home equity loan, and can 

6. Id. In its order, the Superior Court stated that “the amount deposited 

with the court registry was substituted forthwith for the mechanic’s lien and 

lis pendens in the event that Gem eventually succeeded on the merits.” Id. at 

800-01. 

7. Id. at 801. The court clarified that the claim invoked was not “one of 

procedural due process, which is manifestly different from a ‘taking.’ The 

former prevents the ‘deprivation’ of life, liberty or property without due 

process. The latter provides protection from the government’s power of 

eminent domain . . . [t]his is not a ‘takings’ case.” Id. at 801 n.4. 

8. Id. at 801. 

9. Id. 

10. Id. 


12. Id. 

13. Id. (citing Connecticut v. Doehr, 501 U.S. 1 (1991)).

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also place an owner’s current mortgage in technical default. 14 

The motion justice held that the “tremendous significance” of the 

property interest (along with the statutorily required sworn 

affidavit of the claimant) was inadequately safeguarded against 

the possibility of erroneous depravation; thus this interest 

considerably outweighed both the claimant’s interest in any 

prejudgment remedy, as well as the potential burden on the 

government, if additional safeguards were imposed. 15 

The motion justice entered judgment in favor of the Rossis on 

May 30, 2003, and dismissed the action, ordering that the 

$35,860.99 be released from the court registry, with accrued 

interest added. 16 The motion justice also issued an order staying 

the judgment for thirty days. 17 Gem subsequently appealed. 18 


The Rhode Island Supreme Court focused on two major issues 

on appeal: (1) whether the enactment of an amendment to the 

Statute, which provided retroactive effect to all mechanics’ liens 

pending the day of the amendment’s enactment (July 17, 2003), or 

the pre-amendment statute would be controlling; 19 and (2) 

whether the amendment 20 provided the Rossis with adequate 

procedural due process protections under both the United States 

and the Rhode Island Constitutions. 21 The court held that the 

Statute as amended was constitutional. 22 The court noted that 

after the motion justice had declared the Statute 

unconstitutional, 23 

the Rhode Island Legislature amended the 

Statute on July 17, 2003, by adding § 34-28-17.1. 23 The court 

commented that “[g]enerally, if the Legislature amends or adds a 

statute relevant to a case that is pending appeal, this Court will 

14. Id. 

15. Id. 

16. Id. 

17. Id. at 801-02. 

18. Id. at 802. Subsequently, the motion justice declined to make the 

stay indefinite, instead extending it to July 10, 2003. The court later stayed 

the judgment pending further order. Id. 

19. Id. 

20. R.I. Gen. Laws § 34-28-17.1. 

21. 867 A.2d at 810-12. 

22. Id. at 818. 

23. Id. at 802.

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apply ‘the law and effect at the time of the appeal,’ even when the 

Statute was not in effect when judgment was entered in the trial 

court.” 24 

The court stated that: 

Statutes are given retroactive effect only when the 

Legislature clearly expresses such an application . . . 

Section 34-28-17.1 applies, not only to all future 

mechanics’ liens, but also to all pending “mechanics’ liens, 

petitions or lien substitutions” as of July 17, 2003 . . . . 

This language clearly intends to apply §34-28-17.1 both 

prospectively to future mechanics’ liens and 

retrospectively to pending mechanics’ liens. Based on the 

clear language of the statute and our case law, we are 

required to apply the Mechanics’ Lien Law as amended 

by §34-28-17.1 to this appeal. 25 

Having concluded that the propriety of the motion justice’s 

ruling would be analyzed using the amended statute, the court 

then turned its attention to ascertaining the nature of the Rossis’ 

property interest. 26 The court stated: 

At the time of the motion justice’s judgment on May 30, 

2003, and before the amendment to the statute, the 

Rossis had precious few avenues for relief from a 

perfected lien. Pursuant to § 34-28-17, property owners 

could deposit a bond (or cash) equivalent to the total 

amount of the notice of intention (plus associated costs) 

into the court registry and then petition the Superior 

Court ex parte to discharge the notice of intention and lis 

pendens, thereby clearing title to the property. Under § 

34-28-17, this option is available to the property owner at 

any time after the recording of the notice of intention or, 

alternatively, after the filing of a petition to enforce. Of 

course, the property owner, as responded to the petition 

in Superior Court, may contest both the lien itself and the 

amount claimed on their merits, although the statute is 

unclear as to exactly when that contest shall be heard. § 

24. Id. (citing O’Reilly v. Town of Gloucester, 621 A.2d 697, 704-05 (R.I. 

1993)). 

25. Id. 

26. Id. at 804.

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34-28-20. Finally, a property owner prevailing on the 

merits may be entitled to costs, and, in the court’s 

discretion, attorneys’ fees. 27 

The enactment of the amendment to the Statute changed the 

“playing field” of the lien holder and the owner of the property. 28 

The court noted: 

However, P.L. 2003, ch. 269, section 1 (codified as §34-28- 

17.1) enacted on July 17, 2003, significantly enhanced the 

rights of a property owner facing mechanics’ lien. In 

relevant part, § 34-28-17.1(a) provides that any owner, 

contractor, or other interested party who alleges: 

“(1) that any person who has provided labor, materials or 

equipment or has agreed to provide funding, financing or 

payment for labor or materials or equipment refuses to continue 

to provide such funding, financing or payment for labor 

materials [sic] solely because of the filing or recording of a notice 

of intention; or (2) it appears from the notice of intention that 

the claimant has no valid lien by reason of the character of or 

the contract for the labor, materials or equipment and for which 

a lien is claimed; or (3) that a notice or other instrument has not 

been filed or recorded in accordance with the applicable 

provisions of § 34-28-1 et seq.; or (4) that for any other reason a 

claimed lien is invalid by reason or [sic] failure to comply with 

the provisions of § 34-28-1 et seq., then in such event, such 

person may apply forthwith to the superior court for the county 

where the land lies for an order to show cause why the lien in 

question is invalid, or otherwise void, or the basis of the lien is 

without probability of a judgment rendered in favor of the 

lienor.” Section 34-28-17.1(b) provides that such a show-cause 

order “shall be served upon the necessary parties no later than 

one week prior to the date of the scheduled hearing.” 29 

The court then reviewed the United States Supreme Court’s 

most recent analysis and treatment of procedural due process 

considerations as applied to prejudgment remedies. 30 In those 

cases, the United States Supreme Court deemed that the lack of 

an immediate post-deprivation property rights hearing rendered 

27. Id. at 805. 

28. See id. 

29. Id. 

30. Id. at 805-08 (citing Sniadach v. Family Finance Corp. of Bayview, 

395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.T. 

Grant Co., 416 U.S. 600 (1974)).

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the particular statutes at issue unconstitutional. 31 

The court then examined the Supreme Court’s most recent 

procedural due process case addressing prejudgment remedies, 

Connecticut v. Doehr. 32 In Doehr, the claimant, who was the 

plaintiff in an assault and battery civil action, sought to attach the 

defendant’s home to secure the potential judgment. 33 The 

Connecticut attachment statute in Doehr permitted the 

attachment of another’s real property without prior notice or 

hearing, after judicial review of an affidavit demonstrating 

probable cause to believe the plaintiff would win the underlying 

civil action . 34 The Doehr court, while recognizing the effect of the 

attachment of real property was not a “complete, physical, or 

permanent deprivation of real property,” and therefore, was “less 

than the perhaps temporary total deprivation” found in earlier 

cases, nonetheless held that the effects of the attachment, 

primarily the clouding of title, deprived the property owner of a 

“significant” property interest. 35 The Doehr court then applied a 

balancing test and concluded that the ex parte judicial review of 

the affidavit, along with the post-deprivation hearing, were 

insufficient to offset the property owner’s significant property 

interest. 36 As such, the Supreme Court held that the Connecticut 

attachment statute was unconstitutional as it violated the Due 

Process Clause. 37 

The Rhode Island Supreme Court applied the Doehr analysis 

to Gem’s argument that mechanics’ liens do not involve state 

action and are therefore not subject to the Fourteenth 

Amendment. 38 The court concluded that: 

Government officials provide “overt, significant 

assistance” in almost every step of the mechanics’ lien 

process. A town official records the notice of intention 

perfecting the lien. A town official records the notice of lis 

31. Id. 

32. 501 U.S. 1 (1991). 

33. See id. 

34. Id. at 5-7. “Though the claimant was not required to post a bond, the 

property owner could avail himself of a post-deprivation hearing to challenge 

the attachment.” Id. 

35. Id. at 11. 

36. Id. 

37. Id. at 24. 

38. 867 A.2d at 808-09.

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pendens. Prior to the show-cause hearing to determine 

whether the lien should be enforced for the amount 

claimed, a superior court clerk has a newspaper 

advertisement published giving notice to “all persons 

having a lien, by virtue of this chapter, or any title, claim, 

lease, mortgage, attachment, or other lien or 

encumbrance, or any unrecorded claim on all or any part 

of the same property” and issues direct citations to each 

person listed on the petition to enforce the lien. Finally, 

the court registry holds the cash payment or bond in the 

event that the property owner wishes to discharge the 

lien. Thus, the operation of our Mechanics’ Lien Law 

qualifies as state action within the broad sweep of 

Doehr. 39 

Having concluded that a mechanics’ lien involves state action, 

the court then turned to whether the amendment to the Statute 

violated the Rossis’ procedural due process rights. 40 It stated that: 

To determine whether a particular state statute 

complies with due process, we apply a balancing test first 

announced in Matthews v. Eldridge. . . . We balance: (1) 

the “consideration of the private interest that will be 

affected by the prejudgment measure”; (2) “an 

examination of the risk of erroneous deprivation through 

the procedures under attack and the probable value of 

additional or alternative safeguards”; and (3) giving 

“principal attention to the interest of the party seeking 

the prejudgment remedy, with, nonetheless, due regard 

for any ancillary interest the government may have in 

providing the procedure or foregoing the added burden of 

providing greater protections.” 41 

As to the first prong in the Matthews-Doehr analysis, the 

39. Id. at 809 (internal citations omitted). 

40. Id. at 809-18. The Fourteenth Amendment to the United States 

Constitution prevents states from depriving “any person of life, liberty, or 

property, without due process of law.” U.S. CONST. amend. XIV. Article 1, 

section 2 of the Rhode Island Constitution similarly provides “[no] person 

shall be deprived of life, liberty or property without due process of law.” R.I. 

CONST. art 1, § 2. 

41. Id. at 809 (quoting Doehr, 501 U.S. at 11).

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court concluded that the effect of the filing of the mechanics’ lien 

was to cloud the Rossis’ title to their property. 42 As to the second 

prong in the Matthews-Doehr analysis, the court analyzed the risk 

of erroneous deprivation under the amended statute and found 

that, as amended, the Statute offers several procedures to limit 

the risk of erroneous deprivations including: “a prompt postdeprivation 

hearing; a detailed sworn affidavit; the property 

owner’s ability to pay cash or post a bond to clear title; and the 

payment of costs and fees to the prevailing party.” 43 

The court stated that a swift post-deprivation hearing is an 

important factor in determining whether the procedural 

safeguards in place adequately limit the possibility of erroneous 

deprivation in that it allows the property owner to immediately 

challenge the deprivation. 44 The court found that “the language of 

§ 34-28-17.1 clearly affords a property owner a hearing “for an 

order to show cause why the lien in question is invalid, or 

otherwise void, or the basis of the lien is without probability of a 

judgment rendered in favor of the lienor.’” 45 The court continued 

that “[t]he question of when that hearing is to take place is critical 

in limiting the risk of erroneous deprivation: the more prompt the 

hearing, the less the risk of erroneous deprivation.” 46 The court 

concluded that even if and when the notice of intention is both 

mailed and recorded in the town’s land evidence records on the 

very same day, a property owner’s right to a prompt postdeprivation 

hearing, as under § 34-28-17.1, provides him or her 

with adequate due process protection. 47 

As to the third prong of the Matthews-Doehr analysis, the 

court examined Gem’s interest, accounting for any ancillary 

interest the government may have in providing or choosing to 

forego additional protections. 48 The court stated that the Rhode 

Island Mechanics’ Lien Law does recognize a preexisting interest 

for claimants whose work and materials have increased the value 

of an owner’s property. 49 “§ 34-28-1(a) makes any improvement 

42. Id. at 810. 

43. Id. 

44. Id. at 810-811. 

45. Id. at 811. 

46. Id. 

47. Id. at 812. 

48. Id. at 815. 

49. Id. at 816.

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and the land upon which the improvement sits ‘liable and . . . 

subject to liens for all the work done by any person . . . [as well as] 

for the materials used’ in the doing of any such improvement.” 50 

The court also discussed the state’s additional interest in “putting 

potential purchasers on notice of all claims to prevent the type of 

complex third-party disputes that inevitably would result from 

transfers of such property.” 51 

Finally, the court indicated that the state also had to consider 

the propriety of other statutory prejudgment liens. 52 The court 

noted that the state also has an interest in the constitutionality of 

the Mechanics’ Lien Law to the extent that a “holding to the 

contrary would render other statutory prejudgment liens 

constitutionally suspect – a situation that arguably might lead to 

chaos in the market place.” 

COMMENTARY 

In Gem Plumbing, the Rhode Island Supreme Court has 

articulated three major points that address constitutional, debtorcreditor 

and property law. First, the court followed precedent in 

holding that retroactive provisions of statutes are enforceable. 

Second, under Gem, property owners have now been accorded 

enhanced due process rights previously unavailable to them. 

Third, the court determined that § 34-28-17.1, which provides a 

post-deprivation hearing to the owner of real estate, is 

constitutional and follows the prevailing law in the area; it 

provides the owner adequate procedural due process rights. 53 

While the court did suggest that the legislature amend § 34-28- 

17.1 to provide a specific timeframe for the scheduling of the postdeprivation 

hearing, nevertheless, the court deemed that the 

amendment to the Statute was sufficient in providing the owner 

the necessary constitutional safeguards. 54 

50. Id. 

51. Id. at 817. 

52. Id. at 817 n.32. 

53. Id. at 818. 

54. Id.

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CONCLUSION 

The Legislature’s enactment of § 34-28-17.1 of the Rhode 

Island Mechanics’ Lien Law is constitutional under the 

Fourteenth Amendment to the U.S. Constitution and Article 1, 

section 2 of the Rhode Island Constitution in that it establishes 

adequate procedural due process safeguards for property owners. 

William J. Delaney* 

* Adjunct Professor of Law, Roger William University School of Law. 

A.B. University of Notre Dame, 1976; M.B.A. Rensselaer Polytechnic 

Institute, 1979; J.D. Albany Law School of Union University, 1983; LL.M. 

American Banking Law Studies, Morin Center for Banking and Financial 

Law, Boston University School of Law, 1991. I would like to acknowledge my 

appreciation to my Spring Semester, 2005 Bankruptcy Class, and the 

opportunity to participate in this Survey of Rhode Island Law through the 

invitation of Mary H. Hayes. Finally the Author wishes to acknowledge his 

colleagues at Tillinghast Licht LLP for their collective assistance provided to 

him in preparing this project, especially the work of Muriel Morrison, Debbie 

DeSisto and Jeanine Mathieu.

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Constitutional Law. In re Advisory Opinion to the House of 

Representatives (Casino II), 885 A.2d 698 (R.I. 2005). At the 

request of the House of Representatives of the State of Rhode 

Island, the Rhode Island Supreme Court issued an advisory 

opinion regarding the constitutionality of pending legislation, 

titled “Establishment and Extension of Gambling Activities and 

Other Facilities” (the proposed Casino Act). The court found that 

the important constitutional questions posed by the House of 

Representatives warranted consideration. After examining Rhode 

Island’s constitutional requirement that the state must operate all 

casino gaming facilities, the court indicated that the proposed 

Casino Act did not comport with the constitutional provision. 

However, the court found that the proposed Casino Act complied 

with the state constitutional mandate requiring a statewide and 

municipal referendum. Finally, the court declined to answer the 

remaining two questions concerning the constitutionality of the 

proposed legislation on either federal or state constitutional equal 

protection grounds. 


The Rhode Island Supreme Court delivered this advisory 

opinion during an ongoing political tug-of-war. In 2004, both 

houses of the General Assembly passed a bill entitled The Rhode 

Island Gaming Control and Revenue Act (Casino Act). 1 However, 

Donald L. Carcieri, the Governor of Rhode Island, vetoed the 

legislation. 2 Governor Carcieri subsequently sent a request to the 

Rhode Island Supreme Court, seeking an advisory opinion 

concerning the constitutionality of the 2004 Casino Act. 3 

Meanwhile, three-fifths of the legislature voted to override the 

Governor’s veto. 4 The court then issued an advisory opinion, 5 

1. In re Advisory Opinion to the House of Representatives (Casino II), 

885 A.2d 698, 699 (R.I. 2005) (citing R.I. GEN. LAWS § 41-9.1-1 (Supp. 2004)). 

2. Id. 

3. Id. 

4. Id. 

5. In re Advisory Opinion to the Governor (Casino I), 856 A.2d 320 (R.I. 

775

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which determined that the 2004 Casino Act violated the state 

constitution, because the casino would not be abiding by Article 

VI, Section 15. 6 In 2005, the House of Representatives introduced 

legislation which sought to revise chapter 9.1 of title 41, the 

proposed Casino Act. 7 The enactment, entitled “Establishment 

and Extension of Gambling Activities and Other Facilities” would 

amend the 2004 Casino Act. 8 Rather than vote on this newly 

proposed Casino Act, the House of Representatives submitted the 

following four questions to the Rhode Island Supreme Court for an 

advisory opinion: 9 

(1)Would the proposed act, if duly enacted into law and 

approved by the electors of the state and town of West 

Warwick, comply with the requirement of Article VI, 

Section 15 of the Constitution of the State of Rhode 

Island and Providence Plantations that all lotteries 

permitted in Rhode Island be operated by the state 

(2) Would the proposed act, if duly enacted into law and 

approved by the majority of the electors of the state and 

the majority of the electors of the town of West Warwick 

at the special election provided for by the proposed act, 

comply with the provisions of Article VI, Section 22 of the 

Constitution of the State of Rhode Island and Providence 

Plantations requiring a statewide and municipal 

referendum to become effective 


approved by the electors of the state and the town of West 

Warwick, violate the equal protection clause of Article I, 

Section 2 of the Constitution of the State of Rhode Island 

and Providence Plantations, in (a) granting to the 

Narragansett Indian Tribe and its chosen partner the 

right to enter into an exclusive contract as casino service 

provider; or (b) in providing that the state retain a share 

2004). 

6. See generally Casino I, 856 A.2d 320 (citing R.I. CONST. art VI, § 15). 

7. Casino II, 885 A.2d at 700. 

8. Id. at 699-700. 

9. Chief Justice Williams, Justice Suttell, and Justice Robinson signed 

the advisory opinion, while Justices Goldberg and Flaherty did not 

participate. Id. at 715.

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of net casino gaming income that is different from the 

share of net income that the state retains from other 

gambling facilities in the state 


approved by the electors of the state and the town of West 

Warwick, be violative of the equal protection clause of 

Amendment XIV, Section 1 of the Constitution of the 

United States, in (a) granting to the Narragansett Indian 

Tribe and its chosen partner the right to enter into an 

exclusive contract as casino service provider; or (b) in 

providing that the state receive a share of net casino 

gaming income that is different from the share of net 

income that the state receives from other gambling 

facilities in the state[] 10 

After the House of Representatives submitted these 

questions, the court issued In re Request for Advisory Opinion 

from the House of Representatives, 11 which created an expedited 

briefing and oral argument period. 12 The House of 

Representatives, Governor Carcieri, and the Attorney General 

submitted briefs explaining their positions. 13 Lincoln Park, Inc. 

(Lincoln Park), Newport Grand Jai Alai, LLC (Newport Grand), 

the Town of West Warwick, and, jointly, Harrah’s Entertainment, 

Inc. (Harrah’s), and the Narragansett Indian Tribe (Tribe) each 

filed amicus curiae briefs. 14 


Before issuing this advisory opinion, the court explained that 

when a court issues an advisory opinion, the justices are speaking 

in their “individual capacities as legal experts” rather than as 

justices of the court. 15 Because of this distinct role, the justices 

shall not exercise any fact-finding power. 16 As such, the court 

established that the advisory opinion had no force of law and was 

10. Id. at 700. 

11. 875 A.2d 445 (R.I. 2005) (mem). 

12. Casino II, 885 A.2d at 700. 

13. Id. 

14. Id. 

15. Id. at 701 (quoting Casino I, 856 A.2d at 323). 

16. Id. (citing Casino I, 856 A.2d at 323).

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not binding. 17 

Prior to discussing the constitutionality of the proposed 

Casino Act, the court initially determined whether to issue an 

advisory opinion in response to the House of Representatives’ 

questions. 18 Article X, Section 3 of the Rhode Island Constitution 

obligates the Supreme Court judges to issue a written opinion 

“upon any question of law whenever requested by the governor or 

by either house of the general assembly.” 19 In other words, if the 

General Assembly has a question concerning the constitutionality 

of pending legislation, or if the Governor has a question 

concerning the constitutionality of existing statutes, the Supreme 

Court must issue an advisory opinion on the matter. 20 

The court acknowledged its obligation to render an advisory 

opinion, but also expressed concern about issuing the opinion. 21 

The court evinced hesitation because of the legislation’s “largely 

undeveloped and inchoate state” and noted several concerns. 22 

One necessary technical revision for the proposed Casino Act was 

that the Lottery Commission, the original entity designated to 

operate the proposed casino, had been abolished and subsequently 

replaced by the State Lottery Division of the Department of 

Administration (Division). 23 While this technicality did not 

change the court’s analysis, the court nonetheless suggested this 

modification to the House of Representatives. 24 A second 

complication involved a sunset clause, contained in the proposed 

legislation, which nullified the entire statute on November 8, 

2005, if there was no “majority statewide and local approval of the 

statute at a special election.” 25 Given the approaching deadline, 

the court acknowledged its late receipt of this request as well as 

the court’s timely response. 26 Furthermore, the proposed Casino 

Act directed the Division to enter into a master casino service 

17. Id. (citing Casino I, 856 A.2d at 323). 

18. Id. at 701-702. 

18. Id. at 701. 

19. Id. (citing Casino I, 856 A.2d at 323 (quoting R.I. CONST. art 10 § 3)). 

20. See id. at 701-02. 

21. Id. 

22. Id. 

23. Id. at 701. 

24. Id. at 701-02. 

25. Id. at 702. 

26. Id.

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contract with the casino provider. 27 Therefore, the proposed 

Casino Act would not be the final statement of the rights and 

responsibilities of the parties. 28 Yet, despite the proposed Casino 

Act’s flaws and ambiguities, the Supreme Court adhered to its 

constitutional obligation to issue the advisory opinion. 29 

Question One: State Operation 

The Rhode Island Constitution prohibits all lotteries except 

those operated by the state. 30 The first question under review was 

whether the proposed Casino Act complied with this mandate. 31 

While the General Assembly has plenary power to legislate on all 

matters relating to gambling, the Supreme Court interprets the 

statutes which determine the constitutionality of the legislation. 32 

Thus, the court would uphold proposed legislation that vested 

operational control of the casino in the Division. 33 

The court first examined the issue of non-slot games, or table 

games. 34 The proposed Casino Act appeared to grant the Division 

total control in determining and approving the type of table 

games. 35 However, the Division’s powers were overcome by the 

requirement that the Division “shall permit the casino service 

provider to conduct. . .any [table game] that is regularly conducted 

at any other casino gaming facility.” 36 The court opined that as a 

result, the Division would have no control over what table games 

would be played at the casino. 37 The court found that this was 

inconsistent with the constitutional requirement that the state 

have all decision-making power concerning the functioning of the 

casino. 38 

27. Id. 

28. Id. 

29. See id. 

30. Id. at 703 (citing R.I. CONST. art. 6 § 15). 

31. Id. at 700. 

32. Id. at 703 (citing Payne & Butler v. Providence Gas Co., 77 A. 145 

(R.I. 1910)). 

33. See id. 

34. Id. at 703-04. 

35. Id. 

36. Id. at 704 (quoting H.R. 41-9.2-8(a)(19)(ii), 119th Gen. Assem., Reg. 

Sess. (R.I. 2005) (proposed) (emphasis added)). 

37. Id. 

38. Id. (citing Casino I, 856 A.2d at 331).

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Second, the court examined the extension of credit to patrons 

of the proposed casino. 39 The proposed Casino Act permitted the 

casino service provider to tender credit to patrons as a cash 

advance, in return for a “negotiable instrument of the same 

value.” 40 The plain language of the provision did not extend any 

control over credit to the Division. 41 Rather, control of credit 

would belong strictly to the casino service provider. 42 As such, the 

court decided that the extension of credit provision did not satisfy 

the constitutional requirement that every aspect of the casino’s 

operation must be vested in the state. 43 

Moreover, the enforceability of the proposed agreement 

between the Division and the casino service provider troubled the 

court. 44 Tribes are generally immune from suits on contracts, 

regardless of whether they involve governmental activity. 45 Thus, 

sovereign immunity threatened to undermine all state operational 

control of the proposed casino. 46 Although the Tribe expressly 

stated at oral argument that the Tribe would be willing to waive 

sovereign immunity from the master casino service contract, the 

court noted that it was uncertain whether this waiver would 

become part of the written contract. 47 The court highlighted, in a 

footnote, that this uncertainty served as an additional example of 

the inchoate nature of the legislation. 48 Hence, the issue of 

sovereign immunity threatened to undermine every aspect of the 

state’s control of the casino. 49 

Fourth, the proposed Casino Act directed the Division to enter 

into a master casino contract with the casino provider, and therein 

defined the casino service provider as “an entity composed of the 

Narragansett Indian Tribe and its chosen partner.” 50 The court 

39. Id. at 704-05. 

40. Id. at 704 (quoting H.R. 41-9.2-3(5), 119th Gen. Assem., Reg. Sess. 

(R.I. 2005) (proposed)). 

41. Id. 

42. Id. 

43. Id. at 704-05. 

44. Id. at 705. 

45. Id. 

46. Id. (citing Kiowa Tribe of Ok. v. Mfg. Tech., Inc., 523 U.S. 751 (1998)). 

47. Id. 

48. Id. at 705 n.6. 

49. Id. at 706. 

50. Id. (quoting H.R. 41-9.2-2(1), 119th Gen. Assem., Reg. Sess. (R.I. 

2005) (proposed) (emphasis added)).

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reasoned that this provision bestowed only regulatory power, 

rather than operational power, over the most fundamental aspects 

of the casino, namely choosing the casino service provider. 51 Thus, 

the Division would retain the equivalent of a veto power over the 

Tribe. 52 This veto power amounted to significantly less than 

complete operational control of all aspects of the casino, and, in 

turn, was violative of the state constitution. 53 

Furthermore, the court discussed the relationship of the 

operational issues to the nondelegation doctrine, as the issues 

were inexorably intertwined. 54 The nondelegation doctrine serves 

two purposes: it ensures that the public is protected from 

discriminatory and arbitrary actions of public officials, and it 

assures that politically accountable officials make fundamental 

policy decisions. 55 In this instance, particularly concerning the 

table games issue, the proposed Casino Act would violate the 

nondelegation doctrine. 56 The court reasoned that the standard to 

approve any table game that already exists in another casino 

amounted to no standard at all, and consequently, lacked all 

protection against potentially arbitrary or discriminatory actions 

by the casino provider. 57 

In addition, the court found it important to highlight that the 

proposed Casino Act would impart greater control to the Division 

than the 2004 Casino Act would have. 58 The court acknowledged 

express grants of authority: for example, that the casino would 

collect money on behalf of the Division, which would then be 

transferred into the state’s bank account, whereupon the state 

would distribute the funds accordingly. 59 The court also 

acknowledged a catch-all provision, in which the proposed Casino 

Act bestowed all other necessary and proper powers to the 

Division for effective administration of the casino. 60 However, this 

51. Id. at 706-07. 

52. Id. at 706. 

53. Id. at 706-07. 

54. Id. at 707. 

55. Id. at 708 (citing Kaveny v. Cumberland Zoning Bd. of Review, 875 

A.2d 1, 11 (R.I. 2005) (citing R.I. CONST. art 6, § 15)). 

56. Id. 

57. Id. 

58. Id. at 708-09. 

59. Id. at 709. 

60. Id. at 711.

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broad necessary and proper provision could not override the 

express limitations contained in the proposed Casino Act that 

restricted the Division’s power. 61 Thus, the court concluded that 

the necessary and proper clause could not cure all of the 

constitutional defects discussed above. 62 

Finally, the court recognized the arguments in the briefs that 

distinguished the proposed Casino Act from Lincoln Park and 

Newport Grand, two constitutionally operated casino gaming 

facilities in Rhode Island. 63 Accordingly, the court expressly 

stated that any prior reference by the court regarding Lincoln 

Park or Newport Grand was not intended to establish a 

“constitutional baseline.” 64 In other words, newly proposed 

casinos need not imitate these two contemporary casinos in order 

to achieve constitutionality. 65 

Therefore, in response to the House’s first question, and while 

giving a reasonable presumption of constitutionality to the 

proposed legislation, the court ultimately found that the state 

could not completely operate a casino gaming facility if it could not 

control the type of non-slot table games, control or deny the 

extension of credit, choose a casino service contract provider, and 

protect its contractual rights by requiring the Tribe’s absolute 

waiver of sovereign immunity. 66 

Question Two: The Referendum 

The court then reviewed the second question, concerning the 

constitutionality of the proposed referendum. 67 Article VI, Section 

22 of the state constitution prohibits gambling within a state or 

municipality unless the gambling activity has been approved by 

the “majority of those electors voting in a statewide referendum 

and by the majority of those electors voting in a referendum in the 

municipality in which the proposed gambling would be allowed.” 68 

The proposed Casino Act had two requirements: It would require a 

61. Id. 

62. Id. 

63. Id. at 711-12. 

64. Id. at 711. 

65. Id. 

66. Id. at 712. 

67. Id. 

68. Id. (quoting R.I. CONST. art. 6, § 22).

CASINO 

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statewide special election of a referendum that would ask whether 

the state should operate a casino gaming facility in West 

Warwick, 69 and, it would require that prior to this statewide 

referendum, the Lottery Division would certify to the Secretary of 

State a “statement of intent” filed by the casino service provider, 

stating, in essence, that the West Warwick Town Council had 

agreed to place the question on the special election ballot. 70 The 

court answered that if both requirements were carried out, and 

both statewide and local approval was gained, then Article VI, 

Section 22 of the state constitution would be satisfied. 71 

Additionally, the court responded in the affirmative to the 

question of whether the requirement may be met by a referendum 

at a special election instead of a general election. 72 The court 

concluded that it was of no constitutional significance whether the 

question was posed in a special election or as part of a general 

election. 73 

Questions Three and Four: Equal Protection 

The court declined to answer the third and fourth questions in 

the context of an advisory opinion. 74 First, the proposed statute 

failed to comport with the constitutional requirement that the 

casino must be operated by the state. 75 Second, in order to 

properly analyze the equal protection issues, the court requires a 

factual record, which is unavailable in an advisory opinion. 76 As a 

result, the court respectfully declined to answer the 

constitutionality of the proposed Casino Act in either the federal 

or state equal protection constitutional frameworks. 77 The court 

remarked that it was not violating its constitutional duty to issue 

an advisory opinion when asked, but instead was acquiescing to 

the reality that sometimes issues cannot be properly answered 

69. Id. 

70. Id. 

71. Id. 

72. Id. at 713. 

73. Id. 

74. Id. at 713-14. 

75. Id. at 713. 

76. Id. at 713-14. 

77. Id. at 714.

CASINO 

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without accompanying facts. 78 

COMMENTARY 

The proposed legislation in question contained a series of 

flaws due to its largely undeveloped state. Before proceeding, the 

court noted several of these oversights to provide guidance to the 

legislature. Yet, notwithstanding the imperfect condition of the 

legislation, the court heeded its constitutional duty and properly 

issued an advisory opinion. Some may consider the court’s action 

an unjust interference with the population’s right to vote on an 

important state-wide issue. However, had the court allowed the 

legislation to be placed before the voters in a statewide 

referendum, a constitutional emergency may have ensued. 

The majority of the voters could have voted in favor of an 

unconstitutional casino. Had they voted in this manner, 

opponents of the casino would have ultimately challenged the 

constitutionality of the “yes” vote. At this point, the court would 

be faced with the same questions presented initially during the 

House of Representatives’ request for an advisory opinion. Had 

the court waited, it not only would have had to decide the 

constitutional merits of the proposed Casino Act, it also would 

have been faced with overturning a decision made by the people of 

Rhode Island in their election booths. At this later date, the court 

would be forced to finally determine that the proposed Casino Act 

violated the constitutional mandate that all lotteries, including 

casino gaming facilities, be operated fully by the state. It is fair to 

assume that if the legislation had made it to the voting booths, 

both opponents and proponents of the proposed Casino Act would 

be up in arms, because each group would likely have devoted 

significant time and money toward the casino campaign in vain. 

Furthermore, although the resultant advisory opinion may 

seem like a victory for Governor Carcieri and other casino 

opponents, the court’s ruling has little practical effect on the 

casino effort. Regardless of the court’s decision, the legislature 

would have had to redraft the legislation in any case. For 

instance, any chance of having a special election in November, 

2005, was lost when the House waited until May to seek an 

78. Id.

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advisory opinion, and the court could not hear arguments until 

August. 79 Nonetheless, the court understood its judicial 

responsibility to respond to constitutional questions posed by the 

House of Representatives, as well as to prevent any ensuing 

equivocation that the state might have otherwise experienced, and 

properly issued an advisory opinion explaining how the legislature 

failed to meet constitutional requirements. 

CONCLUSION 

Despite the emergent state of the proposed legislation, as well 

as the court’s initial hesitance upon taking up these issues in the 

form of an advisory opinion, the proposed Casino Act and the 

debate surrounding its constitutionality called for judicial 

intervention. For the second time in two years, the Rhode Island 

Supreme Court found the General Assembly’s effort to construct a 

bill enabling a casino referendum to go before voters 

unconstitutional. After noting, in 2004, that the word “operate” 

means the power to make decisions about all aspects of the casino 

gaming facility, the court found that the 2005 legislation failed to 

meet this constitutional requirement. 80 Under the proposed 

Casino Act, the new legislation left too much power with the 

casino service provider, and did not grant the state exclusive 

operating authority over the casino. 81 However, the court found 

that a special election would meet the constitutional requirement 

for a referendum. 82 Finally, the court declined to answer two 

other questions, regarding whether it was permissible to treat a 

casino different from slot machine parlors already in place in the 

state, because these questions would require fact-finding, which is 

an impermissible court function during an advisory opinion. 83 

Margreta Vellucci 

79. See id. at 700-01. 

80. Id. at 703-04. 

81. Id. at 703-10. 

82. Id. at 712-13. 

83. Id. at 713-14.

MCKENNA 

5/15/2006 7:11 PM 

State Constitutional Law. McKenna v. Williams, 874 A.2d 

217 (R.I. 2005). An attorney and his law practice lacked standing 

to maintain an action to remove a public official from office. An 

action to remove a public official from office was a petition in 

equity in the nature of quo warranto over which the Superior 

Court lacked subject matter jurisdiction without the intervention 

of the Attorney General. Rhode Island’s constitutional prohibition 

against state officials holding dual offices did not apply to an 

appointed member of the Rhode Island Supreme Court. 


On September 21, 2004, Chief Justice Frank Williams, of the 

Rhode Island Supreme Court, was sworn in as a member of a 

military review panel, a federal position with the United States 

Department of Defense. 1 Attorney Keven A. McKenna and his law 

practice, Keven A. McKenna, P.C., filed suit in the Providence 

County Superior Court under the Uniform Declaratory Judgments 

Act (R.I.Gen. Laws § 9-30-1 et seq.), (1) alleging that the Chief 

Justice had vacated his seat on the Rhode Island Supreme Court 

by accepting appointment to the military review panel; (2) seeking 

a declaratory judgment to that effect; and (3) requesting 

preliminary and permanent injunctions restraining the Chief 

Justice from occupying his seat on the court. 2 Additionally, the 

plaintiffs sought injunctions restraining the Governor “from not 

notifying the R.I. Judicial Nominating Commission of the vacancy 

in the Office of the Chief Justice,” restraining the Chair of the 

Rhode Island Judicial Nominating Commission “from not 

submitting eligible names of nominees to the office of the Chief 

Justice of the Supreme Court to the Governor of the State of 

Rhode Island,” and restraining the State Treasurer “from issuing 

salary checks to [the Chief Justice].” 3 

1. McKenna v. Williams, 874 A.2d 217, 221 (R.I. 2005). 

2. Id. at 220-21. 

3. Id. at 221. 

787

MCKENNA 



On April 26, 2005, the Presiding Justice of the Superior 

Court, pursuant to the provisions of Rhode Island General Laws 

§§ 8-2-4 and 8-2-23, appointed three members of that court “to be 

a quorum for the purpose of presiding over the preliminary 

motions and trial” of the case. 4 The defendants moved to dismiss 

pursuant to the Rhode Island Superior Court Rule of Civil 

Procedure 12(b)(6). 5 Additionally, the defendants sought a stay of 

all proceedings pending a determination by the Superior Court 

that the plaintiffs had standing to bring their claims. 6 

On May 11, 2005, the three-justice panel of the Superior 

Court reasoned that the Uniform Declaratory Judgments Act 

“provides that the Superior Court, upon petition, shall have power 

to declare rights, status and other legal relations, whether or not 

further relief is or could be claimed,” and that “[f]urther, § 9-30-12 

declares the act to be remedial and to be liberally construed and 

administered in order to afford relief from uncertainty and 

insecurity with respect to rights, status and other legal relations.” 7 

Based on this reasoning, the panel found that the plaintiffs did, 

indeed, have standing. 8 

The defendants petitioned the Rhode Island Supreme Court 

for certiorari, which the court granted on May 13, 2005. 9 The 

defendants argued: (1) that the plaintiffs lacked standing to bring 

their claims; (2) that the Superior Court lacked subject-matter 

jurisdiction over the plaintiffs’ claims; and (3) that article 3, 

section 6 of the state constitution did not apply to the Chief 

Justice. 10 


The court held: (1) that the plaintiffs lacked standing to 

maintain an action to remove the Chief Justice from office; (2) that 

the plaintiffs’ action to remove the Chief Justice was a petition in 

equity in the nature of quo warranto over which the Superior 

Court lacked subject-matter jurisdiction without the intervention 

4. Id. at 221-22. 

5. Id. at 222 (citing R.I. SUP. R. CIV. P. 12(b)(6)). 

6. Id. 

7. Id. at 223-24. 

8. Id. 

9. Id. at 224. 

10. Id. at 224-25.

MCKENNA 



of the Attorney General; and (3) that Rhode Island’s constitutional 

prohibition against state officials holding dual offices did not apply 

to the Chief Justice, an appointed member of the Rhode Island 

Supreme Court. 11 

A. Standing 

The court held that the plaintiffs, Keven A. McKenna, Esq. 

and his law practice, Keven A. McKenna, P.C., lacked the 

requisite standing to bring an action to remove the Chief Justice 

from office. 12 An analysis of standing should focus on the 

claimant, not the claim. 13 Thus, the court focused on the 

plaintiffs, not on the issues sought to be determined. 14 In Rhode 

Island Opthalmological Society v. Cannon, 15 the court articulated 

the notion that standing requires a plaintiff to allege that “the 

challenged action has caused him injury in fact, economic or 

otherwise.” 16 In Pontbriand v. Sundlun, 17 the Court explained 

that the injury in fact must be “concrete and particularized . . . 

actual or imminent, not ‘conjectural’ or ‘hypothetical.’” 18 

Furthermore, “[t]he line is not between a substantial injury and 

an insubstantial injury. The line is between injury and no 

injury.” 19 

Standing is a prerequisite for actions at law, actions in equity, 

and claims for declaratory relief. 20 The Superior Court “is without 

jurisdiction under the Uniform Declaratory Judgments Act unless 

it is confronted with an actual justiciable controversy,” 21 which 

requires a plaintiff to have (1) standing and (2) an entitlement to 

real and articulable relief. 22 The court held that the plaintiffs 

11. Id. at 238-39. 

12. Id. at 228. 

13. Id. at 225-26. 

14. Id. 

15. 317 A.2d 124 (R.I. 1974). 

16. Id. at 128. 

17. 699 A.2d 856 (R.I. 1997). 

18. Id. at 862. 

19. Id. (quoting Matunuck Beach Hotel, Inc. v. Sheldon, 399 A.2d 489, 

494 (1979)). 

20. McKenna, 874 A.2d at 226. 

21. Id. 

22. Id.

MCKENNA 



failed to meet either element of justiciability. 23 

The court held that the plaintiffs had failed to “articulate[] a 

stake in the outcome of this controversy . . . distinguishable from 

that of other members of the bar or the public.” 24 The court 

reasoned: 

[The Plaintiffs’] subjective enthusiasm does not overcome 

the glaring jurisdictional deficiencies in this case. Nor 

are we persuaded that plaintiffs’ stated fear of an entirely 

speculative and hypothetical malpractice claim that 

might be brought if he did not pursue this action supplied 

the standing component of justiciability. Unfounded 

anxiety or a vague fear based on utterly speculative 

hypothesis is simply not enough. 25 

The court concluded by citing several cases for the proposition 

that the Attorney General is the appropriate party to bring an 

action to remove a public official from office. 26 The court 

continued: McKenna “is neither a roving prosecutor nor an 

Attorney General without portfolio, but a lawyer engaged in the 

private practice of law . . . . “ 27 Consequently, the court held, the 

plaintiffs were without standing to maintain an action to remove 

the Chief Justice from office. 28 

B. Subject Matter Jurisdiction 

The court next addressed the Superior Court’s subject matter 

jurisdiction, holding that the Superior Court had lacked the 

requisite subject matter jurisdiction to entertain the plaintiffs’ 

action “[b]ecause an action to test one’s title to office is an action 

in quo warranto and the Superior Court’s jurisdiction to entertain 

the claim is limited. . . . The Superior Court’s jurisdiction to 

entertain an action in quo warranto is strictly limited to actions 

brought by the Attorney General . . . .” 29 

23. Id. 

24. Id. 

25. Id. at 227. 

26. Id. at 227-28 (citing Marshall v. Hill, 93 A.2d 524, 526 (Del. Super. 

Ct. 1952); Brush v. City of Mount Vernon, 20 N.Y.S.2d 455, 456 (N.Y. Sup. 

Ct. 1940); Jones v. Talley, 230 S.W.2d 968, 970-71 (Tenn. 1950)). 

27. Id. at 228. 

28. Id. 

29. Id.

MCKENNA 



Rhode Island General Law § 8-2-16 vests the Superior Court 

with concurrent jurisdiction with the Supreme Court “to hear any 

proceeding upon a writ of quo warranto or an information in the 

nature of quo warranto”; 30 however, because “such claims seek to 

enforce a public right and the relief it affords is the ouster of the 

incumbent from office[,] . . . those claims may only be brought by 

the Attorney General on behalf of the state . . . .” 31 The court 

explained: 

A private citizen who questions the right of an incumbent 

to hold office may employ only a petition in equity in the 

nature of quo warranto, and jurisdiction over such 

petitions is exclusively vested in the Supreme Court. . . . 

A petition in equity in the nature of quo warranto may be 

brought by a private individual who asserts that he or she 

has a right to the office at issue; and pursuant to G.L. 

1956 § 10-14-1, the Supreme Court has exclusive 

jurisdiction to entertain such a claim. 32 

Thus, only a plaintiff claiming title to the challenged office 

may proceed without intervention from the Attorney General, and 

only in the Supreme Court. 33 

In order to reach its result, the court reclassified the 

plaintiffs’ petition for a declaratory judgment as a petition in 

equity in the nature of quo warranto “over which the Superior 

Court has no subject matter jurisdiction.” 34 The court reasoned 

that it “has consistently rejected claims that sounded in quo 

warranto but were otherwise disguised.” 35 The court concluded by 

holding that the plaintiffs could not maintain their action in the 

Superior Court without the Attorney General’s intervention; nor 

could the plaintiffs bring a petition in equity in the nature of quo 

30. Id. at 229. 

31. Id. 

32. Id. 

33. Id. 

34. Id. at 229-30. 

35. Id. (citing Brennan v. Butler, 47 A. 320, 320 (R.I. 1900) (writ of 

mandamus); Fargnoli v. Cianci, 397 A.2d 68, 71 (R.I. 1979) (class action for 

injunctive relief); State ex rel. Webb v. Cianci, 591 A.2d 1193, 1194-95 (R.I. 

1991) (information in the nature of quo warranto by a private citizen); State 

v. Storms, 311 A.2d at 567, 570-71 (R.I. 1973) (action by defendants in a 

criminal case)).

MCKENNA 



warranto in the Supreme Court because neither plaintiff claimed 

a right to the office of the Chief Justice. 36 

C. Article 3, Section 6 of the State Constitution 

Although noting that its holdings as to standing and subjectmatter 

jurisdiction were determinative of the case, the court 

stated that the public importance of “a direct challenge to an 

official’s title to office” compelled it to address the merits of the 

case. 37 The court framed the issue before it as “whether, in the 

context of this case, as an appointed (and not elected) member of 

this court, Chief Justice Williams falls within” 38 the provisions of 

the state constitution providing that “if any . . . judge [shall,] 

after . . . election and engagement, [have] accepted any 

appointment under any other government, then his office shall be 

immediately vacated.” 39 

Giving the words of the constitution their ordinary meaning, 

the court concluded that “article 3, section 6, no longer applies to 

the justices of [the] court because [they] are no longer elected to 

[their] positions. . . . [B]y its clear language, article 3, section 6, is 

restricted to those enumerated state officials who, ‘after election 

and engagement, accept any appointment under any other 

government . . . .’” 40 

In 1994, article 10, section 4 of the Rhode Island Constitution 

was amended so that, rather than being elected, the justices of the 

Supreme Court would be appointed. 41 The court found “[t]he 

contrast between the former election provision and the current 

appointment provision of the state constitution . . . determinative 

of the issue before [the] Court.” 42 The court reached the 

“inescapable conclusion that, as appointed justices to the Supreme 

Court, the prohibition against dual office holding in article 3, 

section 6, no longer applies to the members of [the Supreme] 

Court.” 43 

36. Id. at 230. 

37. Id. at 230-31. 

38. Id. at 231. 

39. R.I. CONST. art. 3, § 6. 

40. McKenna, 874 A.2d at 232. 

41. Id. 

42. Id. at 232-33. 

43. Id. at 235.

MCKENNA 



COMMENTARY 

Although acknowledging that its holding regarding the 

plaintiffs’ standing and the Superior Court’s subject-matter 

jurisdiction were determinative of the plaintiffs’ case, the court 

chose to address the merits of the plaintiffs’ claim as well, because 

of the “public importance that attaches to such a direct challenge 

to an official’s title to office.” 44 Although twice stating the “public 

importance” 45 of the issue presented, the court did not detail the 

reasons for addressing the merits of the plaintiffs’ claim beyond 

agreeing with the amici curiae that it should do so “‘for reasons of 

equity and judicial efficiency.’” 46 Beyond settling any doubt as to 

the office of the Chief Justice, there are two likely reasons for the 

court addressing the merits of the plaintiffs’ claim: first, the 

possibility that the court would have to address the issue in the 

future; and second, a failure of the court to adjudicate the matter 

could have left determination of the issue to the military 

commission. 47 

The court’s holdings as to standing and subject matter 

jurisdiction, without addressing the merits of the plaintiffs’ claim, 

would have left open the possibility, albeit limited, of a future 

attack on the office of the Chief Justice. After the court’s holdings 

as to standing and subject-matter jurisdiction, even a private 

individual with the requisite standing would be unable to bring a 

claim in the Superior Court for want of that court’s subject matter 

jurisdiction. The only way for a private individual to challenge 

the office of the Chief Justice would be to bring a claim in the 

Rhode Island Supreme Court by claiming a right to that office. 

Thus, the ability of the state’s “approximately 6,500 attorneys who 

can bring cases before the R.I. Supreme Court involving the same 

constitutional and ethical dilemma facing the Plaintiffs,” 48 even 

44. Id. at 230. 

45. Id. 230-31. 

46. Id. at 231 n.12. 

47. Brief for Salim Ahmed Hamden, et al. as Amici Curiae Supporting 

Respondents at 4-7, McKenna v. Williams, 874 A.2d 217 (No. 05-144). 

48. Memo in Support of Preliminary Injunction at 3, McKenna v. 

Williams, 874 A.2d 217 (No. 05-144).

MCKENNA 



those suffering an adverse decision from Chief Justice Williams, 

would be severely limited, but not impossible. The court’s decision 

to address the merits of the plaintiffs’ claims thus eliminated any 

possibility of having to do so in the future, and at the same time, 

eliminated any doubt as to the status of the office of the Chief 

Justice. 

The court did not address whether its failure to adjudicate the 

matter could have left determination of the issue to the military 

commission. The amici curiae did, however, address this issue in 

their brief, 49 stating that “[a]n adjudication of whether Chief 

Justice Williams violated the Rhode Island dual officeholding ban 

is inevitable. . . . A challenge to Chief Justice Williams’ fitness to 

serve could be filed by any of the military commission defendants 

as a pre-trial motion.” 50 Such a pre-trial motion would place the 

military commission, of which two of three commissioners are not 

lawyers, 51 in the position of “consider[ing] the Rhode Island dualofficeholding 

question”: 52 whether Chief Justice Williams was 

properly “qualified” 53 and whether Chief Justice Williams violated 

the Rhode Island Constitution. 54 The court’s failure to address the 

merits of plaintiffs’ claim would, in such circumstances, leave the 

military commission in Cuba to decide this issue of Rhode Island 

constitutional law without guidance because “[u]nfortunately, no 

certification procedure is available from a military commission” 55 

to the Rhode Island Supreme Court, “the body with the greatest 

expertise and ability to answer it.” 56 

The court’s treatment of the merits rests on the statutory 

construction of state constitutions, a topic which has received 

varying degrees of academic and judicial treatment over the years, 

from Justice Brennan’s impassioned plea for independent 

49. Brief for Salim Ahmed Hamden, et al. as Amici Curiae Supporting 

Respondents at 4-7, McKenna v. Williams, 874 A.2d 217 (No. 05-144). 

50. Id. at 4-5. 

51. Id. at 5. 

52. Id. 

53. Id. 

54. Id. at 6 (citing MODEL CODE OF JUDICIAL CONDUCT Cannon 2 (2004); 

R.I. CODE OF JUDICIAL CONDUCT Canon 2.A. (2000)). 

55. Id. at 7 (citing R.I. SUP. R. 6 (limiting certification to requests from 

the U.S. Supreme Court, U.S. Courts of Appeal, and U.S. District Courts)). 

56. Id.

MCKENNA 



construction, 57 through interceding years when many state courts 

generally marched in lockstep with the United States Supreme 

Court, 58 to a relatively recent resurgence in individual state 

identity and more individualized interpretations by state courts. 59 

The Rhode Island Supreme Court has had a number of 

opportunities to interpret various provisions of the Rhode Island 

Constitution, but to date no clear pattern of interpretation has 

emerged. 60 In McKenna, the Rhode Island Supreme Court dealt 

with the Rhode Island Constitution’s dual office holding 

provision. 61 

The court’s holding that the two provisions at issue in its 

analysis, article 3, section 6 (the dual office holding provision) and 

article 10, section 4 (changing the selection method of judges from 

election to appointment), could be harmonized is accurate; the 

manner in which the court did harmonize them is arguably 

inaccurate. The “inescapable” conclusion to which the court comes 

– namely, that justices of the state’s Supreme Court are no longer 

held to the constitutional prohibition against dual office holding, 62 

is entirely escapable, and tends to violate a fairly entrenched rule 

57. See generally William J. Brennan, Jr., State Constitutions and the 

Protection of Individual Rights, 90 HARV. L. REV. 489 (1977). 

58. James A. Gardner, The Failed Discourse of State Constitutionalism, 

90 MICH. L. REV. 761, 788-92 (1994). 

59. See generally, e.g., Michael Schwaiger, Understanding the 

Unoriginal: Indeterminate Originalism and Independent Interpretation of the 

Alaska Constitution, 22 ALASKA L. REV. 293 (2005); Thomas R. Bender, 

Toward a More Vigorous State Constitutionalism, 10 ROGER WILLIAMS U. L. 

REV. 621 (2005). 

60. There are three generally accepted methods of state constitutional 

interpretation. The first is lockstep, in which a state court generally 

interprets the provisions in its constitution to be coterminous with its federal 

counterparts. An interstitial approach favors looking first at the federal 

constitution unless some reason, such as a particularly unique provision or 

state culture or history demands an independent look. Finally, a primacy 

approach favors looking first to the state constitution, looking only to the 

federal constitution for persuasive authority in interpreting issues of state 

law. See Bender, supra note 59, at 628-632. 

61. The dual office holding provision of article 3, section 6 is not unique 

to Rhode Island. While the provision does not appear in the United States 

Constitution, it has counterparts in forty-one other state constitutions. 

Steven G. Calabresi and Joan L. Larsen, One Person, One Office: Separation 

of Powers or Separation of Personnel, 79 CORNELL L. REV. 1045, 1151-52 

(1994). 

62. McKenna, 874 A.2d at 235.

MCKENNA 



of statutory construction – that repeals by implication are 

disfavored. 63 Retired Associate Justice Robert Flanders, in an 

interview given after the court issued its opinion, stated that 

“‘[t]he general rule is that repeals by implication are disfavored. 

The notion that when the legislature changed the way of selecting 

judges it intended to change the dual office holding ban is, in my 

judgment, a real stretch.’” 64 McKenna does not, however, mark the 

first time that such a repeal by implication has been effected, nor 

is the practice unique to the judicial branch of Rhode Island’s 

government. 

During the latter months of 2003, an apparent state 

constitutional inconsistency faced Rhode Island’s legislature. 

Operation Clean Government filed an ethics complaint against 

House Majority Leader Gordon Fox after he voted on legislation 

affecting a company with which Fox’s law firm did business. 65 At 

issue was article 6, section 4, a provision of the Rhode Island state 

constitution which provides: “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.” 66 Because Fox had billed hours as a private 

attorney in a matter pending before the General Assembly, the 

ethics complaint alleged that Fox had forfeited his seat in the 

House of Representatives. 67 House Speaker William Murphy 

opposed seeking an advisory opinion from the Supreme Court on 

the constitutional question, 68 though he had sought just such an 

opinion when controversy had erupted during the reign of the 

previous speaker. 69 Instead, he sought the opinion of local 

63. Id. at 241-42 (citing Berthiaume v. School Comm. of Woonsocket, 397 

A.2d 889, 893 (R.I. 1979). 

64. Edward Fitzpatrick, Retired Justice Criticizes Williams Ruling, 

PROJO.COM, June 8, 2005, http://www.projo.com/news/content/projo_ 

20050608_chief8.261f8af.html. 

65. See Katherine Gregg, Speaker Seeks “Expert” Advice on Ethics 

Controversy, PROJO.COM, Nov. 7, 2003, http://www.projo.com/news/ content/ 

projo_20031107_gop07.b1c7a.html. 

66. R.I. CONST. art 6, § 4. 

67. See Gregg, supra note 65. 

68. Katherine Gregg, Speaker Satisfied with Fox Opinion, PROJO.COM, 

Nov. 25, 2003, http://www.projo.com/news/content/projo_20031125_fox25. 

10a7c1.html. 

69. See Katherine Gregg and Edward Fitzpatrick, At the Assembly:

MCKENNA 



constitutional scholar and academic Patrick Conley. 70 

In his written opinion to the General Assembly, Professor 

Conley opined that the plain meaning of the word “case” in article 

6, section 4 was also its constitutional meaning. 71 In discerning 

the plain meaning, Professor Conley looked no further than 

Black’s Law Dictionary, which defines the word “case” as, in 

relevant part, “a question contested before a court of justice.” 72 

Because the General Assembly did, at one point, have the power to 

exercise appellate judicial review, the use of the word has a loaded 

meaning. 73 In Professor Conley’s opinion, the word “case” was 

dispositive in deciding the controversy: Because the General 

Assembly no longer sat in a judicial role, and because article 6, 

section 4 had been considered, but remained unchanged in 

succeeding Rhode Island constitutional conventions, the provision 

had slid into obsolescence and had no applicability to the situation 

in which Representative Fox found himself. 74 

In his response to Professor Conley’s opinion to the General 

Assembly, James Marusak raised the issue of constitutional 

construction, suggesting that well worn methods of construction 

had been left to the wayside by Professor Conley in the course of 

his opinion. 75 He made the oft-repeated point that considering 

Ethics Exclusion for Lawyer-Politicians Delayed in Face of Heavy Opposition, 

PROVIDENCE J., Feb. 14, 2001, at 1A. 

70. Id. See also James P. Marusak, Article VI, Section 4: Still Alive and 

Well, 53 R.I. BAR J., Nov.-Dec. 2004, at 11 (2004). 

71. Patrick T. Conley, Article VI, Section 4: A Case Study in 

Constitutional Obsolescence, 53 R.I. BAR J., Sept.-Oct. 2004, at 9-11 (2004). 

72. Id. (citing BLACK’S LAW DICTIONARY 206 (7th ed. 1999)). James 

Marusak suggests that this was the wrong place to look for the plain meaning 

of a word, and that a regular dictionary should have been consulted rather 

then a legal one. “Plain and common meanings should be ascertained by 

consulting Webster’s Dictionary of the American Language, rather than 

Black’s Dictionary of the Lawyer’s Language. Using a legal dictionary to 

primarily define the word ‘case’ dictates the answer. One probably should not 

use Dorland’s Medical Dictionary to define ‘seizures’ in its constitutional 

context either.” Marusak, supra note 70, at 11. 

73. See Conley, supra note 71. Professor Conley goes on to provide an 

historical analysis of article 6, section 4, concluding that, “[t]he use of the 

word ‘case’ in all three versions of this section was clearly intended to apply 

only to court cases in which a lawyer/legislator might use the existing 

petition process to win a legislative verdict for his client.” Id. at 9-10. 

74. Id. at 11. 

75. Marusak, supra note 70, at 11.

MCKENNA 



constitutional provisions overruled by implication is disfavored. 76 

Despite Marusak’s analysis of the use of the word “case” in Rhode 

Island’s constitutional history, an analysis which suggests that a 

more expansive meaning might have been appropriate, Speaker 

Murphy chose to accept Professor Conley’s opinion, never calling 

for an advisory opinion from the Supreme Court. 77 

While the fact that “[n]o word or phrase in the Constitution 

may be construed a nullity if any other construction can give it 

meaning,” 78 the legislature allowed the entire section of article 6 

dealing with lawyer-legislators to be read right out of the state 

constitution. If Professor Conley’s interpretation is to be accepted, 

there is an absolutely meaningless provision in the state 

constitution, one to which no construction can give meaning. 

Similarly, in McKenna, the Rhode Island Supreme Court 

interpreted a provision of the Rhode Island Constitution dealing 

with dual office holding, despite its reference to judges, as not 

applying to justices of the Rhode Island Supreme Court, 79 thereby 

violating the maxim that “no word or section can be assumed to be 

unnecessarily used, needlessly added or unnecessarily omitted.” 80 

By applying the plain meaning of the words of the provision, 

the Rhode Island Supreme Court held that the provision no longer 

applied to judges, as they were no longer elected, but instead 

appointed on the basis of merit. 81 Because, at one point, judges 

did take office after being elected, as opposed to just being 

engaged, the court ascribed to both of those words a loaded 

meaning, precluding continued application of article 3, section 6 to 

the judiciary. McKenna renders article 3, section 6, as it applies to 

the Rhode Island judiciary, like article 6, section 4, before it, 

obsolete and meaningless. 

CONCLUSION 

The foregoing provides two recent examples of the Rhode 

76. Id. 

77. Id. See also Gregg, supra note 69. 

78. Marusak, supra note 70, at 11 (quoting City of Pawtucket v. Sundlun, 

662 A.2d 40, 45 (R.I. 1995)). 

79. McKenna, 874 A.2d at 231. 

80. Marusak, supra note 70, at 11 (quoting Bandoni v. State, 715 A.2d 

580, 590 (R.I. 1998)). 

81. McKenna, 874 A.2d at 232.

MCKENNA 



Island Constitution being overruled by implication, despite the 

fact that doing so is disfavored. After McKenna, not only do an 

attorney and his law practice lack standing to maintain an action 

to remove a public official from office, but any action to remove a 

public official from office is a petition in equity in the nature of 

quo warranto, over which the Superior Court lacks subject matter 

jurisdiction without the intervention of the Attorney General. 

Furthermore, Rhode Island’s constitutional prohibition against 

state officials holding dual offices does not apply to appointed 

members of the Rhode Island judiciary. 

Aaron R. Baker & Bridget N. Longridge

YOUNG 

5/15/2006 7:14 PM 

Constitutional Law. Young v. City of Providence, 396 

F.Supp. 2d 125 (D.R.I. 2005). The Federal District Court for the 

District of Rhode Island denied all of the City of Providence 

Officers’ motions for summary judgment as put forth based on the 

defense of qualified immunity, finding that for all three of the 

defendants, under a three-prong qualified immunity analysis, 

there existed material factual disputes as to supervisory liability. 


On January 28, 2000, Cornell Young Jr., an off-duty 

Providence police officer, was shot and killed by two fellow on-duty 

Providence police officers, Carlos Saraiva and Michael Solitro. 1 

Young was shot by the other Providence officers while responding 

off-duty to an altercation occurring within city limits, and as such, 

was in plainclothes and not in uniform. 2 Additionally, Providence 

police regulations at the time of the incident required that off-duty 

officers be armed at all times and prepared to act in their official 

capacity, even when off-duty; Young had his gun out while shot at 

the scene of the altercation. 3 Complicating this already complex 

tragedy was the fact that Young was African-America and both of 

the other officers were not. 4 

Young’s mother, Leisa Young, subsequently brought suit in 

Rhode Island Federal District Court against both the individual 

officers involved in the tragedy, on Fourth Amendment 

unreasonable use of force grounds, 5 and against the City of 

Providence, for its alleged “failure to properly screen, hire, train, 

discipline and supervise the City’s police officers.” 6 In 2003, Judge 

Mary Lisi presided over a bifurcated trial in which the jury was 

1. Young v. City of Providence, 301 F. Supp. 2d 163, 166 (D.R.I. 2004). 

2. Id. at 166. 

3. Young v. City of Providence, 396 F. Supp. 2d 125, 129 (D.R.I. 2005). 

See also Edward Fitzpatrick, Young Drops Appeal to End Five-Year Battle, 

PROVIDENCE J., Feb. 4, 2006 at A3-4. 

4. Fitzpatrick, supra note 3, at A3. 

5. Young, 301 F. Supp. 2d at 168. 

6. Id. at 166. 

801

YOUNG 

5/15/2006 7:14 PM 


first asked to determine if the two on-duty officers had violated 

Young’s Fourth Amendment rights; the jury found that one officer 

had violated Young’s rights, but that the other officer had not. 7 At 

that time, Judge Lisi granted summary judgment on all other 

grounds and appeals soon followed. 8 

On April 25, 2005, the First Circuit Court of Appeals issued 

its decision, affirming the jury’s finding that one officer violated 

Young’s rights and also affirming Judge Lisi’s summary judgment 

as to one charge against the City, but reversing Lisi’s summary 

judgment for the City “on a claim that it is responsible for 

inadequately training [Officer] Solitro on how to avoid on-duty/offduty 

misidentification in light of the department’s policy that 

officers are always armed and always on-duty.” 9 The District 

Court’s grant of summary judgment for the City on supervisory 

claims was also vacated and remanded, as it had been based on 

the grant of summary judgment for the City on the other 

municipal claims. 10 

The issues as remanded for trial before the District Court for 

resolution were based on the supervisory and training claims. 11 

On remand, the relevant supervisory officials (Urbano Prignano, 

the then Providence Chief of Police; John Ryan; and Kenneth 

Cohen) moved for summary judgment on qualified immunity 

grounds. 12 


In this case, the plaintiff, Leisa Young, sought to hold the 

defendants (Prignano as the then Chief of the Providence Police, 

and Ryan and Cohen for their roles in training Officer Solitro) as 

liable for her son’s death in their supervisory capacities. 13 All of 

these three officials moved for summary judgment as to Young’s 

claims based on the defense of qualified immunity. 14 

In addressing the city officials’ motion for summary judgment 

based on the status of qualified immunity, District Court Judge 

7. Young, 396 F. Supp. 2d at 129 (citing Young, 301 F. Supp. 2d at 169). 

8. Id. at 129-30. 

9. Young, 404 F.3d 4, 9-10 (1st Cir. 2005). 

10. Id. at 10. 

11. See Young, 396 F. Supp. 2d at 130. 

12. Id. 

13. Id. at 131-41. 

14. Id. at 130.

YOUNG 

5/15/2006 7:14 PM 


Smith utilized a three-prong approach, in which each prong must 

be analyzed in a specific order: 15 first, in the light most favorable 

to the plaintiff, if the facts alleged show that the official’s conduct 

violated a constitutional right; 16 second, if the first prong is 

answered in the affirmative, whether the right claimed to have 

been violated can be said to have been “clearly established” by 

law at the time of the alleged violation; 17 third, if the right was 

established at the time of the violation, whether “a reasonable 

official, situated similarly to the defendant(s), would have 

understood that the conduct at issue contravened the clearly 

established law.” 18 

As to the first prong of the inquiry, the District Court found 

that Young had easily exceeded her burden in showing these 

officers violated the decedent’s constitutional rights, as in phase 

one of the first trial, the jury returned a verdict saying that 

Cornell Young’s rights had been violated by Officer Solitro, a 

verdict which the First Circuit subsequently upheld. 19 

As to the second prong of whether or not the law creating the 

constitutional right was clearly established at the time of the 

alleged violation of Young’s rights, the District Court cited the 

case of Tennesee v. Garner, 20 in which the United States Supreme 

Court stated that “[w]henever an officer restrains the freedom of a 

person to walk away, he has seized that person . . . [T]here can be 

no question that apprehension by the use of deadly force is a 

seizure subject to the reasonableness requirement of the Fourth 

Amendment,” 21 and as such Young’s rights were violated in this 

instance. 22 

The District Court next inquired whether these defendants 

would be liable in their supervisory capacities for the violations 

15. Id. at 131. (citing Savard v. R.I., 338 F.3d 23, 27 (1st Cir. 2003)). 

16. Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). 

17. Id. (citing Brosseau v. Haugen, 543 U.S. 194 (2004)). 

18. Id. (quoting Saucier, 533 U.S. at 205). 

19. Id. at 132-33 (citing Young, 301 F. Supp. 2d at 169; Young, 404 F.3d 

at 25). 

20. 471 U.S. 1 (1985). 

21. Young, 396 F. Supp. 2d at 134 (citing Garner, 471 U.S. at 1 (quoting 

Fernandez v. Leonard, 784 F.2d 1209, 1217 (1st Cir. 1986) (internal citations 

omitted))). 

22. See id.

YOUNG 

5/15/2006 7:14 PM 


perpetrated by the subordinate officer, Solitro. 23 Here again, the 

court answered its own inquiry in the affirmative by finding that 

police supervisors may be held liable for the actions of their 

subordinates, as well as for the failure to properly train 

subordinates, in circumstances involving friendly fire. 24 In 

denying the defendants’ arguments as to this prong, the District 

Court cited the Circuit Court’s finding that “[a]lthough there was 

no evidence of a prior friendly fire shooting, a jury could find . . . 

that the department knew there was a high risk . . . that friendly 

fire shootings were likely to occur” 25 as support for a finding of 

supervisory liability and as “clearly establish[ing] that supervisors 

may be held liable for fail[ure] to adequately train officers.” 26 

As to the third and final prong of the qualified immunity 

analysis, the District Court stated that the plaintiff “face[d] a 

fairly tall order: she must demonstrate that there are material 

factual disputes regarding whether each individual defendant was 

deliberately indifferent to the risk” of harm that might result from 

their failure to provide constitutionally adequate training of the 

subordinate officers and that these actions were objectively 

unreasonable. 27 

Here, the court found that there were material factual 

disputes as to each of the three defendants. 28 In the case of 

Prignano, the defendant himself acknowledged that he was 

“ultimately responsible for ensuring proper training of the PPD 

[and that as to the “always armed, always on duty” policy,] . . . 

that failure to follow it could lead to someone being killed.” 29 The 

court found that there were numerous factual disputes 

surrounding training and that “[a]lthough Prignano did not 

provide direct instruction to Solitro, he may nevertheless be liable 

as a supervisor.” 30 As to the defendant Ryan, the court found that 

not only was he responsible as Director of Administration for the 

Providence Police Department at the time of Young’s death for 

officer training, but also noting that the plaintiff claimed that he 

23. Id. at 134-35. 

24. Id. at 135. 

25. Young, 404 F.3d at 28-29. 

26. Young, 396 F. Supp. 2d at 136. 

27. Id. at 137. 

28. Id. at 137- 41. 

29. Id. at 137. 

30. Id. at 138.

YOUNG 

5/15/2006 7:14 PM 


“actually conducted training that was inconsistent with . . . PPD 

policy,” and that there existed disputed issues of material fact as 

to Ryan’s involvement in the officers’ training. 31 As to the 

defendant Cohen, who was the Director of the Training Academy 

that Solitro attended, the court similarly found that there existed 

issues of material fact as to whether Cohen was “deliberately 

indifferent to the known risks associated with the always 

armed/always on-duty policy by failing to provide training” around 

this policy. 32 As such, the court found that there were sufficient 

factual disputes as to each defendant so as to deny summary 

judgment based on supervisory qualified immunity in all three 

instances. 33 

Additionally, the court denied two other motions for summary 

judgment put forth: Prignano moved for summary judgment as to 

the plaintiff Leisa Young’s Monell 34 claim against him, and Ryan 

moved for summary judgment claiming he could not be liable in a 

supervisory capacity, as the officer he had trained was found not 

to have violated the decedent’s constitutional rights. 35 

COMMENTARY 

Five weeks after Judge Smith issued the opinion denying all 

of the defendants’ motions for summary judgment, a federal jury 

decided that the city of Providence and its officers were not liable 

for the violation of Cornell Young’s constitutional rights as 

perpetrated by Officer Solitro. 36 The plaintiff Leisa Young (the 

deceased officer’s mother) had filed an appeal to this verdict in the 

First Circuit Court of Appeals on Januray 18, 2006, but later 

dropped her appeal on February 3, 2006. 37 What began as a 

national news-making tragedy that once included legal counsel 

Johnnie Cochran, ended with little legal consolation for the 

deceased officer’s family and loved ones. 38 

31. Id. at 140. 

32. Id. at 141. 

33. Id. 

34. Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978). 

35. Young, 396 F.Supp. 2d at 141-46 (D.R.I. 2005). 

36. Fitzpatrick, supra note 3, at A3-A4. 

37. Id. 

38. Id.

YOUNG 

5/15/2006 7:14 PM 


CONCLUSION 

The Federal District Court for the District of Rhode Island 

denied all motions for summary judgment as put forth by 

supervisory officers of the City of Providence under the defense of 

qualified immunity. 39 

Esme Noelle DeVault 

39. Young, 396 F. Supp. 2d at 146.

SANZI 

5/15/2006 7:20 PM 

Contract/Insurance Law. Sanzi v. Shetty, 864 A.2d 614 

(R.I. 2005). Medical malpractice liability insurer had no duty to 

defend or indemnify a pediatric neurologist for injuries arising 

from alleged sexual assaults of former child-patient because of the 

“inferred intent doctrine,” which provides that, as a matter of law, 

there is an inferred intent to harm in cases of sexual abuse of 

children. The intentional acts of sexual abuse were outside the 

scope of the insured’s policies, which provided coverage in the 

event of accidental “occurrences.” The liability insurer also had no 

duty to defend or indemnify because the alleged acts were not 

sufficiently connected to “professional services,” and thus fell 

outside the scope of policy coverage. 


In December 1999, Rebecca Caldarone, a former patient of 

pediatric neurologist Dr. Taranath M. Shetty, committed suicide. 1 

In 2000, Caldarone’s parents and husband (as parent and next 

friend of her minor children) brought a wrongful death action 

against Dr. Shetty and Taranath M. Shetty, M.D., Inc. 2 The 

plaintiffs alleged that Shetty sexually abused and battered Mrs. 

Caldarone for eight years, from 1979 until 1987, beginning when 

she was his fourteen-year-old patient. 3 They claimed that Shetty 

deceived Caldarone’s parents into believing that it would benefit 

their daughter’s health if she worked at his office on Saturdays, 

and that Dr. Shetty sexually abused her on those Saturday 

workdays and during her regular medical visits. 4 The plaintiffs 

claimed that this alleged sexual abuse ultimately caused Rebecca 

Caldarone’s death by suicide. 5 

Since 1978, Dr. Shetty was covered by malpractice liability 

insurance policies issued by The Medical Malpractice Joint 

1. Sanzi v. Shetty, 864 A.2d 614, 615 (R.I. 2005). 

2. Id. 

3. Id. at 617. 

4. Id. 

5. Id. at 615. 

815

SANZI 

5/15/2006 7:20 PM 


Underwriting Association of Rhode Island (JUA). 6 The JUA 

policies provided that the company would provide liability 

coverage for “injury arising out of the rendering of or failure to 

render . . .professional services by the individual insured 

. . .performed in the practice of the individual’s profession . . . .” 7 

The policies provided for protection in the event of an 

“occurrence,” with “occurrence” defined in the policy as “an 

accident . . .which results in bodily injury or property damage 

neither expected nor intended from the standpoint of the 

insured.” 8 Beginning in 1980, Shetty’s policies also contained a 

criminal-act exclusion: “This insurance does not apply . . . to 

injury arising out of the performance by the insured of a criminal 

act.” 9 When Shetty was sued, he contacted JUA seeking defense and 

indemnification coverage. 10 JUA denied coverage. 11 They claimed 

that under the insurance policies, neither Dr. Shetty, nor Shetty, 

Inc., was entitled to defense or indemnity for the claims asserted 

by the plaintiffs. 12 Dr. Shetty filed a third-party complaint 

against JUA, seeking “a determination that JUA ha[d] a duty to 

defend and/or indemnify both himself and Shetty, Inc., and 

demanding judgment against JUA for all sums potentially 

adjudged against [him].” 13 

JUA filed a motion for summary judgment; the hearing justice 

found that JUA was under no duty to defend or indemnify Dr. 

Shetty and that therefore JUA was entitled to summary 

judgment. 14 The defendants appealed. 15 


On appeal the defendant argued that: (1) the plaintiff’s 

complaint passed the pleadings test, thus obligating JUA to 

6. Id. at 617. 

7. Id. (quoting defendants’ JUA policies JUA-7301 and 8809) (emphasis 

omitted). 

8. Id. 

9. Id. (quoting defendants’ JUA policy issued on Form JUA-20). 

10. Id. at 616. 


12. Id. 

13. Id. 

14. Id. 

15. Id.

SANZI 

5/15/2006 7:20 PM 


defend and indemnify the defendant; and (2) that there was a 

genuine issue of material fact as to whether the policies in place 

between 1978 and 1980 covered injuries arising out of sexual 

misconduct. 16 The central question presented to the court was 

whether the JUA had any duty to defend and potentially 

indemnify the defendant, based on the terms of the defendants’ 

liability insurance policies and the facts alleged in the complaint 

against them. 17 

The court’s analysis began with the question of whether the 

complaint against Shetty satisfied the pleadings test. 18 The 

pleadings test provides that “an insurer’s duty to defend is a 

function of the allegations in the complaint filed against the 

insured, and that if the allegations bring the case within the scope 

of the risks covered by the policy, the insurer must defend 

regardless of whether the allegations are groundless, false, or 

fraudulent.” 19 Whether the pleadings test was satisfied turned on 

the question of whether sexual abuse was an injury that arose out 

of the rendering of “professional services.” 20 This was because 

according to the defendant’s insurance policy, JUA would provide 

liability coverage for injuries “arising out of the rendering of or 

failure to render . . . professional services” 21 by the individual 

insured. Since Shetty’s policies covered risks arising out of the 

rendering of professional services, the pleadings test would be 

satisfied if the sexual abuse arose out of the rendering of 

professional services. 22 

The court found that the pleadings test was not met because 

sexual abuse was not a claim within the sphere of professional 

services covered under the policy. 23 The court observed that most 

American courts follow the rule that “intentional sexual abuse 

does not fall within the rendering of professional services for the 

purposes of insurance coverage unless the acts are so inextricably 

intertwined with medical treatment that coverage must be 

16. Id. 

17. Id. at 616-17. 

18. Id. at 618. 

19. Id. (internal quotation marks and brackets omitted) (quoting Craven 

v. Metro. Prop. & Cas. Ins. Co. 693 A.2d 1022 (R.I. 1997)). 

20. See id. at 618-19. 

21. Id. at 617 (emphasis added). 

22. See id. 

23. Id. at 618.

SANZI 

5/15/2006 7:20 PM 


afforded.” 24 The Rhode Island Supreme Court had not previously 

considered “the issue of insurance coverage in a case involving a 

medical professional accused of sexual misconduct.” 25 The court 

decided to adopt the test for determining whether an act was 

“professional” in nature from the 1968 Nebraska case Marx v. 

Hartford Accident and Indemnity Co., 26 the leading case in this 

area. 27 According to the Marx case, “[i]n determining whether a 

particular act is of a professional nature or a ‘professional service’ 

we must look not to the title or character of the party performing 

the act, but to the act itself.” 28 In addition, “something more than 

an act flowing from mere employment is essential. The act or 

service must be such as exacts the use or application of special 

learning or attainments of some kind.” 29 

In applying the Marx reasoning, the court focused on “the acts 

and circumstances surrounding the alleged assaults.” 30 In the 

court’s view, the connections between Shetty’s professional status 

and the alleged abuse were de minimis. 31 The only connections 

between Shetty’s professional activities and the alleged abuse 

were that his professional status allowed him access to the victim 

and that the alleged abuse occurred at his office. 32 These minimal 

connections to Shetty’s professional services as a pediatric 

neurologist were “remotely incidental” to the allegations of the 

complaint. 33 Because the “alleged sexual abuse . . . was so distinct 

from [Shetty’s] medical skills, training, and practice in pediatric 

neurology . . . the alleged abuse clearly [fell] outside the scope of 

‘professional services.’” 34 Thus, the court held that the allegations 

of sexual abuse fell outside of the “professional services” coverage 

of JUA’s liability insurance. 35 

The court did not end the analysis with the finding that the 

24. Id. 

25. Id. at 619. 

26. 157 N.W.2d 870 (Neb. 1968). 

27. 864 A.2d at 619. 

28. Marx, 157 N.W.2d at 872. 

29. Id. at 871-72. 

30. Shetty, 614 A.2d at 619. 

31. See id. 

32. See id. 

33. Id. at 619. 

34. Id. at 619. 

35. Id. at 619-20.

SANZI 

5/15/2006 7:20 PM 


pleadings test had not been met. The opinion went on to explain 

that even if the distinction between the defendant’s professional 

services and the alleged sexual misconduct were less clear, the 

outcome would be the same. 36 This was because Rhode Island 

Supreme Court precedent established “an exception to [the 

pleadings test] in cases involving civil actions for damages flowing 

from an alleged sexual molestation.” 37 

In Peerless Insurance Co. v. Viegas, 38 the Rhode Island 

Supreme Court adopted the inferred intent doctrine. 39 According 

to that doctrine, “because injury always ensues [from the sexual 

molestation of children], the offender is deemed to intend any 

injury resulting from the act as a matter of law.” 40 The Peerless 

court applied the inferred intent doctrine to reach the holding that 

“in civil actions for damages that result from an act of child 

molestation, an insurer will be relieved from its duty to defend 

and to indemnify its insured if the perpetrator is insured under a 

policy in which there is contained an intentional act provision.” 41 

In a subsequent case, Craven v. Metropolitan Property & 

Casualty Insurance Co., 42 the Rhode Island Supreme Court 

extended the Peerless rationale to an insurance policy that did not 

contain a specific intentional act exclusion provision. 43 The policy 

at issue in Craven would cover an injury arising out of an 

“occurrence” with “occurrence” defined as an “accident . . . 

resulting in bodily injury.” 44 The Craven court held that when 

allegations are made as to intentional acts, there is no accident, 

and therefore can be no “occurrence” to fall inside of the policy’s 

coverage. 45 

In nearly identical terms as the policy at issue in Craven, the 

happening of an accidental occurrence would trigger coverage 

36. Id. at 620. 

37. Id. (quoting Am. Commerce Ins. Co. v. Porto, 811 A.2d 1185, 1190 

(R.I. 2002)). 

38. Peerless Ins. Co. v. Viegas, 667 A.2d 785 (R.I. 1995). 

39. See id. 

40. Id. at 788. 

41. Id. 

42. Craven v. Metro. Prop. & Cas. Ins. Co., 693 A.2d 1022 (R.I. 1997) 

(mem). 

43. Id. at 1022. 

44. Id. 

45. Id.

SANZI 

5/15/2006 7:20 PM 


under Shetty’s policies. 46 Following the principles set forth in 

Peerless and Craven, the court found that the inferred intent 

doctrine applied and relieved JUA from its duty to defend or 

indemnify the defendant for injuries arising from the alleged 

sexual assaults. 47 

The defendant’s final argument before the court was that 

there was an ambiguity in the insurance policies that were in 

effect during the period from 1978 to 1980 that was sufficient to 

create an issue of material fact. 48 The defendant’s argument was 

that there was no explicit criminal act exclusion clause in the 

policy during that period, and that it could be implied that 

coverage for injuries arising out of criminal acts was included in 

those policies. 49 The court determined that this argument was 

without merit because there was nothing in the policies that 

would lead an “ordinary reader to conclude that criminal-acts or 

sexual-abuse coverage was included.” 50 The mere fact that an 

explicit criminal acts exclusion was included in policies after 1980 

did not imply inclusion of criminal acts coverage in earlier 

policies. 51 

Because the court found that the JUA had no duty to defend 

or indemnify the defendant Dr. Shetty, it concluded that summary 

judgment was appropriate and affirmed the judgment of the 

Superior Court. 52 

COMMENTARY 

This case is significant because it represents the first time 

that the Rhode Island Supreme Court has addressed the issue of 

liability insurance coverage of a medical professional accused of 

sexual misconduct. 53 The test that the court has adopted for 

determining whether a particular act is a “professional service” or 

of a professional nature for the purposes of liability insurance 

makes sense. The court will focus on the circumstances 

46. Shetty, 864 A.2d at 620. 

47. Id. 

48. Id. 

49. Id. 

50. Id. at 621. 

51. Id. 

52. Id. 

53. Id. at 619.

SANZI 

5/15/2006 7:20 PM 


surrounding the alleged act in order to determine whether it falls 

within the scope of “professional services” as that term is used in 

the relevant liability policies. It is reasonable to focus on the act 

itself, and not the defendant’s title or vocation, when determining 

whether the act was connected to the rendering of professional 

services. The holding that in these circumstances the intentional 

sexual abuse of a child was not sufficiently related to the 

rendering of professional services to come within the scope of a 

liability insurance policy seems correct. 

Applying the inferred intent rule to reach the conclusion that, 

as a matter of law, sexual molestation of a child is not an 

accidental occurrence within the terms of a liability insurance 

policy also makes sense. Liability insurance is intended to offer 

protection in the event of alleged negligence on the part of the 

insured. When a policy protects against liability arising from 

accidental occurrences, it seems fair to deny coverage for 

intentional misconduct. 

The significance of this case for medical professionals is that, 

in the event of allegations of sexual abuse, it is very unlikely that 

they will be covered under their liability insurance policies. 

CONCLUSION 

In this case of first impression, the Rhode Island Supreme 

Court held that sexual molestation falls outside the scope of 

coverage under a medical liability insurance policy that provides 

coverage for injuries arising out of the rendering of professional 

services. The court also held that, according to the inferred intent 

doctrine, sexual abuse of a child is not an accidental “occurrence” 

under a medical liability insurance policy, and therefore is not 

covered under an accident liability coverage policy in any event. 

The liability insurance company therefore had no duty to defend 

or indemnify the defendant pediatric neurologist against liability 

arising out of accidental occurrences that took place in the 

rendering of professional services. 

Matthew J. Costa

LUANGLATH 

5/15/2006 7:40 PM 

Criminal Law. State v. Luanglath, 863 A.2d 631 (R.I. 2005). 

When a deadlocked jury reveals its numerical split to a trial 

justice, the trial justice must then convey the numerical split to 

counsel. Knowledge of a jury’s numerical split allows counsel to 

adequately consider trial strategy. A trial justice’s supplemental 

Allen instructions, which suggest to the deadlocked jury that the 

failure to reach a unanimous verdict will result in an imminent 

retrial, “at great expense to the State and great expense to the 

defendants,” are unduly coercive, when the lone holdout knows 

that the trial justice and the remaining jurors share knowledge of 

the numerical split. 


On March 16, 1990, after 11 p.m., three men entered the 

Providence home of the Souvannaleuth family and robbed the 

family at gunpoint. 1 Six members of the family were present at 

the time of the robbery: the parents (Mr. and Mrs. 

Souvannaleuth); their three daughters (Malaythong, Southavong, 

and Kongseng); and one son (Somsamay). 2 The robbers took U.S. 

currency, gold, and jewelry valued at between $39,000 and 

$78,000. 3 

Soon after the robbery, the Souvannaleuths described their 

observations to the police. 4 None of the family members could 

identify the robbers that evening, but Kongseng told police that 

she recognized two of the perpetrators as people she encountered 

within the Laotian community. 5 Later that night, the family 

members discussed the possible identity of the robbers and 

mentioned the defendants, brothers Sythongsay and Soukky 

Luanglath. 6 In the days following the robbery, family members 

1. State v. Luanglath (Luanglath II), 863 A.2d 631, 634 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. 

5. Id. 

6. Id. 

823

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reported seeing the perpetrators in the community. 7 After 

Kongseng, Malaythong, and Southavong attended a party in 

Foxboro, Massachusetts, which featured a performance by the 

defendants’ band, Kongseng reported the sighting to the police. 8 

The State of Rhode Island prosecuted the defendants for burglary 

and robbery. 9 

During the defendants’ April and May 1993 trial, the jury 

process was characterized by irregularities. 10 Difficulties ensued 

when, after the jury retired for deliberations, one of the twelve 

jurors refused to vote based on his religious beliefs. 11 At that 

point, the trial justice asked the defendants if they needed an 

English-language interpreter and then set forth four options 

available to the defendants: (1) she could call the dissident juror in 

and “read him the riot act;” (2) she could substitute the alternate 

juror; (3) the trial could proceed with eleven jurors; or (4) the court 

could declare a mistrial. 12 The defendants considered their 

options and agreed to allow the eleven-person jury to proceed. 13 

The eleven jurors then continued to deliberate, but after only 

a few hours, the jury notified the trial justice that it was unable to 

agree. 14 The eleven jurors presented a note to the trial justice, 

informing her that “[a]t the moment it is 10 to 1 and it seems that 

neither are willing to change their opinion. Can you provide any 

insight as to how to deal with the decision[]” 15 The trial justice 

then met with the prosecution and defense counsel to discuss the 

supplemental jury instructions that she planned to issue, but she 

did not disclose her knowledge that the jury was deadlocked ten to 

one. 16 The trial justice then instructed the jury with essentially the 

same instructions she discussed with counsel, but went on to 

comment that “[i]f there is no decision by this jury, this case will 

7. Id. 

8. Id. 

9. Id. at 633 (citing State v. Luanglath (Luanglath I), 749 A.2d 1 (R.I. 

2000)). 

10. Id. at 634. 


12. Id. at 640. 

13. Id. 

14. Id. at 634. 

15. Id. 

16. Id.

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be tried all over again” and that “if it has to be retried, it will be 

retried at great expense to the state and great expense to the 

defendants.” 17 At the time that the trial justice issued the 

instructions, neither the prosecution nor the defense counsel knew 

of the jury’s numerical split. 18 Neither party objected to the 

instructions; however, the defendants moved to pass the case due 

to the deadlock. 19 After one more hour of deliberations, the jury 

returned a unanimous guilty verdict against both of the 

defendants on all counts. 20 

17. Id. at 635 (emphasis omitted). The trial justice’s full instructions 

were as follows: 

I’m somewhat surprised that with the jury deliberating such a 

short time, there is an apparent deadlock. . . . You know, of course, 

that jurors have a duty, really, to consult with one another and to 

deliberate and to discuss with a view to reaching an agreement, if it 

can be done without violence to your individual judgment. 

Naturally, each of you must decide this case for yourselves, but you 

do that only after you have impartially considered the evidence in a 

discussion with all of the other jurors. Although the verdict, as I 

said, must be the verdict of each individual juror and not just 

acquiescence in the conclusion of others, the issues submitted to you 

in this case should be examined with proper regard and deference to 

the opinions of others. Jurors should not be obstinate for the sake of 

being obstinate. And a juror should consider it desirable that this 

case be decided. If there is no decision by this jury, this case will be 

tried all over again. It seems to me that no other jury is going to be 

more qualified than you are. It isn’t that on the next go-round better 

jurors are going to sit. 

You are qualified. . . . And I should tell you that there’s no 

reason for any juror to think that if this case is retried, more 

evidence or clearer evidence is going to be presented. And, if it has 

to be retried, it will be retried at great expense to the state and great 

expense to the defendants. 

As I’ve told you, it is your duty to decide the case if you can 

conscientiously do so. And as I said before, don’t hesitate to reexamine 

your views and change your position if you are convinced it 

is erroneous. I will remind you, of course, that you should never 

surrender an honestly arrived at conviction as to the weight or effect 

of the evidence only because of the opinion of other jurors, or only for 

the sake of returning a verdict. I don’t want that to happen either. 

It appears to me that more time ought to be spent upstairs by this 

jury. And in an hour or so I will send a note asking if there has been 

any progress. 

Id. at 634-35. 

18. Id. at 634. 

19. Id. at 635. 

20. Id.

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After the jury departed, the trial justice met with the 

prosecution and the defense counsel in her chambers. 21 She 

questioned her decision not to reveal the deadlocked jury’s 

numerical split, noting that the information “may have affected 

your strategy.” 22 She conceded that if the defense had known the 

full content of the jury’s note, it might have pressed harder for a 

mistrial. 23 

Following their 1993 conviction, the brothers appealed to the 

Rhode Island Supreme Court, arguing several issues, including 

that the trial justice had improperly denied their motion for a new 

trial based on the unreliability of the prosecution’s witnesses. 24 

The case was remanded to the trial court with instructions to 

reexamine the witness reliability issue. 25 Because the trial 

justice’s first decision suggested that the witness reliability issue 

might be dispositive, the court declined to reach the remaining 

issues proffered by the defendants. 26 In 2001, the trial justice 

issued a written opinion that resolved the witness reliability 

issue. 27 


On November 9, 2004, the defendants appealed to the Rhode 

Island Supreme Court again, rearguing the witness reliability 

issue, as well as the remaining two issues that the court did not 

21. Id. 

22. The trial justice’s complete remarks were as follows: 

I thought it best not to talk numbers to you when I told you 

about this note and told you that I wanted to re-instruct the jury. It 

may very well have been I should have. I don’t know how you would 

have read it. Either side. It may have affected your strategy, and I 

will not ask you to discuss it with me, but just to think about it. You 

may have had stronger objections to the so-called Allen charge which 

I gave. If you knew about the ten to one breakout, you may have 

indeed pressed for a mistrial, or at least a decision from me, and I 

didn’t give you a decision on the motion for mistrial. And I may very 

well have been in error in not deciding. But in any event, I thought 

you should know. 

Id. at 642. 

23. Id. 

24. Id. at 633. 

25. Id. 

26. Id. 

27. Id.

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reach in the prior appeal. 28 On the weight of the evidence issue, 

the court affirmed the trial justice’s denial of the defendants’ 

motion for a new trial. 29 Next, the court affirmed the trial justice’s 

ruling that the decision to proceed with eleven jurors followed 

knowing, intelligent, and voluntary waivers from both 

defendants. 30 The court then reached the two remaining issues 

from Luanglath I. 31 

Supplemental Allen Instructions 

First, the defendants argued that the trial justice’s 

supplemental Allen 32 instructions to the deadlocked jury were 

improper for three reasons: (1) the instructions placed too much 

emphasis on the possibility and cost of a retrial; (2) the nature of 

the instructions was too coercive given the fact that only one juror 

was dissenting from the majority; (3) the trial judge should have 

conveyed the numerical split of the deadlocked jury to counsel. 33 

The court held that the trial justice’s failure to reveal the entire 

contents of the jury’s note and her supplemental Allen instruction, 

informing the jury that a retrial was imminent and costly, 

constituted reversible error. 34 The court vacated the defendants’ 

convictions and remanded the case to the Superior Court for a new 

trial. 35 

In State v. Patriarca, 36 the Rhode Island Supreme Court set 

forth guidelines for analyzing Allen and instructing a deadlocked 

jury: 

[B]efore deliberation the court may instruct the jury: (1) 

that in order to return a verdict, each juror must agree 

thereto; (2) that jurors have a duty to consult with one 

another and to deliberate with a view to reaching an 

28. Id. 

29. Id. 

30. Id. at 641. 

31. See State v. Luanglath, 749 A.2d 1 (R.I. 2000). 

32. Allen v. United States, 164 U.S. 492, 501 (1896) (upholding jury 

instructions delivered to a deadlocked jury, even though the instructions 

urged the jurors in the minority to think about the majority’s views). 

33. Luanglath II, 863 A.2d at 641-2. 

34. Id. at 644. 

35. Id. 

36. State v. Patriarca, 308 A.2d 300 (R.I. 1973).

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agreement, if that can be done without violence to the 

individual judgment; (3) that each juror must decide the 

case for himself, but only after an impartial consideration 

of the evidence with his fellow jurors; (4) that in the 

course of deliberations, a juror should not hesitate to 

reexamine his own views and change his opinion if 

convinced it is erroneous; and (5) that no juror should 

surrender his honest conviction as to the weight or effect 

of the evidence solely because of the opinion of his fellow 

jurors, or for the mere purpose of returning a verdict. 37 

The Supreme Court reasoned that the trial justice’s 

instructions to the deadlocked jury covered, in almost the same 

words, the guidelines suggested by Patriarca, but then added the 

following additional instructions, upon which the defendants’ 

appeal is based: 

It seems to me that no other jury is going to be more 

qualified than you are. It isn’t that on the next go-round 

better jurors are going to sit. You are qualified. . . . And, 

if it has to be retried, it will be retried at great expense to 

the state and defendants. As I’ve told you, it is your duty 

to decide the case if you can conscientiously do so. 38 

In considering a challenge to a trial justice’s Allen 

instructions, the Rhode Island Supreme Court applies a totalityof-the-circumstances 

test. 39 The court distinguished the 

Luanglath I jury instructions from those upheld in a prior case, 

State v. Rodriguez, 40 which were not found coercive, in part 

because “the instructions were not addressed to either the 

majority or minority; it still took the jury an hour after the 

instructions were issued to reach a verdict. . . and the trial justice 

did not tell the jury that the case would have to be retried if they 

failed to reach a unanimous conclusion.” 41 By contrast, the trial 

justice’s instructions in Luanglath I emphasized the imminence 

and cost of a retrial when it was: 

inescapable that the only holdout juror knew that the 

37. Id. at 322. 

38. Luanglath II, 863 A.2d at 642. 

39. Id. 

40. State v. Rodriguez, 822 A.2d 894 (R.I. 2003). 

41. Luanglath II, 863 A.2d at 643 (citing Rodriguez, 822 A.2d at 902-04).

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trial justice was aware of the numerical split, and that 

the remaining ten jurors knew of the split and knew that 

the trial justice was aware of the split . . . even if the 

trial justice did not specifically single out the only 

dissenter, her instructions, coupled with the knowledge of 

the single holdout, took on a new meaning. 42 

Considering both the statements regarding the cost and 

imminence of a retrial, as well as the likely effect of the 

circumstances on the lone dissenter, the court held that the trial 

justice’s supplemental Allen instructions violated the boundaries 

set forth in Patriarca. 43 

Trial Justice’s Failure to Inform Counsel of the Entire Contents of 

the Jury’s Note 

The defendants also presented the Rhode Island Supreme 

Court with a question of first impression: must a trial justice 

disclose to defense counsel the numerical split revealed to the 

justice in a jury note 44 

The court looked to State v. Sciarra, 45 in which it held that a 

trial justice erred when he responded to a jury’s note outside of 

defense counsel’s presence, because the defense counsel had a 

right to be heard “before a response was given to the note.” 46 The 

Supreme Court reasoned that the facts in the present case 

demonstrated the problems that can arise when defense counsel is 

unaware of the information available to the trial justice. 47 The 

court reasoned that, as the trial justice conceded, had defense 

counsel been aware that the jury was deadlocked all-against-one 

in favor of a guilty verdict, the defendant would have objected to 

the court’s supplemental Allen instructions and moved for a 

mistrial. 48 Therefore, “it is imperative that the entire contents of 

a note be revealed.” 49 

42. Id. at 644. 

43. Id. 

44. Id. at 643. 

45. State v. Sciarra, 448 A.2d 1215 (R.I. 1982). 

46. Id. at 1220. 


48. Id. 

49. Id.

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COMMENTARY 

The Rhode Island Supreme Court’s decision in Luanglath II 

affirms the value and sanctity of jury deliberation. Additionally, 

Luanglath II illustrates how a deviation from the Patriarca 

guidelines can lead to precisely the end that the trial justice 

sought to prevent: additional litigation “at great expense to the 

State and great expense to the defendants.” 50 

A trial justice’s Allen instructions urge jurors to persevere and 

to engage themselves in the type of vigorous debate that 

characterizes the American jury system. The Patriarca guidelines 

express high ideals for jurors, including the responsibility to 

impartially consider the evidence and to refuse to sacrifice an 

honest conviction solely for the purpose of reaching an 

agreement. 51 While the Patriarca guidelines provide a means for 

trial justices to forestall Allen litigation, the Rhode Island 

Supreme Court noted in 2003 that the guidelines “were not 

intended to limit the trial justice’s discretion in instructing jurors 

concerning their obligations and responsibilities.” 52 

In Luanglath II, the trial justice’s supplemental Allen 

instructions suggested the imminence and cost of a retrial when 

both the trial justice and the jurors, including the holdout, knew of 

the jury’s numerical split. 53 The court emphasized the importance 

of the fact that the trial justice was aware of the jury’s numerical 

split when she issued the supplemental instructions, and held 

that the instructions were coercive considering the totality of the 

circumstances. 54 

A jury allows citizens to engage in thoughtful deliberation to 

determine whether the prosecution has satisfied its burden of 

proof against the defendants. The Sixth Amendment of the 

Constitution provides that a criminal defendant is entitled to a 

jury trial. 55 Any insinuation that jurors should rush to agreement 

in order to save tax dollars represents a failure of the system. The 

Rhode Island Supreme Court established the Patriarca guidelines 

50. Id. at 642. 

51. See Patriarca, 308 A.2d at 322. 

52. State v. Rodriguez, 822 A.2d 894, 900 (R.I. 2003) (citing State v. 

Souza, 425 A.2d 893, 900 (R.I. 1981)). 


54. Id. at 643-44. 

55. See U.S. CONST. amend. VI.

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as a means for the court to guide a deadlocked jury without 

encouraging agreement for its own sake. 56 While a trial justice 

has the discretion to give instructions beyond the Patriarca 

guidelines, supplemental instructions can be subject to challenge, 

as Luanglath II illustrates. In Luanglath II, the additional time 

and money that the defendants expended in challenging the trial 

justice’s supplemental instructions were well spent. 

CONCLUSION 

The Rhode Island Supreme Court held that a trial justice 

must reveal the entire contents of a jury’s note to counsel. In this 

case, knowledge of the jury’s numerical split, which included a 

holdout juror, would have enabled defense counsel to better 

consider its trial strategy and to object to supplemental Allen 

instructions that suggested that the failure to agree would result 

in an imminent retrial at great cost to the State and to the 

defendants. 57 Under the totality of the circumstances, the court 

held that the trial justice’s instructions were unduly coercive. 58 

Jessica Bosworth 

56. See generally Patriarca, 308 A.2d 300. 


58. Id. at 643-44.

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Criminal Law. State v. Perez, 882 A.2d 574 (R.I. 2005). A 

trial court does not abuse its discretion when it denies a 

defendant’s motion to sequester the State’s essential expert 

psychiatric witness during the defendant’s testimony. Further, 

the trial court has not abused its discretion when it allows the 

State’s psychiatric witness to testify that the defendant suffered 

from a particular disorder, even though the State had failed to 

inform the defense of this diagnosis as required by Rhode Island’s 

discovery rules, so long as the defense is familiar with the 

particular disorder, and any potential prejudice from the 

undisclosed information can be successfully mitigated. In the 

absence of overreaching, compulsion, or threats, a defendant who 

indicates his understanding of the circumstances and is found to 

be clear-headed when appraised of his Miranda rights, knowingly 

and voluntarily waives those rights when he subsequently makes 

a statement to police. However, even if an involuntary statement 

is erroneously admitted, if the statement merely constitutes 

cumulative evidence, the error is harmless. Finally, a delay of 

more than twelve months between a defendant’s arrest and trial 

on a charge does not violate the defendant’s right to a speedy trial 

when the defendant bears the primary responsibility for the delay, 

the defendant’s actions are not consistent with “banging on the 

courthouse doors,” and the defendant has not suffered prejudice. 


Victor Perez lived with his mother, Rosa Perez, and her 

friend, Lolo, in an apartment in Providence. 1 On August 13, 1998, 

Victor smoked a combination of crack and marijuana, continued to 

smoke marijuana throughout the day, and although it had been 

days since he had consumed any LSD, began to feel like he was 

“tripping.” 2 

While smoking marijuana in the living room, Victor 

testified that he heard his mother and Lolo arguing in the 

1. State v. Perez, 882 A.2d 574, 578 (R.I. 2005). 

2. Id. 

833

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bedroom, so he took a knife from the kitchen counter, hid it in his 

waistband, and proceeded to the bedroom to tell Lolo to leave his 

mother alone. 3 Lolo continued to scream at Rosa even after she 

exited the bedroom and went into the kitchen. 4 

Rosa soon realized that the knife was missing from the 

counter and insisted that Victor give it back, but Victor denied 

having the knife. 5 Lolo came out of the bedroom and went to hug 

Rosa before leaving, but Victor believed Lolo was trying to 

physically harm his mother. 6 Victor jumped up and rushed 

toward Lolo while grabbing for the knife in his waistband. 7 

However, Lolo exited the apartment before Victor reached the 

kitchen. 8 In the struggle to free the knife from his waistband, the 

blade broke loose from the handle and fell to the floor. 9 Rosa 

attempted to confiscate the knife before Victor regained control. 10 

According to Victor, when Rosa reached for the knife, he 

believed she was trying to assault him and a struggle developed. 11 

Rosa successfully grabbed the blade, but in response, Victor 

swiped another knife and began slashing at Rosa. 12 Victor 

claimed that he formed the belief that his mother was “the devil” 

and he had to protect himself. 13 Rosa died as a result of the 

injuries she sustained. 14 

A witness testified that he saw Victor run from the apartment 

and that Victor was “running like he was crazy, up and down, 

everywhere.” 15 Victor looked “all confused” and “[h]e didn’t know 

where he wanted to go.” 16 

When police arrived on the scene they observed “dozens 

upon dozens of bloody footprints throughout the building, up and 

3. Id. 

4. Id. 

5. Id. at 579. 

6. Id. 

7. Id. 

8. Id. 

9. Id. 

10. Id. 


12. Id. 

13. Id. 

14. Id. 

15. Id. at 580. 

16. Id.

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down various stairwells and various floors of the building.” 17 The 

officers tracked the footprints to the apartment of Luis Rivera on 

the second floor. 18 According to Rivera, Victor was acting crazy 

and he “had never seen [Victor] like that.” 19 Rivera testified that 

Victor told him that he “had a problem downtown.” 20 Unsatisfied 

with Victor’s explanation of his behavior, Rivera asked Victor 

whether he had killed his mother. 21 In response, Victor went to 

the kitchen, got a knife, wrapped it in a towel and sat down on the 

bed next to Rivera when the police knocked on Rivera’s door. 22 

After receiving permission from Rivera to enter the 

apartment, officers began searching for Victor. 23 They found him 

in the bathroom wielding a knife at “an attack point.” 24 When 

ordered to drop the knife and exit the bathroom, Victor complied 

and surrendered to police. 25 Officer Deschamps loudly read 

Miranda warnings from a preprinted card in both Spanish and 

English. 26 

When asked where his mother was and when he saw her 

last, Victor responded, that he “didn’t do anything.” 27 In response 

to questions about the injuries to his leg and hand, Victor told 

police that he had been in “a fight in the downtown area.” 28 

Officer Deschamps also testified that Victor was acting “extremely 

angry” and “cocky” and that he had to tell Victor to calm down 

numerous times. 29 

At trial, Victor did not refute that he had killed his mother, 

but argued that he suffered from diminished capacity. 30 To rebut 

the defense expert’s testimony supporting diminished capacity, 

the state presented its own expert witness, Dr. Kelly. 31 The jury 

17. Id. 

18. Id. at 580-81. 

19. Id. at 581 n.6. 

20. Id. at 581. 

21. Id. 

22. Id. 

23. Id. 

24. Id. 

25. Id. 

26. Id. at 581 n.10. 

27. Id. at 582. 

28. Id. 

29. Id. at 582 n.11. 

30. Id. at 582. 

31. Id.

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found Victor guilty of first-degree murder for the killing of his 

mother, Rosa Perez, and sentenced him to life imprisonment. 32 

The defendant subsequently appealed to the Rhode Island 

Supreme Court. 33 


On appeal, the defendant argued that the trial justice had 

committed reversible error: (1) in allowing the state’s expert to be 

present in the courtroom to observe the defendant testify before he 

gave his expert testimony about the defendant; 34 (2) in permitting 

the state’s expert to give a medical opinion in violation of 

discovery provisions of Rule 16 of the Superior Court Rules of 

Criminal Procedure; 35 (3) in denying his motion to suppress 

statements made to police in violation of his Miranda 36 rights; 37 

and, (4) denying his motion to dismiss on the grounds that the 

state violated his right to a speedy trial. 38 The Rhode Island 

Supreme Court unanimously found no reversible error and 

affirmed the defendant’s conviction. 39 

Presence of the State’s Expert in the Courtroom 

The defendant contended that the trial justice’s denial of his 

motion to sequester Dr. Kelly, the state’s expert, was in error. 40 

He argued that this testimony constituted impermissible vouching 

or bolstering because of the jury’s knowledge of Dr. Kelly’s 

presence during Victor’s testimony. 41 

In finding that the trial justice was acting within his 

inherent discretionary power 42 when he chose not to sequester Dr. 

Kelly, the court focused on Dr. Kelly’s essential role in the state’s 

32. Id. at 578. 

33. Id. at 582. 

34. Id. at 578. 

35. Id. (referencing R.I. SUP. R. CRIM. P. 16). 

36. 422 U.S. 322 (1975). 

37. Id. 

38. Id. 

39. Id. 

40. Id. at 583. 

41. See id. 

42. Id. A trial justice retains the inherent power to sequester witnesses 

in order to prevent a witness from corresponding his testimony to that of 

other witnesses. See id. This decision is discretionary and should only be 

overturned in the face of a clear abuse of discretion. Id.

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presentation of its rebuttal. 43 The court reasoned that because the 

state carried the burden of proving murder beyond a reasonable 

doubt, it was essential for the state to invalidate Victor’s defense 

by showing that he in fact was not suffering from diminished 

capacity when he killed his mother. 44 Because Dr. Kelly’s 

opportunity to examine the defendant before trial had been 

restricted, it was necessary to the presentation of the state’s 

rebuttal that he be permitted to remain in the courtroom during 

Victor’s testimony. 45 The court further noted that in light of the 

finding of necessity, Rule 615 of the Rhode Island Rules of 

Evidence explicitly forbid the sequestration of “a person whose 

presence is shown . . . to be essential to the presentation of [the 

case],” and thus, they did not need to comment on the defendant’s 

impermissible bolstering argument. 46 

The State Expert’s Medical Opinion and Compliance with 

Discovery Provisions of Rule 16 

The defendant next asserted that the trial justice should 

have limited the scope of Dr. Kelly’s testimony and that he erred 

when he allowed Dr. Kelly to testify that the defendant suffered 

from “antisocial personality disorder.” 47 The defendant based his 

assertion on the state’s failure to act in accord with Rule 16 of the 

Superior Court Rules of Criminal Procedure 48 and inform the 

defense of Dr. Kelly’s intent to testify on this subject. 49 

In holding that the trial justice did not abuse his discretion 

in allowing Dr. Kelly to testify about his belief that Victor suffered 

from “antisocial personality disorder,” the court relied heavily on 

the fact that the defense’s own documents made reference to the 

43. Id. at 584. 

44. Id. 

45. See id. at 583. 

46. Id. at 583-84 & n.14 (quoting R.I. R. EVID. 615(3)). 

47. Id. at 584. 

48. Id. at 584 n.16 (quoting R.I. SUP. R. CRIM. P. 16). 

49. 882 A.2d at 584. A trial justice’s ruling on noncompliance with Rule 

16 should not be disturbed absent a clear abuse of discretion. Id. The trial 

justice should evaluate the following factors before deciding whether 

sanctions are appropriate under Rule 16: “(1) the reason for nondisclosure, 

(2) the extent of prejudice to the opposing party, (3) the feasibility of 

rectifying that prejudice by a continuance, and (4) any other relevant factors.” 

Id. at 585.

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disorder. 50 In addition, there was no evidence that the state’s 

nondisclosure was a “deliberate act of misconduct.” 51 Further, 

because it was obvious that defense counsel was familiar with the 

characteristics of the disorder, defense counsel was sufficiently 

able to cross-examine Dr. Kelly regarding “antisocial personality 

disorder.” 52 Thus, the extent of prejudice was, at the most, 

minimal. 53 The court further noted that any potential prejudice 

was lessened by the trial justice’s grant of a continuance. 54 

Motion to Suppress the Defendant’s Statements 

The defendant also argued reversible error in the trial 

justice’s denial of his pretrial motion to suppress two statements 

he made to police shortly after being taken into custody. 55 The 

first statement challenged was the defendant’s response to Officer 

Deschamp’s inquiry into the last time the defendant had seen his 

mother. 56 The second statement contested was the defendant’s 

explanation about the injuries to his hand and leg. 57 The 

defendant asserted that the confusing circumstances of his arrest 

interfered with his ability to understand his Miranda rights, and 

thus voluntarily waive those rights. 58 

The trial justice focused on the fact that the defendant was 

not disoriented, his injuries were not serious, and his cocky 

behavior indicated that Victor understood the circumstances. 59 In 

addition, the trial justice did not find any overreaching, 

compulsion, or threats. 60 The court, giving due deference to the 

50. Id. at 586-87. 

51. Id. at 587. 

52. Id. 

53. Id. 

54. Id. 

55. Id. at 587-88. Review of a trial justice’s decision on a motion to 

suppress a confession involves a two-step analysis: (1) review of the trial 

justice’s finding of facts relevant to the voluntariness of the contested 

statement, and (2) application of those facts and review of the trial justice’s 

conclusion as to the voluntariness of the contested statement. Id. at 588. 

(citing State v. Humphrey, 715 A.2d 1265, 1973 (R.I. 1998)). 

56. Id. Victor replied that he had not done anything to her. Id. 

57. Id. at 588. Victor indicated that he had been in an altercation in 

downtown Providence. Id. 

58. Id. 

59. Id. at 589. 

60. Id. at 589 n.23.

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trial justice, found that his findings of fact relevant to the 

voluntariness of the contested confession were not clearly 

erroneous. 61 

The court next conducted an independent review to 

determine whether the defendant’s statement, taking into 

consideration the totality of the circumstances, was a product of 

his own free will. 62 The court noted that waiver of an individual’s 

Miranda rights cannot be presumed from either silence or the fact 

that the accused actually makes a statement. 63 However, the 

court concluded that Victor was informed of his Miranda rights 

and that he knowingly and voluntarily made the challenged 

statements to the police after being informed of those rights. 64 In 

addition, the court went on to conclude, that even if the challenged 

statements were erroneously admitted, because they merely 

constituted cumulative evidence, the error was harmless. 65 

Right to a Speedy Trial 

The defendant’s final contention was that he was denied his 

constitutionally protected right to a speedy trial and that the trial 

justice erred in his refusal to grant the defendant’s pre-trial 

motion to dismiss on these grounds. 66 The court conducted a de 

novo review of the trial justice’s determination that the 

defendant’s right had not been violated. 67 In conducting its 

review, the court considered the following factors: “[the l]ength of 

the delay; the reason for the delay; defendant’s assertion of his 

right; and [the] prejudice to the defendant.” 68 Because a delay of 

more than twelve months is “presumptively prejudicial,” 69 the 

court proceeded to examine the remaining factors and concluded 

that Victor’s right to a speedy trial had not been violated and, 

therefore, the trial justice properly denied the defendant’s motion 

61. Id. at 589. 

62. Id. 

63. Id. 

64. Id. 

65. Id. at 590. 

66. Id. (citing U.S. CONST. amend. VI; R.I. CONST. art. I, § 10). 

67. Id. at 590-91. 

68. Id. at 591 (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)). 

69. Id. (quoting State v. Crocker, 7667 A.2d 88, 91 (R.I. 2001)).

PEREZ 

5/15/2006 7:32 PM 


to dismiss. 70 

The court based its rationale on a number of findings. 

First, the great bulk of the delay was due to defense counsel’s need 

to prepare Victor’s defense, and thus, the defendant bore the 

primary responsibility for the delay. 71 Second, the defendant’s 

assertion of his right to a speedy trial did not constitute the 

equivalent of “banging on the courthouse doors.” 72 Third, the sole 

fact that the defendant was held without bail prior to his trial did 

not, by itself, constitute prejudice. 73 Rather, the court reasoned 

that “to the extent that incarceration disrupts one’s freedom, 

employment, and familial associations, . . . this disruption merely 

constitutes a prejudice inherent in being held while awaiting 

trial.” 74 

COMMENTARY 

Perez was generally an application of existing law and did 

not significantly alter Rhode Island’s legal landscape. In fact, the 

court did not seem to have any difficulty in reaching its 

conclusion. However, some of the court’s comments are worth 

noting. 

First, in finding Dr. Kelly’s presence in the courtroom 

essential to the prosecution’s rebuttal, the court declined to 

comment on the defendant’s impermissible bolstering argument. 75 

This holding implies that in the absence of the express language of 

Rule 615(3), the court might have entertained such an argument. 

However, even without the prohibition on the sequestration of an 

essential person, it is likely that the court would have reached the 

same result, because, upon closer investigation of the language of 

Rule 615, one discovers that it is materially different from that of 

Rule 615 of the Federal Rules of Evidence. Unlike the Federal 

Rule, which imposes mandatory exclusion of witnesses at the 

request of a party and only forbids sequestration in a limited 

70. Id. at 591-93. Victor Perez was arrested in the early morning of 

August 13, 1998, and did not go to trial until June of 2001. Id. at 591. 

71. Id. at 592. 

72. Id. (quoting State v. Powers, 643 A.2d 827, 833 (R.I. 1994) (stating 

the test for assessing the defendant’s assertion of his right to speedy trial)). 

73. Id. 

74. Id. (quoting State v. Austin, 643 A.2d 798, 801 (R.I. 1994)). 

75. Id. at 583 n.14.

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number of circumstances, 76 Rhode Island’s Rule 615, by use of the 

word “may” in the first sentence, makes exclusion entirely 

discretionary. 77 Thus, even if Dr. Kelly’s presence in the 

courtroom was not essential, the trial justice’s decision to allow 

Dr. Kelly to remain could only be disturbed if it was a clear abuse 

of discretion. 

Second, in evaluating the trial justice’s discretion to permit 

Dr. Kelly’s testimony regarding his diagnosis of the defendant, the 

court did not address the reasons for the prosecution’s 

nondisclosure. 78 The purpose behind Rhode Island Rule 16 is “to 

eliminate surprise and procedural prejudice,” through mandatory 

compliance with broad discovery rules. 79 In the case of 

nondisclosure by either party, the reason for such nondisclosure is 

a key factor in considering whether the violating party should 

incur sanctions. 80 Yet, in Perez, the prosecution gave no 

explanation for its failure to disclose Dr. Kelly’s diagnosis of the 

defendant. 81 In fact, in a supplemental discovery response, filed 

hours before Dr. Kelly’s testimony, when it seems apparent that 

the prosecution would have known the content of this testimony, 

the prosecution made no mention of Dr. Kelly’s intent to testify 

that Victor suffered from “antisocial personality disorder.” 82 The 

prosecution’s nondisclosure seems potentially suspect and should 

have been inspected more thoroughly. 83 

Finally, the court disposed of the defendant’s motion to 

suppress without much comment. While it is proper to give great 

deference to the trial justice’s findings of historical fact, step two 

of the analysis requires a de novo review of the voluntariness 

issue. 84 Yet, in Perez, the court appeard to rely entirely on the 

76. FED. R. EVID. 615. 

77. R.I. R. EVID. 615 (stating “At the request of a party the court may 

order witnesses excluded so that they may not hear the testimony of other 

witnesses”) (emphasis added). 

78. 882 A.2d at 582-84. 

79. R.I. SUP. R. CRIM. P. 16 (comment); See also State v. Coelho, 454 A.2d 

241, 244 (R.I. 1983). 

80. R.I. SUP. R. CRIM. P. 16 (comment). 

81. 882 A.2d at 585. 

82. Id. at 585 n.17. 

83. If nondisclosure is found to be a deliberate act of misconduct, a new 

trial should be granted “without inquiry into the degree of harm produced by 

the misconduct.” Id. (quoting State v. Garcia, 643 A.2d 180, 187 (R.I. 1994)). 

84. Id. at 589.

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5/15/2006 7:32 PM 


trial justice’s examination of the totality of the circumstances in 

reaching its conclusion. 85 In addition, the court noted that “[a] 

valid waiver of Miranda rights cannot be presumed from the . . . 

fact that the accused has actually made a confession or a 

statement.” 86 But, in Perez the court seemed to make this 

forbidden presumption. However, as the court pointed out, 

because the defendant’s statements were merely cumulative 

evidence, even if his Miranda rights had been violated, the 

decision to admit the statements amounted to harmless error. 87 

CONCLUSION 

Although Perez did not significantly depart from existing law, 

a close examination of the court’s ruling reveals some interesting 

questions and leaves open the possibility that, had a few critical 

factors been absent, the outcome may have been quite different. 

For example, had Dr. Kelly’s presence not been essential to the 

prosecution’s case, would the substitution of the word “may” in 

Rule 615 of the Rhode Island Rules of Evidence 88 in place of the 

word “shall” in the Federal Rules of Evidence 89 have been 

significant Further, had the trial justice and the court 

thoroughly investigated the prosecution’s reasons for 

nondisclosure, would the scope of Dr. Kelly’s testimony have been 

narrowed If so, would this have materially altered the outcome 

of the case Finally, what if Victor’s statements were not merely 

cumulative evidence Should those statements still have been 

admitted The court declined to comment on these issues. 

Christina Middleton Senno 

85. See id. 

86. Id. (citing State v. Amado, 424 A.2d 1057, 1062 (R.I. 1981)). 

87. Id. at 590. 

88. R.I. R. EVID. 615. 

89. FED. R. EVID. 615.

IN RE TAVARES 

5/15/2006 7:37 PM 

Criminal Law. In re Tavares, 885 A.2d 139 (R.I. 2005). The 

forensic commitment of a criminal defendant found incompetent to 

stand trial pursuant to Rhode Island General Law §§ 40.1-5.3-1 to 

40.1-5.3-18 (the forensic statutes) may be continued by the court 

even after competency has been restored. The court affirmed the 

lower court’s decision, which had continued the criminal 

defendant’s commitment throughout trial, despite the literal 

reading of the forensic statutes that the defendant “shall” be 

released once found competent. 


On November 10, 2001, twenty-one year old Anthony Tavares 

was arrested for the murder of his social worker and substance 

abuse counselor, Glen Hayes. 1 The court observed that Tavares’ 

entire life had been affected by mental illness. 2 His family history 

included an abusive sister, who suffered from mental illness 

herself, and a schizophrenic father, who was incarcerated for 

murdering a man with an ice pick. 3 Tavares began to show signs 

of mental illness at the early age of four. 4 By six, he was admitted 

into his first psychiatric treatment program, and by first grade he 

was expelled from mainstream education. 5 During childhood he 

was continuously shuffled between special schools, residential 

care facilities, juvenile detention facilities, and hospitals. 6 He was 

diagnosed with attention deficit hyperactivity disorder, but he did 

not take the prescribed medication, and by eleven he was suffering 

from paranoid and delusional symptoms. 7 His teenage years 

included acts of assault, arson, suicide attempts, violent threats to 

kill, and several psychiatric hospitalizations. 8 By nineteen, he 

1. In re Tavares, 885 A.2d 139, 141 (R.I. 2005). 

2. See id. at 143. 

3. Id. 

4. Id. 

5. Id. 

6. Id. 

7. Id. 

8. Id. 

843

IN RE TAVARES 

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was diagnosed with schizophrenia; in early 2000, he was 

involuntarily hospitalized due to audio and visual hallucinations. 9 

His condition improved with medication and he was released with 

a diagnosis of chronic paranoid schizophrenia. 10 A year later, he 

was once again hospitalized for having hallucinations. Again 

medication improved his symptoms and he was discharged. 11 

In the weeks preceding the murder of Glen Hayes, Tavares 

had stopped taking his medication and his mental health was 

notably declining. 12 On November 9, 2001, Glen Hayes and Victor 

Moniz, two mental health professionals from Johnston Mental 

Health Services, visited Tavares at his mother’s apartment in 

Cranston, where Tavares lived. 13 Tavares took his medication 

from the two men and told them that he only took the pills when 

he felt he needed to. 14 In the apartment the conversation became 

increasingly bizarre and Hayes and Moniz got up to leave. 15 At 

this point Tavares jumped up, shouted “where do you think you’re 

going” and stabbed Hayes just above the eyebrow with an eightinch 

serrated knife. 16 The knife was lodged seven inches into 

Hayes skull, and he died from the wound. 17 Tavares’ mother 

rushed in and began screaming, allowing Moniz to run away and 

call 911 for help. 18 

Initially held without bail at the Adult Correctional 

Institution (ACI), Tavares was soon placed in a psychiatric cell for 

having religious and paranoid hallucinations. 19 On November 14, 

9. Id. These hallucinations included animals killing each other, 

paranoia, and a belief that the devil was stalking him. Id. 

10. Id. 

11. Id. Tavares had reported to his doctor that the television was talking 

to him, that he knew how to clone people, and that people were trying to 

genetically alter him. He also told another doctor that he “was being raped 

and mugged by God, the mob and doctors,” that “the devil invaded his body,” 

and that his thoughts and feelings were being reported over the radio. Id. 

12. Id. at 143-44. 

13. Id. at 141-42. 

14. Id. at 142. 

15. Id. 

16. Id. 

17. Id. at 142 n.3. 

18. Id. at 142. 

19. Id. at 144. Tavares claimed to be possessed by the devil, that the 

government had taken and killed his child on Halloween, that the child was 

replaced with an exact opposite or duplicate, and that he talked to Carl Jung 

through osmosis. Id.

IN RE TAVARES 

5/15/2006 7:37 PM 


2001, Dr. Barry Wall evaluated Tavares and reported that he was 

incompetent to stand trial. 20 Tavares was committed to the 

custody of the Department of Mental Health, Retardation and 

Hospitals (MHRH), and was immediately transferred to the 

forensic unit at Eleanor Slater Hospital (ESH). 21 Upon arrival to 

ESH, Tavares assaulted a social worker and was subsequently put 

on a four-point physical restraint and chemical restraints. 22 

Tavares continued to refuse medication and on November 16, 

2001, Dr. Mustafa Surti successfully petitioned the court for 

instructions to treat Tavares with psychotropic drugs without his 

consent. 23 Under this treatment, Tavares’ condition improved. 24 

Although he still saw hallucinations, he was no longer acting upon 

them. 25 The lower court accepted a stipulation by the parties that 

Tavares was competent, on the condition that his commitment 

would continue throughout trial. 26 MHRH objected to Tavares 

being continuously hospitalized at ESH, claiming the forensic 

statute demanded his release from commitment. 27 A hearing 

justice later held that although competent, Tavares needed to stay 

at ESH throughout the trial so as to maintain competency. 28 

MHRH appealed claiming that once the hearing justice 

determined Tavares was competent to stand trial, he should have 

been statutorily released from ESH. 29 Notably, Tavares was 

subsequently found not guilty by reason of insanity at his trial for 

the murder of Glen Hayes. 30 


On appeal to the Rhode Island Supreme Court, MHRH argued 

that section 40.1-5.3-3 (i)(3)(i) of the forensic statutes foreclosed 

discretion of the hearing justice to order Tavares, as a competent 

defendant, to remain committed during trial, especially in light of 

20. Id. 

21. Id. 

22. Id. 

23. Id. 

24. Id. at 145. 

25. Id. 

26. Id. 

27. Id. 

28. Id. 

29. Id. at 145-46. 

30. Id. at 146.

IN RE TAVARES 

5/15/2006 7:37 PM 


the legislature’s use of the words “shall terminate.” 31 The court 

held that the legislative intent and purpose of the statute 

supported the interpretation that discretion was necessary on the 

part of the hearing justice to extend commitment. 32 

Mootness 

Because Tavares’ murder proceeding had carried forward and 

he was found not guilty by reason of insanity by the time the 

Rhode Island Supreme Court reviewed the issue, and he was 

committed to the custody of MHRH under a different provision of 

the forensic statute, the statutory question became moot. 33 

Despite the normal rule that deciding moot questions is not the 

role of the court, the Rhode Island Supreme Court chose to review 

the issue because it was a question of “great public importance 

that, although technically moot, [was] capable of repetition yet 

evading [their] review.” 34 

Holistic and Purposeful Statutory Construction 

The court emphasized that in statutory construction, the 

court’s ultimate goal was “to give effect to the purpose of the act as 

intended by the legislature.” 35 Furthermore, statutory 

construction was a “holistic enterprise” and when the language 

was clear and unambiguous, the court would adopt the plain and 

ordinary meaning. 36 However, they would not interpret a statute 

literally if it led to an “absurd result” that was at odds with the 

legislative purpose. 37 

The disputed provision, “Competency to Stand Trial” § 40.1- 

5.3-3, provides that a commitment shall terminate when the court 

determines that the committed defendant is competent. 38 The 

court determined that the legislative scheme was remedial in 

31. Id. at 145-46 (quoting R.I. GEN. LAWS § 40.1-5.3-3(i)(3)(i) (2005)). 

32. Id. at 151. 

33. Id. at 146. 

34. Id. at 147. 

35. Id. at 146 (quoting Oliviera v. Lombardi, 794 A.2d 453, 457 (R.I. 

2002)). 

36. Id. (quoting Park v. Ford Motor Co., 844 A.2d 687, 692 (R.I. 2004)). 

37. Id. (quoting Ellis v. R.I. Public Transit Authority, 586 A.2d 1055, 

1057 (R.I. 1991)). 

38. Id. at 148 (quoting R.I. GEN. LAWS § 40.1-5.3-3(i)(3) (2005)).

IN RE TAVARES 

5/15/2006 7:37 PM 


nature and construed the statute liberally to effectuate that 

purpose. 39 

Legislative Intent is to Try Competent Defendants 

Based on its holistic and purposeful approach, the court 

determined that the word “shall” did not prevent the court from 

exercising its discretion and extending commitment despite the 

occurrence of competency. 40 Revisiting the whole scheme of 

forensic commitment, the court reasoned that generally the 

provisions sought to govern the relationship of individuals who 

were committed under the care of MHRH, to ensure those 

individuals were provided “general rights,” including the right to 

necessary and appropriate treatment, based on their particular 

needs. 41 MHRH argued that the statute also sought to prevent a 

drain on the department’s resources; however, the court found 

that was only an incidental benefit to the paramount goal of 

protecting the criminal defendant’s rights. 42 The court reasoned 

that the statutes had a dual purpose in balancing the interests of 

a criminal defendant to be competent during trial (and not be 

indefinitely detained) with the public’s interest in prosecuting 

crimes. 43 The court determined that the intent of the legislature 

was to restore defendant’s competency so that he could be tried. 44 

Competency throughout Trial 

Despite the clear and unambiguous language of the statute, 

the court reasoned that competency is more than a momentary 

condition, and there is a judicial responsibility to ensure that the 

defendant is competent throughout trial. 45 The court found this 

concept to be supported by §40.1-5.3-3(a)(2), which defines 

competency as a mental condition, that is, the ability of the 

criminal defendant to understand “the character and 

consequences of the proceedings against him or her” and an ability 

39. Id. at 146. 

40. Id. at 151. 

41. Id. at 149. 

42. Id. 

43. See id. at 149. 

44. Id. 

45. Id. at 149-50.

IN RE TAVARES 

5/15/2006 7:37 PM 


to properly assist in the defense. 46 

The court emphasized the importance of the judge’s role in 

determining and ensuring a defendant’s competency. 47 The 

forensic statutes grant the court the authority to raise the issue of 

competency at any time throughout trial and give the judge the 

final determination about the defendant’s condition. 48 The court 

stated that competency is a legal condition, not a medical 

condition, and although the judge may rely heavily on the advice 

from medical health professionals, the final determination of 

competency belongs to the court. 49 Furthermore, because the 

court can raise its own motion to question the defendant’s 

competency at any point throughout the trial, judicial discretion is 

already a necessary and integral part of determining 

competency. 50 Tavares’ competency was fleeting and was 

dependent upon the special treatment he received at ESH. 51 If he 

was remanded to the ACI, where he would no longer receive 

special treatment and would probably again refuse his medication, 

he could have begun to rapidly decompensate. 52 Dr. Surti noted 

that Tavares’ condition would not simply have declined to his 

prior state of incompetence, but Tavares could have suffered a 

worse decline and medication would likely have been unable to 

restore any competency at all. 53 The court found that such a 

result would be unfair to all and possibly raise serious due process 

concerns for Tavares. 54 

A literal reading would also prevent the court from being 

proactive, especially when competency was obviously fleeting, and 

would instead require the much more difficult task of determining 

when the defendant had actually lost competency again during the 

proceeding. 55 Once competency had been lost, the court would 

either have had to grant a new trial, or allow the first trial to 

46. Id. at 149. 

47. Id. at 150. 

48. Id. 

49. Id. 

50. Id. 

51. Id. at 151. 

52. Id. at 149. 

53. Id. 

54. Id. at 151. 

55. Id.

IN RE TAVARES 

5/15/2006 7:37 PM 


simply pause until competency was restored. 56 The court stated 

that either situation would threaten the “economy of justice and 

waste the resources of the parties, the courts, and ESH alike.” 57 

Furthermore, allowing the court to ignore legitimate concerns 

regarding a defendant’s competency would frustrate the remedial 

goals of the forensic statutes. 58 Allowing Tavares to decompensate 

to such a degree that he would be unable to retain his competency 

at all would mean that the prosecution would be unable to proceed 

to trial. 59 Such a result would have been absurd because the state, 

Tavares, and the family of Glen Hayes each had an interest in 

seeing Tavares tried. 60 Preventing the hearing justice from taking 

steps to ensure the competency of a defendant throughout trial 

would be manifestly unfair to Tavares, the people of the state, and 

to the victim’s family. 61 

COMMENTARY 

The practical need for flexibility in situations dealing with a 

criminal defendant’s fleeting competency mandate the rejection of 

the MHRH’s formalistic and strict approach. A literal reading 

that would essentially terminate the special treatment Tavares 

was receiving under MHRH custody could potentially have caused 

more damage to the defendant, and therefore would have raised 

serious due process concerns. This is readily apparent because 

Tavares, a chronic paranoid schizophrenic who refused his 

medication, was competent solely by order of the court, which 

allowed his medication to be administered without consent. It was 

more than likely that he would not have taken his medication once 

removed from MHRH’s custody and it was questionable whether 

his competency could be restored afterwards. MHRH’s desire to 

terminate their custody of Tavares would have been short-lived, 

because if Tavares once again became incompetent, he would still 

have been committed to the care of MHRH; but then he would be 

more difficult to manage because restoration might not have been 

56. Id. 

57. Id. 

58. Id. 

59. See id. 

60. Id. 

61. Id.

IN RE TAVARES 

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possible. 

The court’s recognition that the strict language of the statute 

was intended to protect a criminal defendant from potentially 

indefinite detention without trial does little to actually provide 

guidelines for when this power should be properly exercised. A 

rule allowing courts to extend forensic commitment of a competent 

defendant may have far-reaching consequences if the rule is not 

narrowly applied to proper cases. 62 The benefits of extending 

commitment for a defendant would be that he would continue to 

receive medical treatment during his trial proceeding; however, 

such commitment may also prevent him from being released on 

bail, and subject him to unwanted treatment and chemical 

restraints. 

With proper guidelines to help lower courts determine when it 

is appropriate to exercise this discretion, the legislative dual 

purposes of concern for defendants’ rights and the public’s interest 

in prosecution would be realized. The court claims that the power 

to extend commitment is justified if a mentally fragile defendant 

is likely to decompensate during trial. 63 This does not afford very 

much protection against the government to the newly competent 

criminal defendant. Although the court correctly states that 

competency is a legal condition to be decided by the judge at his 

discretion, the court overlooks the fact that the determination of 

whether such competency is “fleeting” and likely to decline during 

trial is not a traditional part of the province of a judicial 

determination of competency. 64 

Here, Tavares had murdered his social worker, unprovoked 

and based entirely on his delusional thinking. 65 Tavares’ behavior 

prior to the act, apart from a few strange comments, indicated 

nothing to those around him, and as such, the murder was 

essentially an unpredictable act. 66 Tavares continued to attack 

others while in custody and it was because of the fear of this 

violent and unpredictable behavior that the court ordered forced 

treatment. 67 It would be overly risky, bordering on recklessness, 

62. See id. at 151. 

63. See id. at 150. 

64. See id. 

65. Id. at 142. 

66. See id. at 141-42. 

67. Id. at 144.

IN RE TAVARES 

5/15/2006 7:37 PM 


to allow an already unpredictable murderer the opportunity to fall 

deeper into delusion and wait until someone else is harmed. 

Therefore, the degree of dangerousness is an important factor in 

determining the need to extend the commitment of a criminal 

defendant after competency has been restored. 

The court also noted Tavares’ long history of mental illness 

and that his particular illness, chronic paranoid schizophrenia, 

required constant treatment. 68 It was significant that Tavares 

could not live in society without treatment and medication, and he 

was wholly dependent upon this treatment to maintain 

competency. This is an important policy concern because as 

medical advancements improve, previously incompetent 

defendants are going to be afforded the opportunity to be 

competent through medication and treatment. Therefore, the 

severity of the defendant’s illness and the ability of the defendant 

to live in society are also important factors in determining the 

need for court extension of commitment. 

Additionally, the court focused on the circumstances 

surrounding Tavares’ restored competency and the likelihood that 

he would decompensate during the trial. 69 Because Tavares 

continually refused his medication, the court had ordered his 

treatment without his consent. 70 It was only because of this 

treatment that he was deemed competent enough for the criminal 

proceedings to carry forward; the doctors admitted that once the 

medication stopped being administered, his competency would 

decline and once again he would be at the mercy of his delusions 

and paranoia. 71 Tavares was incapable of being responsible 

enough to take his medicine. Therefore, the defendant’s ability to 

maintain his own competency by taking medication and getting 

treatment outside of being in direct custody of MHRH, may also be 

a significant factor in determining whether extending 

commitment is necessary. 

By emphasizing the duty on the hearing justice to ensure that 

the criminal defendant remains competent, the court protects the 

due process rights of defendants to be competent during trial, and 

68. See id. at 143-46. 

69. Id. at 144-46. 

70. Id. at 144. 

71. Id.

IN RE TAVARES 

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prevents having to recommit them again at a later time. Allowing 

judicial discretion to extend forensic commitment prevented 

Tavares from becoming permanently incompetent, saved him from 

being inhumanely subjected to the mercy of his paranoid delusions 

and hallucinations, provided closure for the victim’s family, and 

gave the state the opportunity to prosecute Hayes’ murder. The 

literal construction of the statute would have caused so much 

damage that the court had no other choice but to permit 

flexibility, with the hope that the lower courts would not at a later 

time abuse their discretion. 

CONCLUSION 

The Rhode Island Supreme Court held that a hearing justice 

has discretion to extend the commitment of a criminal defendant 

under the forensic statutes, §§ 40.1-5.3-1 to 40.1-5.3-18, despite a 

finding that the criminal defendant is competent to stand trial. 72 

In this case, the hearing justice properly extended the 

commitment of the criminal defendant in the custody of MHRH, to 

ensure his competency would last throughout the entire trial 

proceeding. 73 

Hinna Mirza Upal 

72. Id. at 151. 

73. Id.

RASO 

5/15/2006 7:48 PM 

Criminal Procedure. Raso v. Wall, 884 A.2d 391 (R.I. 2005). 

In a case of first impression, the Rhode Island Supreme Court 

held that the doctrine of laches (unreasonable delay in pursuing a 

claim) could apply as an affirmative state defense to an 

application for postconviction relief. 


On September 19, 1973, after three days of trial, Edward 

Raso pled guilty to kidnapping and as an accessory before the fact 

to rape, sodomy, and robbery, as related to an incident that 

involved the kidnapping and rape of a teenaged girl on August 15, 

1972. 1 During the subsequent sentencing hearing on November 

28, 1973, Raso attempted to make an oral motion to withdraw his 

guilty plea. 2 Raso claimed that “at the time he pleaded guilty ‘[he] 

didn’t get too much sleep and [he] didn’t understand it’ . . . [and] 

that he desired ‘another chance to have a trial by [j]ury.’’’ 3 After 

hearing from Raso, the trial court instructed him that his attorney 

would need to file a motion and only then would he get a hearing 

on the issue of withdrawal; the court then proceeded, over 

counsel’s request for a continuance of the sentencing hearing, to 

sentence Raso to twenty-eight years for kidnapping and 

concurrent sentences of thirty-five years each for each of the other 

charges. 4 

Twenty-eight years later, Raso filed an appeal with the Rhode 

Island Superior Court for postconviction relief, 5 requesting either 

1. Raso v. Wall, 884 A.2d 391, 392 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. 

5. Id. at 393. Raso filed his application for post-conviction relief 

pursuant to Rhode Island General Law §§ 10-9.1-1 through 10-9.1-9, which 

allows for post-conviction relief for: convictions or sentences that are violative 

of the United States Constitution; convictions made by a court without 

jurisdiction to impose the sentence; convictions that exceed or are otherwise 

not in accordance with the maximum authorized sentence; convictions in 

instances when evidence of new material facts that require vacation of the 

prior conviction come to light; cases when the defendant’s sentence has 

expired or parole or probation been unlawfully revoked; and for convictions 

853

RASO 

5/15/2006 7:48 PM 


that his guilty plea be vacated, or, alternatively, that specific 

performance of the prosecution’s original sentencing 

recommendation be ordered. 6 Raso’s argument that the trial 

justice had abused her discretion in not allowing him to withdraw 

his guilty plea was denied; the court chose “not to reach the issue 

of whether the state’s assertion of the doctrine of laches” 

prevented Raso’s application for relief altogether. 7 On appeal to 

the Rhode Island Supreme Court, Raso again argued that the trial 

justice erred in refusing to hear his motion to withdraw his guilty 

plea prior to sentencing him, basing his argument on Rule 32(d) of 

the Superior Court Rules of Criminal Procedure. 8 Raso also 

argued that the Superior Court erred in denying his application 

for postconviction relief based entirely on the ground of laches. 9 


The Rhode Island Supreme Court held that the affirmative 

defense of laches may be properly invoked by the state against 

defendants praying for postconviction relief. 10 The court held that 

although an application for postconviction relief may indeed be 

made at anytime, that “to read ‘at anytime’ as constituting a 

limitless ‘Open Sesame’” would be absurd and that rather, the 

statutory term means “at any reasonable time.” 11 The court 

adopted the criteria from its prior application of laches in civil 

cases that require “a showing of ‘negligence to assert a known 

right, seasonably coupled with prejudice to an adverse party,’” 12 in 

light of the circumstances of the particular facts of the case at 

issue. 13 The court then remanded the case to the Rhode Island 

Superior Court so that the necessary factual findings and 

conclusions of law could be made as to the laches issue. 14 

that are subject to collateral attack. Id. at 393 n.2 (quoting R.I. GEN. LAWS §§ 

10-9.1-1 through 10-9.1-9(2000)). 

6. Id. at 393. 

7. Id. 

8. Id. at 394 (citing R.I. SUP. R. CRIM. P. 32(D)) 

9. Id. 

10. Id. 

11. Id. at 395. 

12. Id. (quoting Rodrigues v. Santos, 466 A.2d 306, 311 (R.I. 1983)). 

13. Id. at 396. 

14. Id.

RASO 

5/15/2006 7:48 PM 


COMMENTARY 

In this case, the Rhode Island Supreme Court follows some 

other jurisdictions that allow for the application of laches in 

criminal cases. 15 In cases such as this one, the trial court on 

remand will face a weighty balance of interests. It will have to 

choose between an individual defendant’s right to seek potentially 

legitimate postconviction relief, of the utmost importance at any 

time to the individual, and the state’s right not to be forced to 

retry such a stale case. 

CONCLUSION 

The Rhode Island Supreme Court held that the affirmative 

defense of laches, or unreasonable delay, may be used in cases 

involving application for postconviction relief. 16 


15. See, e.g., Robbins v. People, 107 P.3d 384 (Co. 2005); Wright v. State, 

711 So.2d 66 (Fla. Dist. Ct. App. 1998); Walker v. State, 769 N.E.2d 1162 

(Ind. Ct. App. 2002). 

16. 889 A.2d at 394-96.

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5/15/2006 7:55 PM 

Disability/Insurance Law. Marques v. Harvard Pilgrim 

Healthcare of New England, 883 A.2d 742 (R.I. 2005). Insurance 

companies are considered a “place of public accommodation” under 

the meaning of the American with Disabilities Act (ADA), which 

the Rhode Island Supreme Court held was not limited to physical 

structures. Additionally, the court held that the ADA “specifically 

relates” to the business of insurance, which subsequently resulted 

in the McCarran-Ferguson Act being inapplicable to insurance 

coverage cases in Rhode Island. As such, insurance companies are 

subject to the restrictions of the ADA until it can be shown that a 

decision to deny coverage was based on either sound actuarial 

principles or reasonably anticipated experience, which would place 

the insurance company under the safe harbor provision of the 

ADA. 


In August, 1995, Thomas Seymour requested and received an 

application for health-care coverage from Harvard Pilgrim 

Healthcare of New England, Inc. (HPHC-NE), which he submitted 

to HPHC-NE later that same month. 1 A determination was made 

by the HPHC-NE underwriting department that the application 

was incomplete; as a result, HPHC-NE promptly returned the 

application to Mr. Seymour requesting the missing information. 2 

On September 30, 1995, HPHC-NE notified Mr. Seymour that in 

order to proceed with the application process, Mr. Seymour would 

have to submit a completed application within two weeks. 3 Due to 

Mr. Seymour’s failure to comply with this deadline, HPHC-NE 

voided the partial application on October 15, 1995. 4 

In December 1995, the Rhode Island Department of Human 

Services (DHS) issued a “Ten-Day Notice” to Mr. Seymour due to 

his failure to cooperate with the terms of his Medicaid benefits, 

1. Marques v. Harvard Pilgrim Healthcare of New England, 883 A.2d 

742, 744 (R.I. 2005). 

2. Id. at 744. 

3. Id. 

4. Id. 

857

MARQUES 

5/15/2006 7:55 PM 


which required him to notify the DHS regarding any change in his 

financial status. 5 The notice allowed him the opportunity to 

appeal the termination of his Medicaid benefits through a hearing; 

Mr. Seymour, however, did not request such a hearing. 6 As a 

result of his noncompliance, Mr. Seymour’s Medicaid benefits 

were terminated as of December 26, 1995. 7 

On February 12, 1996, Mr. Seymour contacted HPHC-NE to 

inquire about his original application for insurance coverage from 

August, 1995. 8 At this time, Mr. Seymour was informed that due 

to his failure to provide a complete application in 1995, he would 

now need to restart the application process, the first step of which 

would be to submit a completed application. 9 Mr. Seymour 

complied with this process and resubmitted an application, which 

was denied because “he did not meet [HPHC-NE’s] eligibility 

guidelines.” 10 HPHC-NE determined that as a result of Mr. 

Seymour’s Arthrogryposis and Crohn’s Disease, he “presented an 

unacceptably high risk of loss.” 11 This denial prompted Mr. 

Seymour to file a complaint with the Department of Business 

Regulation (DBR), which subsequently contacted HPHC-NE and 

ultimately resulted in the DBR being appointed as rehabilitator of 

HPHC-NE 12 under the “Insurers’ Rehabilitation and Liquidation 

Act.” 13 Due to the imminent liquidation of HPHC-NE, the 

Superior Court enjoined further action regarding Mr. Seymour’s 

discrimination claim. 14 Mr. Seymour subsequently filed a petition 

with the Superior Court claiming the denial of his appeal violated 

not only his constitutional rights, but also his civil rights; the 

liquidator filed a cross-motion for summary judgment. 15 The 

Superior Court granted summary judgment to the liquidator; Mr 

Seymour appealed to the Rhode Island Supreme Court. 16 

5. Id. at 744-45 & n.6. 

6. Id. at 744-45. 

7. Id. at 745. 

8. Id. 

9. Id. 

10. Id. 


12. Id. 

13. R.I. GEN. LAWS § 27-14.3 (2000). 

14. 883 A.2d at 746. 

15. Id. 

16. Id.

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The Rhode Island Supreme Court held that: (1) with respect 

to the facts of this case, Rhode Island General Law § 27-41-42 17 

(subsequently repealed) was superseded by Title III of the 

American with Disabilities Act (ADA); 18 (2) an insurance company 

is a “place of public accommodation” within the meaning of the 

ADA; 19 and (3) Mr. Seymour had established a prima facie case 

under the ADA. 20 

Place of Public Accommodation 

The court begins the analysis of whether HPHC-NE is a 

“place of public accommodation” by pointing out that an 

“insurance office” is specifically listed in 42 U.S.C. § 12181(7) as a 

public accommodation under the meaning of Title III of the ADA. 21 

The court looked to precedent and pointed out that the term 

“public accommodation” need not be limited to physical places. 22 

Additionally, the First Circuit, in ruling that public 

accommodations should not be limited to physical structures, also 

noted that many service establishments which choose to conduct 

business by phone or mail are unlikely to maintain a building 

which the public may enter. 23 The Rhode Island Supreme Court 

adopted the First Circuit ruling that “public accommodation” 

should not be limited physical structures. 24 

Denial on Basis of Disability 

The court next looked to whether Mr. Seymour was in fact 

denied services by HPHC-NE on the basis of his disability. 25 Due 

to HPHC-NE’s concession that Mr. Seymour was denied insurance 

coverage because, as an individual who suffered from 

17. R.I. GEN. LAWS § 27- 41- 42(2003). 

18. 42 U.S.C. § 12181(7) (2000). 

19. 883 A.2d at 748-49. 

20. Id. at 749-50. 

21. Id. at 748 (citing 42 U.S.C. §12181(7)(2000)). 

22. Id. at 749 (citing Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s 

Ass’n of New England, Inc., 37 F.3d 12, 15, 19 (1st Cir. 1994)). 

23. Id. (citing Carparts, 37 F.3d at 19). 

24. Id. 

25. Id.

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5/15/2006 7:55 PM 


Arthrogryposis and Crohn’s Disease, his application created an 

unacceptably high risk, the court determined that it was in fact 

Mr. Seymour’s disabilities which cost him the opportunity to 

obtain insurance coverage from HPHC-NE. 26 

Applicability of the ADA 

The court then turned its analysis to whether HPHC-NE fell 

under the “safe harbor” provision found in § 501(c) of Title V of the 

ADA. 27 If certain conditions are met, the “safe harbor” provision 

specifically excludes insurance underwriters from Title I through 

III of the ADA. 28 The “safe harbor” provision also provides a 

“subterfuge clause,” which prohibits the use of the safe harbor 

provision to purposefully evade Titles I through III of the ADA by 

insurance providers. 29 If an insurance company can show that a 

decision was based on either “sound actuarial principles or 

reasonably anticipated experience,” then it is subsequently 

sheltered from the reach of the ADA and can take pre-existing 

conditions and disabilities into consideration. 30 The court then 

shifted the burden of proof to HPHC-NE, due to HPHC-NE’s 

ability to access pertinent information regarding its own denial of 

coverage to Mr. Seymour, and the difficulty that Mr. Seymour 

would likely meet in attaining this information. 31 HPHC-NE 

therefore had the burden of showing that it denied Mr. Seymour 

for either “sound actuarial principles or reasonably anticipated 

experience.” 32 If HPHC-NE was successful in this showing, then 

Mr. Seymour would bear the burden of proving that HPHC-NE’s 

reasons for denial were “in fact a subterfuge to evade the purposes 

of Title III of the ADA.” 33 

The majority then turned its discussion to the “decision tree” 

used by HPHC-NE to make the ultimate eligibility determination 

26. Id. 

27. Id. at 750. 

28. Id. 

29. Id. at 750 n.17 (citing 42 U.S.C. § 12202(c)(2000)). 

30. Id. at 750 (citing Doukas v. Metro. Life Ins. Co., 950 F.Supp. 422, 429 

(D.N.H. 1996)). 

31. Id. at 750-51. 

32. Id. at 751 (citing Doukas, 750 F.Supp. at 429). 

33. Id. at 751 n.7, 752 n.8 (citing Nicolae v. Miriam Hosp., 847 A.2d 856 

(R.I. 2004)).

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5/15/2006 7:55 PM 


in Mr. Seymour’s case. 34 The decision tree, titled “Decision Tree 

for Rhode Island Pre-Existing Condition Legislation,” is a 

flowchart which guides the underwriters in the decision making 

process. 35 Because Mr. Seymour suffered from a pre-existing 

condition and did not have continuous coverage for the twelve 

months preceding the application, HPHC-NE guidelines allowed 

the underwriter to deny or limit the coverage. 36 Here, coverage 

was denied altogether; the court reasoned that because HPHC-NE 

failed to put forward specific evidence to justify the complete 

denial of coverage to Mr. Seymour, summary judgment should not 

have been granted in favor of HPHC-NE. 37 

The court concluded that HPHC-NE had not satisfied the 

burden of proving that its decision to completely deny Mr. 

Seymour insurance coverage was based on either “sound actuarial 

principles or was related to HPHC-NE’s actual or reasonably 

anticipated experience.” 38 Without having made the above 

showing, HPHC-NE had yet to establish that it fell under the 

“safe harbor” provision of the ADA and, thus, it could be subjected 

to Title III. 39 The court ultimately held that unless HPHC-NE 

met the above burden, Mr. Seymour had established a prima facie 

case under the ADA. 40 The court remanded to the Superior Court 

where HPHC-NE will be given the opportunity to show that its 

decision was based either on “sound actuarial principles or 

reasonably anticipated experience.” 41 

Dissent – Justice Robinson 

Justice Robinson argued in his dissent that the McCarran- 

Ferguson Act rendered the ADA inapplicable to Mr. Seymour’s 

case. 42 He stated: “(1) that Congress has spoken quite definitively 

in the McCarran-Ferguson Act; (2) that said Act bars the 

application of the ADA to insurance coverage cases like this one; 

34. Id. at 751-52. 

35. Id. at 751. 

36. Id. at 752. 

37. Id. 

38. See id. at 752. 

39. Id. at 750-52. 

40. Id. at 752. 

41. Id. 

42. Id. at 753.

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and (3) that there is no legally defensible way to circumvent that 

clear congressional directive.” The McCarran-Ferguson Act reads 

in pertinent part: “No Act of Congress shall be construed to 

invalidate, impair, or supersede any law enacted by any State for 

the purpose of regulating the business of insurance . . . unless 

such Act specifically relates to the business of insurance . . . .” 43 

Justice Robinson pointed to case law which set the precedent that 

“federal laws should not be construed to supersede state laws 

‘regulating the business of insurance.’” 44 

Justice Robinson argued that there was a presumption that 

Congress left the regulation of the business of insurance to the 

states and that the McCarran-Ferguson Act is a strong example of 

this presumption. 45 Therefore, unless the federal law “specifically 

relates” to the business of insurance, regulation of such businesses 

is to be left to the state. 46 Justice Robinson further contended 

that, due to the particularly wide scope of issues covered by the 

ADA, it cannot be said to “specifically relate” to the business of 

insurance. 47 Therefore, he stated that the McCarran-Ferguson 

Act renders the ADA inapplicable to insurance coverage issues 

such as the one presented here. 48 Although Justice Robinson 

conceded that there was some mention of insurance in the ADA, 

he stated that the law was in fact “general” and unlikely to be 

“read as relating specifically to the business of insurance.” 49 Due 

to the reverse preemptive effect made possible by the McCarran- 

Ferguson Act, when a federal statute is “general in character,” the 

ADA is inapplicable to issues of insurance coverage. 50 

Regarding the “safe harbor” language in the ADA, Justice 

Robinson argued that it in fact offers protection to the traditional 

practices of the insurance industry. 51 This being said, the 

provision does not constitute an attempt to specifically regulate 

43. 15 U.S.C. § 1012 (b)(2000). 

44. 883 A.2d at 754 (citing Metro. Life Ins. Co. v. Massachusetts, 471 

U.S. 724, 736 (1985) (quoting 15 U.S.C. § 1012(b)(2000))). 

45. Id. 

46. Id. 

47. Id. at 755. 

48. Id. 

49. Id. 

50. See id. 

51. Id.

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5/15/2006 7:55 PM 


the business of insurance. 52 In fact, as Justice Robinson pointed 

out, the purpose of the safe harbor provision appeard to be to 

protect the insurance industry from the scope of the ADA, not to 

subject it to specific regulation. 53 In his conclusion, Justice 

Robinson reiterated his belief that the McCarran-Ferguson Act 

was a clear congressional statute that plainly precluding 

application of the ADA to insurance coverage cases. 54 

COMMENTARY 

The major disagreement between the dissent and the majority 

was whether the ADA specifically related to the business of 

insurance. The majority opinion argued that the ADA does 

specifically relate to the business of insurance because it “contains 

two fundamental provisions that specifically relate to the business 

of insurance.” 55 Conversely, Justice Robinson pointed out in his 

dissent that the ADA has a broad focus and thus cannot be 

considered to specifically relate to the business of insurance. 56 

The dissent went on to cite Humana, Inc. v. Forsyth, 57 in which 

the United States Supreme Court pointed to Section 2(b) of the 

McCarran-Ferguson Act, noting that “federal legislation general 

in character shall not be ‘construed to invalidate, impair, or 

supersede any law enacted by any State for the purpose of 

regulating the business of insurance.’” 58 

Although the ADA, as the majority points out, makes two 

references to insurance, Justice Robinson’s argument is not 

without merit. In fact, the ADA’s “safe harbor” provision provides 

the insurance industry with further insulation from claims under 

Title III. The ADA therefore does not appear to regulate the 

business of insurance; rather its language provides the industry a 

path to circumvent the ADA’s proscription of discrimination. In 

addition to the safe harbor provision, the ADA defines an 

insurance office as a place of public accommodation under the 

52. Id. 

53. Id. 

54. Id. at 756. 

55. Id. at 747 n.13. 

56. Id. at 755. 

57. 525 U.S. 299, 306 (1999). 

58. 883 A.2d at 755 (quoting Humana, Inc. v. Forsyth, 525 U.S. 299, 306 

(1999) (citing 15 U.S.C. § 1012(b)(2000))).

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meaning of the ADA. 59 It is unlikely that Congress intended this 

list of private entities to specifically relate to the business of 

insurance. This provision merely points out that an insurance 

office is a place of public accommodation; it does not attempt to 

regulate the means by which the industry should determine 

eligibility for insurance coverage. 

The McCarran-Ferguson Act was passed by Congress for the 

purpose of leaving the business of regulating the insurance 

industry to the states. 60 A legislative directive as clear as the 

McCarran-Ferguson Act should only be circumvented where there 

is no question as to the specific regulation of insurance by the 

federal Act. Here, the majority found that the ADA specifically 

relates to the business of insurance. 61 In so doing, it effectively 

took the control of the regulation of the Rhode Island insurance 

industry in determining its eligibility requirements away from the 

state. Instead, the insurance industry must now satisfy the safe 

harbor provision of the ADA in order to make an eligibility 

determination involving a pre-existing condition. This appears to 

be what Congress sought to avoid by the enactment of the 

McCarran-Ferguson Act. 

The decision here had the effect of nullifying § 27-41-42 (since 

repealed) of the Rhode Island General Laws, which gave insurance 

providers the option to deny or limit the coverage offered to 

individuals with a pre-existing condition who had failed to 

maintain continuous coverage for the twelve months preceding 

their application. 62 The majority argued that § 27-41-42 

effectively denied equal access to health insurance because that 

provision had an adverse impact only on those individuals with a 

pre-existing condition. 63 Ultimately, the majority determined that 

application of the ADA was appropriate and, as such, the 

insurance company retained the right to show that it made its 

denial decision for a valid reason under the safe harbor 

provision. 64 

59. See 42 U.S.C. 12181(7)(2000). 

60. Marques, 883 A.2d at 753 n.22 (citing Metro. Life Ins. Co., v. 

Massachusetts, 471 U.S. 724 (1985)). 

61. Id. at 747 n.13. 

62. See R.I. GEN. LAWS § 27-41-42 (repealed 2000). 

63. See 883 A.2d at 747 n.13. 

64. See id. at 747-50.

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Under the safe harbor provision, the insurance company must 

show that its decisions are based on “actuarial data or on the 

company’s actual or reasonably anticipated experience relating to 

the risk involved.” 65 Given the likelihood that insurance 

companies have data and experience with the risks involved in 

providing coverage to clients with pre-existing conditions, they 

will likely satisfy these requirements with ease. As a result, it is 

likely that most insurance providers will meet this exception to 

the ADA and will continue with their normal course of eligibility 

determinations, an outcome which bears a striking resemblance to 

the now repealed § 27-41-42 of the Rhode Island General Laws. 

CONCLUSION 

The Rhode Island Supreme Court held that an insurance 

provider falls within the meaning of a public accommodation 

under the meaning of the ADA 66 and that the ADA specifically 

relates to the business of insurance making it applicable to the 

present case. 67 

Kimberly A. Tracey 

65. Id. at 750 (citing Doukas v. Metro. Life Ins. Co., 950 F.Supp. 422, 429 

(D.N.H. 1996)). 

66. Id. at 749. 

67. Id. at 747.

DECAMP 

5/15/2006 8:23 PM 

Employment Law. DeCamp v. Dollar Tree Stores, 875 A.2d 

13 (R.I. 2005). A gender-based disparate treatment discrimination 

claim does not depend upon a prima facie showing of hostile work 

environment, and a gender-based hostile work environment claim 

does not involve a burden-shifting framework. Additionally, when 

the major life activity under consideration to establish a disability 

is working itself, the statutory requirement that the disability 

“substantially limits” the major life activity requires that the 

employee allege she is unable to work in a broad class of jobs. In 

the context of work-related depression or anxiety, if an employee’s 

doctor states that the employee cannot return to work for that 

particular employer, then that fact supports the legal conclusion 

that the employee is no longer qualified to do the job and no 

accommodation exists to allow her to return to work, which 

precludes the employee from establishing a prima facie case of 

disability discrimination. 


Plaintiff Maria L. DeCamp was hired by Dollar Tree as a 

store manager in May of 2000, and the defendant, Mr. Braz, was 

her direct supervisor. 1 Braz was a Dollar Tree district manager 

and was investigated and counseled in 1999 regarding his 

treatment of women. 2 In December of 2000, DeCamp sought 

medical treatment and was diagnosed with major depression, 

which in the opinion of her psychiatrist, was “related to a 

demanding, abusive and deteriorating relationship with her 

immediate supervisor.” 3 DeCamp was treated with therapy and 

medication and was cleared to return to work for an employer 

other than Dollar Tree on June 14, 2001. 4 While in treatment, 

DeCamp contacted human resources at Dollar Tree, who 

conducted an investigation of Braz, finding some negative 

1. DeCamp v. Dollar Tree Stores, Inc., 875 A.2d 13, 18 (R.I. 2005). 

2. Id. at 17. 

3. Id. at 19. 

4. Id. 

867

DECAMP 

5/15/2006 8:23 PM 


comments regarding his treatment of associates, but nothing 

related to mistreatment of females. 5 Although the investigation 

did not involve treatment of DeCamp specifically, following the 

investigation, Braz attended antidiscrimination training. 6 

DeCamp was granted six weeks of medical leave by Dollar 

Tree, during which time her future employment was discussed. 7 

Plaintiff claimed in her deposition that she suggested different 

solutions that would have allowed her to return to work, but she 

was informed that her leave would expire on February 2, 2001, 

and she would have to return to work for Braz. 8 DeCamp followed 

her doctor’s instructions and did not return to work; subsequently, 

on February 6, 2001, Dollar Tree sent DeCamp a letter stating 

that her failure to return to work constituted a voluntary 

resignation. 9 DeCamp then filed a discrimination claim with the 

Rhode Island Commission for Human Rights, and after waiting 

the requisite time, filed an employment discrimination suit 

against defendants in Superior Court. 10 DeCamp alleged that 

Braz’s treatment of her met the requirements of gender 

discrimination and that Dollar Tree’s decision to terminate her 

while on medical leave constituted disability discrimination. 11 

Defendants’ motions for summary judgment were granted as to all 

claims and DeCamp subsequently appealed. 12 


On appeal, DeCamp argued that the trial justice erred in 

granting the defendants’ motions for summary judgment. 13 The 

Rhode Island Supreme Court reviewed the plaintiff’s case based 

on two distinct theories of gender-based employment 

discrimination: gender-based disparate treatment and genderbased 

hostile work environment. 14 The court found that the 

motion justice made a clear error by blending the tests for 

5. Id. 

6. Id. 

7. Id. 

8. Id. 

9. Id. 

10. Id. 


12. Id. at 20. 

13. Id. 

14. Id. at 21.

DECAMP 

5/15/2006 8:23 PM 


disparate treatment and hostile work environment. 15 The court 

stated that the disparate treatment theory does not depend on a 

prima facie showing of hostile work environment, and that hostile 

work environment claims do not utilize a burden-shifting 

framework. 16 As a result, the court held that the motion justice 

erred by failing to require defendants to offer a legitimate, 

nondiscriminatory reason for terminating the plaintiff as is 

required to overcome a prima facie showing of gender-based 

disparate treatment. 17 The court also held that the summary 

judgment granted as to the hostile work environment claim was a 

reversible error as the plaintiff created a genuine issue of material 

fact as to each element of that claim. 18 

The court next held that summary judgment was correct as to 

the disability discrimination claim, finding that if an employee’s 

doctor states that the employee cannot return to work for that 

particular employer, then that fact alone supports a legal 

conclusion that the employee no longer is qualified to do the job 

and no accommodation exists to allow her to return to work, 

making it impossible to meet the second element of disabilitybased 

disparate treatment. 19 

Employment Discrimination in Rhode Island 

Employment discrimination in Rhode Island is prohibited by 

several statutes. 20 The State Fair Employment Practices Act 

(FEPA) prohibits employer discrimination based on gender or 

disability with respect to “terms, conditions or privileges of 

employment.” 21 The Civil Rights Act of 1990 (RICRA) provides 

that all persons should have the equal benefit of the laws 

regardless of sex or disability and defers to FEPA for definitions of 

such. 22 The Rhode Island Supreme Court has adopted a multitude 

of tests that are used to determine employment discrimination, 

15. Id. at 21 n.6. 

16. Id. (citing Lewis v. Forest Pharm., Inc., 217 F. Supp. 2d 638 (D. Md. 

2002)). 

17. Id. at 22. 

18. Id. at 24. 

19. Id. at 26. 

20. Id. at 20. 

21. R.I. GEN. LAWS § 28-5-7(1)(i),(ii) (Supp. 2004). 

22. R.I. GEN. LAWS § 42-112-1(a),(d) (Supp. 2004).

DECAMP 

5/15/2006 8:23 PM 


several of which were addressed in by the court in DeCamp. 

Gender-Based Disparate Treatment 

Gender-based disparate treatment involves a three-step 

burden-shifting analysis as established by the United States 

Supreme Court in McDonnell Douglas Corp. v. Green. 23 The 

plaintiff must establish a prima facie case by showing that: she is 

a member of the protected class; she was performing the job at a 

level sufficient to rule out inadequate job performance; she 

suffered adverse job action by the employer; and that the employer 

sought a replacement with equivalent qualifications. 24 The second 

step requires the employer “offer a legitimate, nondiscriminatory 

reason for the adverse employment action,” and the third step 

shifts the burden back to the plaintiff to show that the professed 

reason is pretext. 25 The court characterized the requirements for 

a prima facie case as “modest” and stated that the plaintiff, as a 

female, was a member of a protected class and was in good 

standing prior to the dismissal. 26 The court also stated that the 

termination was an adverse event regardless of its 

characterization as a “voluntary resignation” by the employer, and 

that since there was no corporate downsizing, it could be assumed 

that the position would be filled with an individual with roughly 

equal qualifications. 27 

More significantly, the court found that the motion justice, in 

combining the theories of disparate treatment and hostile work 

environment, failed to identify the defendants’ legitimate, 

nondiscriminatory reason for the incident. 28 In order to overcome 

a prima facie finding of disparate treatment, the defendants had 

to meet the second requirement of the burden-shifting framework, 

which they failed to do. 29 The court held that summary judgment 

was reversible error and that the case had to be remanded to the 

trial court for proper application of the burden-shifting 

23. 411 U.S. 792 (1973). 

24. DeCamp, 875 A.2d at 21 (citing Smith v. Stratus Computer, Inc., 40 

F.3d 11, 15 (1st Cir. 1994)). 

25. Id. at 22. 

26. Id. 

27. Id. 

28. Id. 

29. Id.

DECAMP 

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framework, as a reviewing court cannot search the record for that 

reasoning. 30 

Gender-Based Hostile Work Environment 

A claim of gender-based hostile work environment mandates 

that the court look at the record as a whole, with regard to the 

totality of the circumstances. 31 Looking at the record as a whole, 

the court stated that the following elements must be met: 

(1) the employee is a member of a protected class; (2) the 

employee was subjected to unwanted harassment; (3) that 

harassment was based upon his or her sex; (4) that the 

harassment was sufficiently severe and pervasive so as to 

alter the conditions of plaintiff’s employment and create 

an abusive work environment; (5) that harassment was 

both objectively and subjectively offensive, such that a 

reasonable person would find it hostile or abusive and the 

victim in fact did perceive it to be so; and (6) that some 

basis for employer liability has been established. 32 

The court found that in DeCamp, the first two elements were 

met, as the plaintiff was a member of a protected class and 

considered the conduct unwelcome. 33 As to the third element, the 

court held that although none of the incidents involving Braz and 

plaintiff involved express references to gender, Braz’s recorded 

past history of treating women poorly was the “nexus between 

Braz’s treatment of plaintiff and [the] conclusion that he 

mistreated her because of her gender.” 34 

Next, the court stated that finding an abusive work 

environment under the fourth element requires that FEPA and 

RICRA are violated when “the workplace is permeated with 

discriminatory intimidation, ridicule, and insult . . . that is 

sufficiently severe or pervasive to alter the conditions of the 

victim’s employment and create an abusive working 

30. Id. 

31. Id. at 22 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-67 

(1986)). 

32. Id. at 22-23 (quoting O’Rourke v. City of Providence, 235 F.3d 713, 

728 (1st Cir. 2001) (internal citations and quotations omitted)). 

33. Id. at 23. 

34. Id.

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5/15/2006 8:23 PM 


environment” 35 The court observed that at least seven incidents of 

direct mistreatment of the plaintiff occurred, ranging from violent 

actions to verbally abusive comments; thus a reasonable juror 

could find an abusive work environment given these facts. 36 

Next, the court discussed the fifth element of a hostile work 

environment claim: subjective and objective offense. 37 The court 

stated that this element is based upon all the surrounding 

discriminatory incidents including frequency, severity, physical 

threats, humiliation, offensive utterances, and whether or not it 

all unreasonably interferes with performance of work. 38 

Objectively, the court stated, conduct such as kicking over a 

register and screaming at workers could clearly be considered 

offensive by a reasonable person. 39 The court also found subjective 

evidence in the plaintiff’s tears and depression. 40 Finally, the 

court reasoned that employer liability could be found through 

Dollar Tree’s knowledge of Braz’s mistreatment of employees in 

general, and of women in particular, thus satisfying the sixth and 

final element. 41 The court held that given the factual variances 

involved in all of the elements, the plaintiff created a genuine 

issue of material fact and thus summary judgment was 

improper. 42 

Disability Discrimination 

The court stated that disability discrimination can be 

established through the use of the disparate treatment theory and 

its burden-shifting framework. 43 The court stated that an 

employee must first prove a prima facie case of disability 

discrimination by showing that: he or she was disabled within the 

meaning of FEPA and RICRA; that the employee was qualified, or 

35. Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) 

(internal quotations omitted)). 

36. See id. at 23-24. 

37. Id. at 24. 

38. Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 

(1998)). 

39. Id. 

40. Id. 

41. Id. 

42. Id. 

43. Id. at 24-25 (citing Equal Employment Opportunity Comm’n v. 

Amego, Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997)).

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stated differently, that with or without reasonable accommodation 

was able to perform the essential functions of the job; and that the 

discharge was in whole or in part a result of the disability. 44 If a 

prima facie case is established, the employer must rebut with a 

legitimate nondiscriminatory reason for discharge, at which time 

the employee must respond with proof that the reason offered by 

the employer is pretext. 45 The court held that, in DeCamp, the 

plaintiff failed to meet the elements required to establish a prima 

facie case of disability discrimination. 46 

The court noted that disability is defined as “any physical or 

mental impairment which substantially limits one or more major 

life activities.” 47 As extrapolated from FEPA and RICRA, major 

life activities include “functions such as caring for one’s self, 

performing manual tasks, walking, seeing, hearing, speaking, 

breathing, learning, and working.” 48 The court held that although 

depression qualifies as a mental impairment 49 the plaintiff’s 

injury did not substantially limit major life activities. 50 The 

plaintiff had claimed that the major life activity in question was 

her ability to work, and the court held that, in such a case, the 

phrase “substantially limits” requires at minimum an inability to 

work a broad class of jobs. 51 Thus, when the major life activity 

that is substantially limited is work, a conflict between an 

employee and a supervisor, “even one that triggers the employee’s 

depression[,] is not enough to establish that the employee is 

disabled, so long as the employee could still perform the job under 

a different supervisor.” 52 The court pointed out that much of the 

plaintiff’s testimony showed that her condition prevented her from 

working for Braz, but not from working in general; the plaintiff in 

44. Id. at 25 (citing Equal Employment Opportunity Comm’n, 110 F.3d at 

141 n.2). 

45. Id. at 25 (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 

(2003)). 

46. Id. at 25-26. 

47. Id. at 25. 

48. Id. 

49. Id. at 25 (citing Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 20 

(1st Cir. 2004)). 

50. Id. 

51. Id. (citing Sutton v. United Air Lines, Inc. 527 U.S. 471, 491 (1999)). 

52. Id. (quoting Schneiker v. Fortis Ins. Co., 200 F.3d 1055, 1062 (7th 

Cir. 2000)).

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5/15/2006 8:23 PM 


fact stated that she would return to work for Dollar Tree if they 

fired Braz, and may have even returned if he apologized and 

acknowledged his mistreatment. 53 As a result, the court held that 

even in the most favorable light, the plaintiff’s depression did not 

substantially limit her ability to work a broad range of jobs. 54 

The plaintiff challenged the lower court’s finding that she was 

not disabled by stating that, despite her testimony regarding her 

ability to return to work, her psychiatrist’s statement that she 

could not in fact return to work until June 14, 2001 created a 

genuine issue of fact regarding her ability to work a broad range of 

jobs. 55 In addressing this argument, the court stated that given 

the plaintiff’s burden of proving every element, a conflict existed 

between proving the first and second element as a result of the 

psychiatrist’s statement. 56 This conflict occurred as a result of the 

requirement that the employee be “qualified” or able to perform 

the essential job functions with or without reasonable 

accommodation and the requirement that the plaintiff must still 

possess the ability to function competently and productively in the 

employment situation with or without modification of that 

situation. 57 With depression specifically, “if an employee’s doctor 

states that the employee cannot return to work for that particular 

employer, then that fact supports a legal conclusion that the 

employee no longer is qualified to do the job and no 

accommodation exists to allow him or her to return to work.” 58 

The doctor’s statement thus created an insurmountable dilemma 

for the plaintiff; although the statement introduced a question of 

material fact as to the disability element, the very same evidence 

resulted in the plaintiff’s inability to meet the “qualified” 

element. 59 Thus the psychiatrist’s claim that the plaintiff could 

never return to work for Dollar Tree established that no 

reasonable accommodation existed that would permit her to do her 

job. 60 As a result, the court held that the plaintiff could not 

53. Id. at 26. 

54. Id. 

55. Id. 

56. Id. 

57. Id. 

58. Id. (quoting Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th 

Cir. 1996)). 

59. Id. 

60. Id.

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establish a prima facie case of disability-based disparate 

treatment. 61 

COMMENTARY 

The Rhode Island Supreme Court did an excellent job of 

clarifying the rules of law as to gender-based employment 

discrimination. Similarities in establishing a prima facie case for 

both disparate treatment and hostile work environment led the 

lower court to intertwine the rules. The court clarified the 

necessary steps for a disparate treatment claim and reinforced the 

use of the burden-shifting framework, separately laying out the 

elements for a hostile work environment claim. As to genderbased 

disparate treatment, the court had no choice but to remand 

for a determination based on the employer’s legitimate nondiscriminatory 

basis for dismissal, as the lower court never 

reached this issue, given their misinterpretation of the rule. As to 

gender-based hostile work environment, the lower court was too 

quick to dismiss the plaintiff’s claim, as Braz had a clear history of 

poor treatment of women, as documented by Dollar Tree, and it 

would be an injustice if the plaintiff were denied a claim, given the 

factual leeway present in each element. The court was correct in 

looking to Braz’s acknowledged history of poor treatment of 

women and establishing it as the nexus between his offensive 

treatment of the plaintiff and gender discrimination; to hold 

otherwise would be to reward Braz for treating women poorly so 

long as he did not reference gender. 

The court’s decision regarding disability discrimination, 

although technically sufficient, presents several alarming issues. 

By holding that the evidence that established a genuine issue of 

fact as to the plaintiff’s disability also precluded satisfaction of the 

qualified element, the court failed to logically consider the 

complexity of the circumstances. The psychiatrist’s findings 

showed that the depression caused by Braz prohibited the plaintiff 

from working a broad range of jobs. Although the statement of the 

psychiatrist concluded that the plaintiff could not work for Dollar 

Tree, this was clearly the result of the plaintiff’s relationship with 

Braz and nothing else. This evidence, taken in conjunction with 

plaintiff’s testimony that she could work at Dollar Tree if not for 

61. Id. at 27.

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5/15/2006 8:23 PM 


Braz, showed that the plaintiff was qualified to do the job, but 

could not as a result of Braz. In other words, the plaintiff was 

qualified for the position of Dollar Tree manager. There was 

likely enough evidence to overcome summary judgment on the 

issue of disability discrimination, and as such, perhaps the court 

should have allowed the issue to go to a jury. 

CONCLUSION 

The Rhode Island Supreme Court made several important 

holdings in regard to employment discrimination based on gender 

and disability. The court reestablished the burden-shifting 

framework for gender-based disparate treatment claims. 62 Also, 

the court allowed the use of an employer’s knowledge of past 

mistreatment of women to assist in satisfying the elements in a 

gender-based hostile work environment claim, even in the absence 

of specific gender references. 63 Most significantly, in the context of 

work-related depression or anxiety, the court held that if an 

employee’s doctor stated that the employee could not return to 

work for that particular employer, then that fact alone supports a 

legal conclusion that the employee is no longer qualified to do the 

job. As a result, no accommodation exists to allow him or her 

return to work, which paradoxically precludes that employee from 

establishing a prima facie case of disability discrimination. 64 

Matthew Jill 

62. Id. at 22. 

63. Id. at 22-24. 

64. Id. at 26.

GORMAN 

5/15/2006 8:29 PM 

Family Law. Gorman v. Gorman, 883 A.2d 732 (R.I. 2005). 

Family court judges are barred from exercising power to reform 

property settlement agreements that are incorporated by 

reference, but not included in, the final divorce judgment, unless 

the Family Court finds that the property settlement agreement is 

ambiguous or the product of mutual mistake. When a property 

settlement agreement is not ambiguous and not the product of 

mutual mistake, the Family Court can refuse to enforce the 

agreement to the extent that it is inequitable, but does not hold 

the power to modify the agreement to ameliorate the inequity. 

Therefore, the Family Court has the ability to direct the parties to 

negotiate a new property settlement agreement for its review and 

approval, or to order the parties to proceed to trial in the event the 

property settlement agreement does not reflect the division of 

property determined to be equitable by the Family Court. 


The plaintiff, Kathleen M. Gorman, filed for divorce from the 

defendant, Daniel W. Gorman, on February 12, 2002, after more 

than thirty-five years of marriage, claiming an irremediable 

breakdown of the marriage had occurred, due to irreconcilable 

differences. 1 The defendant husband filed a counterclaim. 2 On 

January 24, 2003, a hearing was held before the Family Court 

during which the lawyers for both parties stated they desired to 

make a written agreement regarding the division of property. 3 An 

absolute divorce was granted on February 7, 2003. 4 On that day, 

the Family Court also approved the written property settlement 

agreement which stated that the defendant’s “Employee Stock 

Option Plan” (ESOP) was to be divided evenly between the 

parties. 5 

On April 15, 2003, the plaintiff filed a motion seeking 

1. Gorman v. Gorman, 883 A.2d 734, 734 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. 

5. Id. 

877

GORMAN 

5/15/2006 8:29 PM 


clarification of the written property settlement agreement and the 

intent of the parties in regards to the agreement, because she had 

learned that the defendant held an additional stock plan, the 

“Stock Bonus Plan,” (SBP) which was not mentioned in the 

original property settlement agreement. 6 The defendant objected 

to this motion. 7 Subsequently, on May 2, 2003, the plaintiff filed a 

Rule 60(b) motion for relief (under the Family Court Rules of 

Procedure for Domestic Relations) 8 and a motion to modify the 

property settlement agreement, claiming that the terms were 

based on mistake of fact, misrepresentation, inadvertence, and/or 

fraud, to which the defendant objected. 9 The plaintiff asserted 

that because the defendant was not only a participant in the 

ESOP, but also the SBP, that the property settlement agreement 

did not represent the even division agreed upon by the parties in 

the Family Court order. 10 The defendant argued that the property 

settlement agreement should be read literally to exclude the SBP 

because the agreement implicitly excludes non-specified plans 

from inclusion. 11 

After a hearing by the Family Court on July 15, 2003 to 

address the discrepancy, the court issued a bench decision on 

August 20, 2003. 12 The court concluded that the property 

settlement agreement was ambiguous as to whether the SBP was 

to be divided among the parties, and, as a result, the property 

settlement agreement should be construed as dividing equally 

both the ESOP and the SBP, even though the SBP was not 

specified in the written agreement. 13 To reach this decision, the 

court considered the negotiations between the parties and the 

testimony of the parties, which, the Family Court held, 

demonstrated intent that all stock plans be divided equally 

between the parties. 14 The court also stated that it would be 

improper to reward the defendant for failing to clarify an apparent 

misunderstanding by the plaintiff regarding the existence of the 

6. Id. at 735. 

7. Id. 

8. See R.I. R. Pro. D.R. 60(b). 

9. 883 A.2d 735. 

10. Id. 


12. Id. 

13. Id. at 736. 

14. Id.

GORMAN 

5/15/2006 8:29 PM 


SBP. 15 The court entered an order directing the division of all 

stocks as of the date of the execution of the property settlement 

agreement. 16 Following the entry of final judgment, the defendant 

appealed. 17 


On appeal, the defendant argued that the agreement was 

unambiguous because it specifically mentioned the ESOP and 

made no mention of the SBP 18 In addition, the defendant argued 

that the Family Court lacked the authority to reform the property 

settlement agreement. 19 

Finding of Ambiguity 

The court first addressed the defendant’s argument regarding 

the ambiguity of the agreement. 20 The court stated that the 

Family Court has “broad power to review and to decide whether to 

approve proposed property settlement agreements, given the 

special status that the law accords to agreements between 

spouses.” 21 Therefore, the Family Court was acting within its 

statutory power to oversee divorce proceedings, which includes the 

review of the division of marital assets. 22 When the Family Court 

received the plaintiff’s motions after the divorce was granted, it 

treated the motions as Rule 60(b) motions, which allowed the 

court to review the property settlement agreement and to realize 

that the agreement did not embody the fifty-fifty division the 

Family Court had determined was equitable. 23 

The Rhode Island Supreme Court stated that although it 

understood the equitable concerns that led the Family Court to 

determine that the agreement was ambiguous, it considered the 

agreement to be an “unambiguous contractual document” because 

it only mentioned the ESOP and did not even hint at the existence 

15. Id. 

16. Id. 

17. Id. 

18. Id. 

19. Id. at 740. 

20. Id. at 736-40. 

21. Id. at 737. 

22. Id. 

23. Id.

GORMAN 

5/15/2006 8:29 PM 


of the SBP. 24 The Supreme Court held, however, that even if the 

property settlement agreement was unambiguous, it was not selfexecuting, 

and was still subject to review and approval by the 

Family Court. 25 Therefore, although the court held that the 

contract was unambiguous, it also held that the Family Court 

acted within its powers when it reviewed the property settlement 

agreement and determined that the agreement should not be 

enforced due to the agreement’s inequity. 26 

Modification of the Agreement 

Next, the court addressed the defendant’s argument that the 

Family Court lacked the authority to reform the agreement. 27 The 

defendant argued that because the property settlement agreement 

was not merged into the final divorce decree, it could only be 

modified if both parties consented to the modification. 28 The court 

started this portion of the analysis by stating that there must be 

an initial finding of mutual mistake in contract formation before 

that contract can be subject to judicial reformation. 29 Since the 

Family Court stated that it did not find any evidence of mutual 

mistake during the negotiations and the execution of the property 

settlement agreement, that court is, therefore, bound by that 

holding and its limitations. 30 

The Family Court does not have the authority to reform or 

modify a contract like the property settlement agreement that is 

merely incorporated by reference, but not merged, into the divorce 

decree, absent the consent of both parties. 31 The Rhode Island 

Supreme Court found the property settlement agreement to be 

unambiguous and found no evidence of mutual mistake, which left 

reformation of the contract beyond the power of the Family Court 

justice. 32 The court held that the Family Court has the power to 

either order the parties to negotiate a new property settlement 

24. Id. at 738. 

25. Id. at 738-39. 

26. Id. at 740. 

27. Id. at 740-41. 

28. Id. at 740. 

29. Id. 

30. Id. at 741. 

31. Id. 

32. Id.

GORMAN 

5/15/2006 8:29 PM 


agreement for review of and approval by that court, or to direct 

the parties to proceed to trial. 33 

COMMENTARY 

The court used the holding in this case to speak about the 

limitations of the Family Court’s powers. By articulating that the 

Family Court does not have the power to alter an inequitable 

property settlement agreement that is not part of the divorce 

decree, the court ensures that the Family Court does not overstep 

its statutory authority, which is admittedly broad when dealing 

with divorce property settlement agreements. 34 Although the 

holding appears to be correct in regards to statutory and contract 

law, it has the effect of limiting the Family Court’s ability to deal 

with divorce settlements in a fair and timely manner, and 

additionally the effect of making divorcing parties subject to 

deceit by the other party. 

In the interest of remaining true to established contract law, 

the court has ensured that already long and difficult divorces are 

potentially made longer. The court carefully applies contract law 

to the property settlement agreement, even though it differs from 

a standard contract because it is not immediately self-executing. 

In addition, the property settlement agreement is clearly not a 

traditional contract made at “arms-length,” as it arises out of a 

divorce proceeding, in which both sides can be hostile to the 

opposing party’s interests. Requiring parties to redraft and 

resubmit their property settlement agreement each time a flaw is 

found within the agreement only prolongs the difficulty of getting 

divorced. The Family Court is charged with finding an equitable 

way to divide property among former spouses, but under this 

holding, can no longer use its discretion to achieve an equitable 

result in a timely manner for both parties. By not allowing the 

Family Court to repair a property settlement agreement so that it 

represents the actual understanding achieved by the parties 

during the divorce proceedings, this holding undermines the broad 

discretion of the Family Court to deal with divorce proceedings. 

When the Family Court modifies a property settlement 

33. Id. 

34. Id. at 737.

GORMAN 

5/15/2006 8:29 PM 


agreement to represent the expressed intentions of the parties, it 

saves both the time and the attorneys’ fees that would be required 

to draft a new agreement and have it approved by the court. The 

additional legal fees and time wasted when the court must order 

the parties to renegotiate a property settlement agreement can 

end up punishing the deceived party for the misdeeds of the 

deceiver. In addition, it gives one side an opportunity to 

temporarily withhold a divisible asset from the other side. 

Perhaps the best way prevent such unfair advantage is to allow 

the court to reform the agreement upon a showing of inequity. 

Unfortunately, the Family Court no longer has that ability. 

CONCLUSION 

The Rhode Island Supreme Court held that the Family Court 

does not have the ability to reform an inequitable property 

settlement agreement unless there is a finding of mutual mistake 

between the parties. Standard contract law applies to the 

property settlement agreements that are not part of the divorce 

decree and as a result, contract law, which demands an initial 

finding of mutual mistake, prior to reformation by the court, 

applies. In this case, the property settlement agreement was 

found to be inequitable, but due to a lack of mutual mistake, the 

revisions made by the Family Court were not valid and the parties 

need to either enter into a new property settlement agreement or 

proceed to trial. 

Elizabeth A. Suever

IN RE MACKENZIE 

5/15/2006 8:34 PM 

Family Law. In re Mackenzie C., 877 A.2d 674 (R.I. 2005). 

In applying the Daubert standard for admission of scientific 

evidence, in which the court acts as a “gatekeeper” to insure that 

evidence is both relevant and reliable, the Rhode Island Supreme 

Court ruled that a Family Court justice did not err in reversing an 

earlier finding of abuse. The reversal was based on the admission 

of new expert testimony as to a child’s medical condition and its 

potential contribution to the child’s injuries, and as such, both the 

trial justice’s admission of the evidence and his subsequent 

dismissal of the original abuse petition were made without error. 


The case of Mackenzie C. came before the Rhode Island 

Supreme Court after what the court termed a “complex [and] 

Dickensian procedural history.” 1 It all began when the 

Department of Children, Youth and Families (DCYF) filed an ex 

parte abuse and neglect petition against Mackenzie’s parents on 

December 28, 1998, after Mackenzie was brought to Hasbro 

Children’s Hospital at nine weeks old, crying uncontrollably, with 

something seemingly wrong with her right arm. 2 A probable 

cause hearing began on January 8, 1999, but was discontinued at 

the parents’ request; subsequently, on April 12, 1999, DCYF filed 

a termination of parental rights (TPR) petition, which alleged 

“parental unfitness because of cruel or abusive conduct pursuant 

to G.L. 1956 § 15-7-7(a)(2)(ii),” 3 based in part on the treating 

physician’s opinion that Mackenzie suffered from “battered child 

syndrome.” 4 

The trial occurred over twenty days, commencing on June 11, 

1999, and concluding on March 23, 2000. 5 Mackenzie’s parents 

presented one expert, Dr. Colin Paterson, who testified that 

Mackenzie suffered from “temporary brittle bone disease,” a 

1. In re Mackenzie C., 877 A.2d 674, 676 (R.I. 2005). 

2. Id. at 678. 

3. R.I. GEN. LAWS § 15-7-7(a)(2)(ii)(2000). 

4. 877 A.2d at 678. 

5. Id. at 679. 

883


5/15/2006 8:34 PM 


condition that could explain the nineteen fractures evident upon 

her body at the time of the treating physician’s examination. 6 

The trial justice rejected the parents’ expert’s testimony, and 

found that the child “suffered from no abnormal bone disease . . . 

[or from] any metabolic or endocrinology conditions.” 7 

Additionally, the trial justice went on to find that the “conduct of 

the parents to the child was of a cruel and abusive nature” and 

that they were unfit due to this finding of abuse. 8 As such, 

Mackenzie was committed to DCYF’s care, custody and control; 

however, the court deferred deciding on the TPR petition until an 

impartial psychiatric evaluation of both parents could be 

conducted. 9 This evaluation was subsequently conducted by Dr. 

Bernard Katz, whose recommendation that a three-year case plan 

be developed by DCYF and completed by the parents prior to 

dismissal of the termination petition was adopted by the court. 10 

On January 12, 2001, DCYF filed for (and received) a stay of this 

reunification plan from the Rhode Island Supreme Court, which 

later additionally directed the Family Court to decide the TPR 

petition on the merits. 11 

On November 1, 2001, after several days of testimony, the 

Family Court justice denied the TPR petition, finding that 

Mackenzie and her parents deeply loved each other, and that 

“there [wa]s no evidence whatsoever that . . . the parents create[d] 

any risk or constitute[d] any risk to the child if there [wa]s 

reunification.” 12 The trial justice ordered that DCYF immediately 

create a reunification plan, an order that DCYF filed an appeal to 

on November 8, 2001, as well as filing a motion for a stay of the 

order on November 20, 2001. 13 The motion for stay was denied; 

DCYF did then submit a reunification plan, which the trial justice 

rejected, noting that it did not contain “any initial step[s] toward 

gradual reunification.” 14 

Mackenzie’s parents eventually filed a motion for 

6. Id. 

7. Id. 

8. Id. 

9. Id. 

10. Id. at 679-80. 


12. Id. 

13. Id. 

14. Id.


5/15/2006 8:34 PM 


reconsideration and/or new trial as to the abuse petition, which 

the Family Court justice had sustained. 15 This motion was 

subsequently granted on October 23, 2003, when the case was 

reopened, with the admission of new expert testimony (by Dr. 

Cathleen Raggio) as to Mackenzie’s medical condition, evidence 

that simply did not exist at the original time of trial. 16 On 

November 5, 2004, the trial justice reversed his earlier finding of 

abuse and neglect, noting that there was no competent medical 

evidence at the time of trial to support the parents’ position, but 

that such evidence had since come into existence. 17 The trial 

justice considered two issues in reversing his earlier decision: 

Whether Dr. Raggio’s expert testimony was admissible as “based 

on scientifically valid methodologies or principles” and sufficiently 

tied to the facts of the case, and if so, if DCYF sustained “its 

burden of proof with respect to the abuse” allegation with clear 

and convincing evidence. 18 

The trial justice allowed the admission of Dr. Raggio’s 

testimony and concluded that the court was convinced “by the 

medical testimony produced . . . [and t]hat there is absolutely no 

testimony with respect to any tendency of the parents to be 

abusive.” 19 The court then concluded that the state had failed to 

meet its burden of clear and convincing evidence and dismissed 

the prior finding of abuse. 20 The trial justice later issued a followup 

order providing for visitation and gradual reunification; DCYF 

responded with an appeal and a motion to stay the order. 21 On 

appeal, DCYF raised several issues; the only one that the court 

addressed was “whether the trial justice erred in dismissing the 

abuse petition after reconsidering the parents’ new evidence.” 22 


In addressing DCYF’s appeal of the trial justice’s final 

decision and order, the Rhode Island Supreme Court utilized a 

15. Id. at 681. 

16. Id. 

17. Id. 

18. Id. 

19. Id. at 682. 

20. Id. 

21. Id. 

22. Id.


5/15/2006 8:34 PM 


two-step analysis: first, it addressed the admissibility of Dr. 

Raggio’s expert testimony to determine if the trial justice abused 

his discretion in allowing the evidence in; second, it analyzed 

whether the trial justice erred in dismissing the original abuse 

petition after considering the parents’ newly admitted evidence. 23 

Admissibility of Dr. Raggio’s Expert Testimony 

In appealing the trial justice’s admission of Dr. Raggio’s 

testimony, DCYF claimed that this expert “fail[ed] to establish a 

valid methodology to test her theories, including her inability to 

test her theory, paucity of peer review, unknown rate of error, lack 

of general acceptance in the orthopedic community” and as such, 

“her unique opinions . . . w[ere] created merely for purposes of 

testifying.” 24 The trial justice allowed Dr. Raggio’s testimony in 

based on her “superb credentials in the field,” as well as his 

interpretation of her testimony as applying “known scientific 

principles of bone development” and not junk science. 25 

In analyzing the trial justice’s decision, the Rhode Island 

Supreme Court applied the now familiar Daubert 26 analysis, as 

embodied in the language of Rule 702 of the Federal Rules of 

Evidence, 27 in which the trial justice is viewed as a “gatekeeper” to 

“ensure that any and all scientific testimony or evidence admitted 

is not only relevant, but [also] reliable.” 28 In such an analysis, 

when a party is introducing potentially “novel” expert testimony, 

the expert’s testimony may only be admitted if the testimony will 

be “scientific knowledge that . . . will assist the trier of fact.” 29 

23. Id.at 682-86. 

24. Id. at 682-83. 

25. Id. at 683. 

26. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 

27. FED. RULES OF EVID. 702 (stating that: “If scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence 

or to determine a fact in issue, a witness qualified as an expert by knowledge, 

skill, experience, training, or education, may testify thereto in the form of fact 

or opinion.”) 

28. 877 A.2d at 683 (quoting Daubert, 509 U.S. 579, 597 (1993)). 

29. Id. (quoting Dipetrillo v. Dow Chem. Co., 729 A.2d at 677, 687 (R.I. 

1999)).


5/15/2006 8:34 PM 


In reviewing the trial court’s analysis, the Rhode Island 

Supreme Court focused on the trial justice’s findings as to Dr. 

Raggio’s credentials and the methodology that Dr. Raggio utilized 

in forming her opinion as to Mackenzie’s condition. 30 The court 

noted that a trial justice is not expected to become an expert him 

or herself as to the substance of the scientific area being testified 

about, and need not focus on the expert’s conclusions, “but rather, 

whether the reasoning used in forming the expert conclusion was 

sound.” 31 Additionally, in satisfying the Daubert standard, the 

court found that Dr. Raggio’s testimony would aid the trier of fact 

(in this case, the trial court justice) in its analysis and that the 

trial court justice did not abuse his discretion in admitting the 

testimony as relevant. 32 

Dismissal of the Abuse Petition 

In its appeal, DCYF also alleged that the trial justice erred in 

dismissing the prior abuse petition, in light of the parents’ newly 

admitted testimony by Dr. Raggio. 33 DCYF claimed that Dr. 

Raggio’s diagnosis of Mackenzie as having Ehlers-Danlos 

Syndrome (and her feeling that this was the causation of 

Mackenzie’s many fractures, rather than parental abuse) was not 

supported by the evidence, and as such, the trial justice erred in 

reversing his prior determination of abuse. 34 

In examining the trial court’s reversal and subsequent 

dismissal of the prior abuse petition, the Rhode Island Supreme 

Court focused on the lower court’s original finding that there was 

“no direct evidence of abuse on the part of the parents . . . [but 

that instead a permissible inference could be made that] the 

parents had inflicted or allowed to be inflicted upon the child, 

physical injury” and that “it is possible that in five years or so, any 

difficulties may be resolved to the satisfaction of the entire 

scientific-medical community.” 35 Indeed, the Rhode Island 

Supreme Court noted, this appears to have been just the case, as 

30. Id. at 684. 

31. Id. 

32. Id. at 685. 

33. Id. 

34. Id. 

35. Id.


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four years later, with the emergence of Dr. Raggio’s testimony, it 

appeared that the child was suffering from “Ehlers-Danlos type 

syndrome” and that this syndrome, rather than parental abuse, 

was the cause (with other medical conditions) of the child’s many 

fractures. 36 

Consequently, due to both the newly admitted expert 

testimony and the lack of any direct physical evidence of abuse by 

the parents, the Rhode Island Supreme Court upheld the trial 

court’s reversal of the earlier finding of abuse, and the lower 

court’s subsequent dismissal of the abuse petition altogether, as 

DCYF failed to meet its evidentiary burden with clear and 

convincing evidence. 37 

COMMENTARY 

From the time of the original ex parte order of detention by 

the trial justice (December 25, 1998), until the time of the final 

issuance of the Rhode Island Supreme Court’s opinion (July 18, 

2005), Mackenzie and her parents indeed embarked on what 

turned out to be “a complex, Dickensian, procedural journey” 38 

that can only have created tremendous stress, turmoil, and 

destruction to each of them as individuals and as a family unit. 

Understanding that newly acquired medical knowledge and 

technology are facts of life in an ever-changing information 

landscape, it nonetheless seems unacceptable that this family 

could not have found legal closure earlier (by one means or 

another) and been allowed to get back on the path to reunification 

and eventual healing. If nothing else, the history of Mackenzie’s 

case serves as a commentary on the entire child welfare and social 

services structure within the state. The fact that the original trial 

justice in this case did reconsider at all his own earlier finding of 

abuse with the newly admitted evidence, is evidence that even in 

the most difficult of cases, there is hope of progress. 

CONCLUSION 

The Rhode Island Supreme Court held that a trial justice’s 

admission of newly discovered expert testimony as to a child’s 

36. Id. at 685-86. 

37. Id. at 686. 

38. Id. at 676.


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medical condition was not in error and that the trial justice’s 

reconsideration and dismissal of the abuse petition was, based on 

this new evidence of the child’s Ehlers-Danlos Syndrome, 

proper. 39 


39. Id. at 685-86.

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Property Law. Palazzolo v. State, No. 88-0297, 2005 WL 

1645974 (R.I. Super. July 5, 2005). “Constitutional law does not 

require the state to guarantee a bad investment.” 1 

Nor does a 

regulatory taking occur where the background principles of public 

nuisance or the public trust doctrine act to limit the plaintiff’s 

property rights. Where the plaintiff’s “bundle of rights” do not 

provide for the proposed use of the property, any regulation 

proscribing that use does not result in a taking under the Fifth 

Amendment. 


The plaintiff, Anthony Palazzolo, first acquired an interest in 

the subject property in 1959. 2 The site consisted of eighteen acres 

of land south of Winnapaug Pond, “a tidal, salt water pond” in 

Westerly, Rhode Island. 3 Immediately after having acquired an 

interest in the site, Palazzolo sold six lots located on the more 

upland portions of the site. 4 Approximately one half of the 

remaining site lies below mean high water (MHW). 5 Soil 

conditions make the majority of the site challenging for home 

construction. 6 With the exception of an upland area, 

redevelopment of much of the site would require significant 

excavation of existing soils and “as much as six feet of fill.” 7 

Although several homes in the area have been constructed on 

filled wetlands, filling has not generally occurred in any area of 

the salt marsh. 8 In addition to a valuable habitat for wildlife, the 

salt marsh has an “amenity value” to the property owners in the 

1. Palazzolo v. State, No. 88-0297, 2005 WL 1645974, *2 (R.I. Super. 

July 5, 2005) 

2. Id. 

3. Id. 

4. Id. 

5. Id. The court accepted a survey filed with the court “as substantial 

scientific evidence as to the location of the mean high water (MHW) mark in 

1986,” the year of the alleged taking. Id. at *2 n.16. 

6. Id. at *2. 

7. Id. 

8. Id. 

891

PALAZZOLO 

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area and the community. 9 

On several occasions since the 1960s Palazzolo has sought 

permission to fill his site for redevelopment. 10 In 1985, Palazzolo 

applied to the Rhode Island Coastal Resources Management 

Council (CRMC) to fill his site for construction of a beach facility. 11 

Palazollo claimed the date that application was denied, March 3, 

1986, as the date his property was taken. 12 Following a 1997 

bench trial, the Superior Court held there was no taking on the 

grounds that the regulations prohibiting development of the site 

were in effect prior to Palazzolo’s acquiring an interest in the 

land. 13 Because the regulations had been in effect at the time, the 

court reasoned that Palazzolo “could not have had [any] 

reasonable investment-backed expectations.” 14 In addition, the 

court held that Palazzolo had not been denied all beneficial use of 

his property where the state would allow the development of one 

lot valued at approximately $200,000. 15 The trial court also found 

that Palazzolo’s development vision would constitute a public 

nuisance, thus barring any compensation. 16 

The Rhode Island Supreme Court affirmed the lower court 

decision on the basis that the appeal was not ripe because 

Palazzolo had never properly submitted a development application 

to the CRMC. 17 In 2001, the United States Supreme Court 

reversed that decision, holding the case was ripe and remanded 

the case for a Penn Central 18 analysis. 19 The U.S. Supreme Court 

also affirmed the conclusion that the regulations did not deprive 

Palazzolo of all economic use of his property because “the value of 

the upland portions [was] substantial.” 20 On June 24, 2002, the 

9. Id. at *3. 

10. Id. at *1 n.2 A 1960s application to fill his site with dredge materials 

from Winnapaug Pond was followed by another application to fill the site in 

1983 and again in 1985. Id. 


12. Id. 

13. Id. at *1. 

14. Id. 

15. Id. 

16. Id. 

17. Id. (citing Palazzolo v. R.I., 746 A.2d 707 (R.I. 2000)). 

18. Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). 

19. See generally Palazzolo v. Rhode Island, 533 U.S. 606 (2001). 

20. Palazzolo v. State, 2005 WL 1645974 at *11 n.70 (quoting Palazzolo 

v. Rhode Island, 533 U.S. 606, 616 (2001)).

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Rhode Island Supreme Court remanded the case to the Superior 

Court. 21 


On remand, the plaintiff disputed the precision of a survey 

establishing the high water mark and argued that he could 

economically develop his property. 22 Palazzolo further disputed 

the classification of Winnapaug Pond as a tidal pond subject to the 

public trust doctrine. 23 The state, citing law of the case, countered 

that, consistent with the court’s conclusion at the first trial, the 

development constitutes a public nuisance and thus bars a takings 

claim. 24 Furthermore, the state argued that the public trust 

doctrine precluded the economic development of Palazzolo’s site 

because nearly one-half of the site sat below the mean high water 

mark and such portion did not belong to Palazzolo to develop. 25 

Public and Private Nuisance 

The Superior Court found Palazzolo’s development plan 

constituted a public nuisance at the first trial in 1997. 26 Thus it 

was within the court’s discretion to let the prior ruling stand 

under the law of the case. 27 However, because significant new 

evidence was introduced, the court reconsidered the state’s claim 

of nuisance. 28 

Actionable nuisances fall into two classifications: public and 

private. A private nuisance involves an interference with the use 

and enjoyment of land. It involves a material interference with 

the ordinary physical comfort or the reasonable use of one’s 

21. Id. at *1. “[A]dditional evidence was taken over eleven days to 

augment the 1997 trial record” and a tidal survey was filed with the court. Id. 

22. Id. at *3. 

23. Id. 

24. Id. 

25. Id. 

26. Id. (citing Palazzolo v. State, 746 A.2d 707 (R.I. 2000) (affirming the 

lower court’s decision)). 

27. Id. at *3-*4. The law of the case provides “that ordinarily after a 

judge has decided an interlocutory matter in a pending suit, a second judge, 

confronted at a subsequent phase of the suit with the same question in the 

identical matter, should refrain from disturbing the first ruling.” Id. at *4 

(quoting State v. Infantolino, 355 A.2d 722, 726 (R.I. 1976)). 

28. Id.

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property. A public nuisance is an unreasonable interference with 

a right common to the general public. It is behavior that 

unreasonably interferes with the health, safety, peace, comfort or 

convenience of the general community. 29 

The court found that the proposed development was 

“practically certain” to result in “substantial damage” to the 

ecology of Winnapaug Pond. 30 Thus the court held that because 

clear and convincing evidence demonstrated the development 

would constitute a public nuisance, Palazzolo had no right to 

develop his site as proposed. 31 Without a right to develop the site 

as proposed, the state’s denial of the same development could not 

result in a taking. 32 

No neighboring property owner brought a claim of private 

nuisance. 33 Even had Palazzolo’s development been built, the 

likely result would have been a non-actionable obstruction of the 

neighbor’s view. 34 Thus, the court held Palazzolo’s development 

would not constitute a private nuisance. 35 

Public Trust Doctrine 

Citing the United States Supreme Court’s decision in Lucas v. 

South Carolina Coastal Council, 36 the court reiterated the point 

that a taking cannot result from a prohibited use that was not 

part of the land owner’s title and that one’s title is subject to 

certain background principles such as nuisance and the public 

trust doctrine. 37 The public trust doctrine provides that land 

below the high water mark is held by the state for the benefit of 

the public. 38 The court accepted the survey filed with the court as 

29. Id. (quoting Citizens for Pres. of Waterman Lake v. Davis, 420 A.2d 

53, 59 (R.I. 1980) (internal citations omitted)). 

30. Id. at *5. 

31. Id. 

32. Id. 

33. Id. at *6. “Historically the law of private nuisance has been applied to 

conflicts between neighboring, contemporaneous land uses.” Id. (quoting 

Hydro-Mfg., Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I. 1994)). 

34. Id. 

35. Id. 

36. 505 U.S. 1003 (1992). 

37. Palazzolo, 2005 WL 1645974 at *6. 

38. Id. at *7. The public trust doctrine is also incorporated into the Rhode 

Island Constitution. Id. (citing R.I. CONST. art 1, §17).

PALAZZOLO 

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accurately establishing the mean high water line for 1986 and 

thus concluded that fifty percent of Palazzolo’s site sat below that 

mark. 39 The court, also finding Winnapaug Pond a tidal body of 

water, concluded that half of Palazzolo’s land was subject to the 

public trust doctrine. 40 Because the doctrine applied to only half 

of the site, it could not completely bar Palazzolo’s taking claim. 41 

However, the court reasoned that it had a direct relationship to 

his reasonable investment-backed expectations under a Penn 

Central analysis. 42 

Penn Central Analysis 

The remand instructed the court to analyze Palazzolo’s claim 

under the Penn Central test. 43 Analysis under Penn Central 

includes the following three factors: “(1) the character of 

governmental action, (2) the economic impact of the action on the 

claimant, and (3) the extent to which the action interfered with 

the claimant’s reasonable investment-backed expectations.” 44 

Before conducting its analysis, the court concluded that the 

relevant parcel under review did not include the six lots that 

Palazzolo had sold shortly after he acquired his interest. 45 The 

regulatory scheme charged with the taking never applied to those 

six lots. 46 

The court quickly addressed the character of the government’s 

action, along with the plaintiff’s argument that he should not 

alone have to bear the burden of this regulation. 47 The court 

reasoned that the restrictions on coastal development have the 

same impact on all owners of tidal salt marsh. 48 Thus, the 

regulatory scheme did not particularly target the plaintiff. 49 In 

addition, the court reasoned it would be unreasonable to require 

the government to compensate property owners for every change 

39. Id. at *6. 

40. Id. 

41. Id. at *7. 

42. See id. 

43. Id. at *8. (citing Penn Central, 438 U.S. 124 (1978)). 

44. Id. 

45. Id. 

46. Id. 

47. Id. at *9. 

48. Id. 

49. Id.

PALAZZOLO 

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in the general law. 50 Thus the character of the government’s 

action here would not constitute a taking. 51 

Likewise, the court found the circumstances failed to support 

a taking under the second prong of the test. 52 Accounting for the 

unique costs required to develop this site and the amenity value of 

the marsh, the court found Palazzolo’s alleged loss of a threemillion 

dollar profit unreliable. 53 A “battle of trial experts” ended 

with the court accepting the state’s presentation of expected 

development costs and appraisal values. 54 However, the court 

noted that neither side accounted for the amenity value of the 

existing landscape upon which any development would intrude. 55 

Thus the court found even the state’s estimated profit might be 

“optimistic.” 56 The court then concluded that Palazzolo would 

benefit more financially by selling the property in its undeveloped 

state because of the greater value in the upland area of the site 

that allowed construction of a single home. 57 Regardless of the 

effect of the public trust doctrine on curtailing the size of the 

parcel, the court found the potential costs for the development 

would result in a loss to the plaintiff. 58 Thus the regulations 

prohibiting that development could not have an adverse economic 

impact on Palazzolo. 59 

Pursuant to the remand, the court focused on the third factor 

of the Penn Central analysis, Palazzolo’s reasonable investmentbacked 

expectations. 60 Looking at Palazollo’s earliest interest in 

the land, the court concluded that whatever investment-backed 

expectations he held, they were not “realistically achievable.” 61 No 

similar developments had ever been proposed for the area. 62 The 

immediate sale of the six “prime” buildable lots left Palazzolo with 

50. Id. at *9 n.43 (citing Palazzolo v. Rhode Island, 533 U.S. at 627). 

51. Id. at *9. 

52. Id. at *11. 

53. Id. at *9, *10. 

54. Id. at *10. 

55. Id. at *11. 

56. Id. 

57. Id. 

58. Id. 

59. Id. 

60. Id. at *12. 

61. Id. (emphasis omitted). 

62. Id.

PALAZZOLO 

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land that was “not readily capable of development.” 63 The court 

pointed out that the original seller of the property had prior real 

estate experience, must have known of the challenges to 

developing the site, and presumed that these challenges 

“undoubtedly weighed heavily in [his] practical decision to sell out 

to Palazzolo.” 64 Furthermore, because the public nature of land 

below the mean high water mark “is an ancient doctrine,” the 

court found that Palazzolo knew or should have known that any 

development would require filling the site which would require 

state permission. 65 In fact, the court noted thatm, as early as 

1962, Palazzolo’s application for a filling permit included an 

acknowledgment that the filling was “within the public tide 

waters of the state.” 66 Likewise, the court noted the application 

forms gave notice of the state’s regulation of tidewaters. 67 “Rhode 

Island law regulated tidewaters and the filling of nearby flats as 

early as 1876.” 68 

The court then considered Greater Providence Chamber of 

Commerce v. Rhode Island 69 where the Rhode Island Supreme 

Court issued guidance regarding parcels subject to the public trust 

doctrine. 70 That guidance indicated that a coastal land owner 

could establish free and clear title to land that is partially below 

mean high water if the owner fills the land with the “acquiescence 

or the express or implied approval of the state and improves upon 

the land in justifiable reliance on the approval.” 71 Here, the 

numerous denials of Palazzolo’s requests for permits to fill his 

land along with the fact the he had made no effort to improve the 

land in reliance on any state action or acquiescence, negated the 

possibility that he had established title to the land. 72 In short, 

“[p]laintiff’s title is clearly subject to the public trust doctrine.” 73 

63. Id. at *12 n.73. 

64. Id. at *12. 

65. Id. 

66. Id. at *12 n.75. 

67. Id. at *14 n.78. 

68. Id. 

69. 657 A.2d 1038 (R.I. 1995). 

70. Palazzolo, 2005 WL 1645974 at *13. 

71. Id. (quoting Greater Providence Chamber of Commerce, 657 A.2d at 

1044). 

72. Id. 

73. Id.

PALAZZOLO 

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Given the state’s historical role in regulating the filling of 

tidal waters, the public trust doctrine, the transfer of the prime 

lots at the time of his investment, and the difficulties in 

developing the site, the court found that “Palazzolo’s reasonable 

investment-backed expectations were modest.” 74 

COMMENTARY 

The opinion’s conclusion is soundly rooted in the background 

principles of nuisance. Nevertheless, the takings analysis raises a 

few questions. For one, the court’s totality-of-the-circumstances 

analysis of Palazzolo’s investment-backed expectations includes 

evidence of his business associate’s decision to sell to Palazzolo. Is 

it reasonable to impute the business associate’s real estate 

experience and judgment to the plaintiff as an element in 

determining the plaintiff’s reasonable expectations Is it also 

reasonable to assign knowledge of the public trust doctrine’s 

application to land below the high water mark, as determined in 

1986, when the investment-backed expectations are measured at 

the time of his acquisition in 1959 Is an understanding of the 

effect of the “ancient doctrine” of public trust on the bundle of 

property rights, particularly the distinction between state 

regulations and sovereign title, a reasonable element of the 

average citizen’s investment-backed expectations 

Notwithstanding these questions, the court’s analysis reminds 

us of a clear and simple threshold in takings analysis that often 

gets overlooked by issues of compensation and, more recently, a 

renewed interest in defining public use. The Fifth Amendment’s 

bar against taking private property without just compensation 75 

applies to private property. The state cannot be charged with 

taking a property interest that it already owns. Given Rhode 

Island’s extensive coastline, the market interest in waterfront 

property and the state’s legitimate interests in managing its 

resources through coastal regulation will inevitably conflict. The 

strength of the background principles in nuisance and the public 

trust doctrine establish a solid foundation to resolve those 

conflicts by defining property rights at the outset. 

74. Id. at *14. 

75. See U.S. CONST., amend. V.

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CONCLUSION 

The Rhode Island Superior Court held that given the 

circumstances presented in this case, the proposed development 

would constitute a public nuisance and thus preclude any takings 

claim. 76 Regardless of that finding, the public trust doctrine 

proscribed the plaintiff’s development of one-half of the site. 77 As 

to the remaining land available for development, the court found 

that the regulations did have an adverse economic impact where 

the unique costs made development unprofitable. 78 Furthermore, 

a reasonable person would have recognized the problematic 

character of the site, thus the plaintiff could have little or no 

reasonable investment-backed expectations to develop the site as 

proposed. 79 Most directly, the plaintiff’s “title did not include a 

property right to develop the parcel as he proposed.” 80 

Colin M. McNiece 

76. See Palazzolo, 2005 WL 1645974 at *4-*5. 

77. Id. at *6-*7. 

78. Id. at *9-*11. 

79. Id. at *12. 

80. Id. at *15.

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State Affairs and Government. Tanner v. Town Council of 

East Greenwich, 880 A.2d 784 (R.I. 2005). Local citizens possess 

standing to bring actions against public bodies under the Open 

Meetings Act when a public notice hinders their right to be 

informed of agenda items at public meetings. Remedial public 

notice, in compliance with the Open Meetings Act, does not render 

a case moot; the issue of the first violation remains justiciable. 

Whether a violation of the Open Meetings Act has indeed occurred 

is judged according to a “totality of the circumstances” standard, 

taking into account how the public would perceive the notice as 

compared to what actually occurred at the meeting. Finally, 

attorney’s fees, a mandatory award for successful plaintiffs in 

Open Meetings Act suits, must be awarded according to a 

standard of “justice and fairness.” 


The Open Meetings Act (OMA), as enacted by the Rhode 

Island Legislature, requires that “public business be performed in 

an open and public manner and that the citizens be advised of and 

aware of the performance of the public officials and the 

deliberations and decisions that go into the making of public 

policy,” 1 and that a “statement specifying the nature of the 

business to be discussed” be provided to the public. 2 The 

controversy in Tanner v. Town Council of East Greenwich 3 arose 

from an alleged OMA violation which occurred, on October 19, 

2001, when the East Greenwich town council posted a public 

notice which was intended to inform local citizens of an October 

23, 2001, town council meeting. 4 In an attempt to comply with the 

OMA, the public notice stated that, at the October 23, 2001 

meeting, the agenda would include “Interviews for Potential 

Board and Commission Appointments” to the town zoning and 

1. R.I. GEN. LAWS § 42-46-1 (2000). 

2. R.I. GEN. LAWS § 42-46-6(b) (2000). 

3. Tanner v. Town Council of E. Greenwich, 880 A.2d 784, 789 (R.I. 

2005). 

4. Id. 

901

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planning boards. 5 At the meeting, however, the town council not 

only interviewed the potential appointees but also proceeded to 

vote on them, selecting three of the six. 6 Later, Frederick S. 

Tanner decided to file a complaint against the town council, 

claiming that it had violated the OMA, because it had not 

provided proper notice in advance of the council’s decision to vote. 7 

On November 14, 2001, Mr. Tanner informed the town council 

that he would bring suit against the town for failing to provide a 

sufficient “statement specifying the nature” of what was actually 

to occur at the October 23, 2001 meeting. 8 

In the face of Mr. Tanner’s challenge, the town council posted 

a second notice, regarding a November 19, 2001 meeting, which 

would have on its agenda “Boards and Commissions 

Appointments.” 9 During that second meeting, however, the 

council would refrain from the voting issue and instead schedule a 

third meeting for November 26, 2001, at which time the council 

would address the issue. 10 The council again posted a notice 

which clearly indicated that a future vote would take place on the 

board appointments. 11 On November 26, 2001, the board 

reaffirmed the three appointments previously made on October 23, 

2001. 12 Mr. Tanner did not challenge the November 26, 2001 

appointments, but maintained that the violation of the OMA at 

the October 23, 2001 meeting must be remedied. 13 

In his complaint, Mr. Tanner moved for summary judgment 

and an award of three possible remedies available under the 

OMA: a civil fine, attorney’s fees, and an injunction. 14 The 

hearing justice granted summary judgment to Mr. Tanner, finding 

that the notice led the public to believe that only interviews, and 

not a vote on the appointments, would take place at the October 

23, 2001 meeting. 15 

5. Id. 

6. Id. 

7. Id. 

8. Id. at 789-90. 

9. Id. at 789. 

10. Id. 


12. Id. 

13. Id. at 789 n.3, 790. 

14. Id. at 789-90. 

15. Id. at 790.

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A later, second phase of the trial would decide Mr. Tanner’s 

remedy. At that later remedial hearing, the hearing justice 

determined that a civil fine could not be imposed on the town 

council because Mr. Tanner was unable to establish that the town 

council’s OMA violation was done “willfully or knowingly.” 16 The 

hearing justice awarded Mr. Tanner attorney’s fees and costs in 

the amount of $11,193.89. 17 Unless such an award would be 

“unjust,” the award of attorney’s fees is mandatory in instances of 

OMA violations. 18 The hearing justice found no special 

circumstance that would render such an award “unjust.” 19 The 

East Greenwich town council appealed the judgment to the Rhode 

Island Supreme Court, alleging four points of error. 20 

1. Standing 


Mr. Tanner’s standing to bring suit against the town council 

was the first issue addressed by the Rhode Island Supreme 

Court. 21 The town council averred on appeal that Mr. Tanner’s 

status as a resident of East Greenwich did not in itself give him 

standing to bring suit and that the alleged OMA violation had not 

caused him any harm. 22 The court readily noted, however, that 

one has standing if a controversy causes “injury in fact” or if one is 

granted standing as the “beneficiary of express statutory 

authority.” 23 Mr. Tanner did not claim to suffer, nor did he 

attempt to prove, any economic “injury in fact;” therefore, his 

standing needed to rest on statutory authority. 24 The OMA does 

indeed grant standing to any “citizen or entity” who is “aggrieved 

as a result of violations” of the OMA. 25 Provided Mr. Tanner had 

been “aggrieved” by the actions of the town council on October 23, 

16. Id. at 791. 

17. Id. at 790. 

18. Id. at 800 (citing Solas v. Emergency Hiring Council, 774 A.2d 820, 

825 (R.I. 2001)). 

19. See id. at 790. 

20. Id. at 791. 

21. Id. at 792. 

22. Id. 

23. Id. 

24. See id. 792-93. 

25. Id. at 792 (quoting R.I. GEN. LAWS § 42-46-8(a) (2000)).

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2001, he would possess the requisite standing. 26 

The term “aggrieved,” however, is an ambiguous term; the 

court noted that the legislature did not provide the term a 

discernable definition. 27 It would therefore be up to the court to 

assign the term an interpretation not at odds with the legislative 

purpose behind the statute. 28 By the language of the statute, the 

court determined that the OMA served to protect a public right. 29 

The court stated that the OMA was not intended to protect the 

“property or contract rights” of local citizens, but rather serves to 

guarantee the right to be properly informed of the “performance, 

deliberations, and decisions of government entities.” 30 Thus, any 

act which hinders this right will cause a citizen to be 

“aggrieved.” 31 

Importantly, the court, drawing on precedent, made it clear 

that one need not have had a “personal stake” in the agenda of a 

public meeting to acquire standing under the OMA; the court cited 

Solas v. Emergency Hiring Council, 32 in which the court 

determined that a citizen did not require a “personal stake” in the 

“substance of the meeting to assert a right to attend a meeting of a 

public body.” 33 As a consequence of the rule laid down in Solas, 

the Tanner court determined that, in addition to a right to attend 

a public meeting, one does not need a “personal stake” in the 

business of a particular meeting to assert the right to properly be 

“advised of the business to be conducted” at such a meeting. 34 

Improper notice, however, need not cause a plaintiff to miss a 

public meeting to acquire standing; the court previously 

determined that if a citizen did attend a meeting, but improper 

26. See id. 

27. Id. at 792. 

28. Id. at 792-93. 

29. Id. at 793. Reference to protection of a public right is found in the 

statutory language of the OMA, which states that: “public business [is] to be 

performed in an open and public manner” so that citizens can be “advised of 

and aware of the performance of public officials and the deliberations and 

decisions that go into the making of public policy.” R.I. GEN. LAWS § 42-46-1 

(2000). 

30. 880 A.2d 793. 

31. See id. 

32. 774 A.2d 820 (R.I. 2001). 

33. 880 A.2d 793(quoting Solas, 774 A.2d 820, 823 (R.I. 2001) (emphasis 

added)). 

34. Id.

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notice caused him to be “disadvantaged” or experience a “lack of 

preparation or inability to respond to an issue,” that citizen would 

also be “aggrieved” under the OMA. 35 Therefore, Mr. Tanner 

possessed the requisite standing to bring his action against the 

town council because, as a local citizen, he was able to allege that 

the notice left him unaware of any intention by the council to vote 

on the appointments and would leave him unprepared to respond 

to such action. 36 

2. Mootness 

The defendant town council’s second point of error was the 

issue of mootness. 37 Because the council had, on November 19, 

2001, posted notice for another meeting where “Boards and 

Commission Appointments” would be on the agenda, they claimed 

that any controversy raised by the October 23, 2001 meeting was 

moot. 38 In other words, concerned citizens would be able, at this 

second meeting, to voice opinions on the appointments to the 

zoning board, remedying any perceived inconvenience posed by 

the first meeting. 39 The court, however, found Mr. Tanner’s 

argument stronger. 40 

Mr. Tanner argued that the case could not be dismissed for 

mootness because the matter was of “extreme public importance” 

and “capable of repetition.” 41 Moreover, because the town council 

had not, throughout the litigation, made any admission that its 

October 23, 2001, behavior was at all improper, he argued that the 

council intended to “engage in similar conduct in the future.” 42 

Mr. Tanner also argued that without a judgment in his favor, 

public bodies subject to the OMA could give improper notice of 

meetings, only to comply when challenged, thereby avoiding an 

“adverse judgment.” 43 

35. Id. (citing Graziano v. R.I. State Lottery Comm’n, 810 A.2d 215, 222 

(R.I. 2002)). 

36. Id. 

37. Id. at 793-94. 

38. Id. at 789, 793-94. 

39. See id. 

40. See id. at 795. 

41. Id. at 794. 

42. Id. 

43. Id.

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5/15/2006 8:40 PM 


The court also made clear that just because one statutory 

remedy has been rendered moot, the “viability of the case or the 

remaining remedies” will not be affected. 44 The OMA provides for 

several possible remedies: injunctive relief, a civil fine of $5,000, 

attorney’s fees, or any combination of the three. 45 The November 

26, 2001 meeting effectively rendered any claim to injunctive relief 

moot. 46 However, the possibility of attorney’s fees or a civil fine, in 

the event the court found the town council to have violated the 

OMA, were still issues to be resolved and therefore justiciable. 47 

3. The Open Meetings Act Violation 

Whether the town council had in fact violated the OMA 

required judicial interpretation of a certain portion of the statute 

itself. 48 Both of the parties differed on what was required by the 

OMA mandate that notice of a public meeting necessitated a 

“statement specifying the nature of the business to be discussed.” 49 

The town council, relying on the findings of the Attorney General, 

averred that the OMA should be strictly construed to require only 

the “nature” of any business conducted at a public meeting and 

not an explicit mention of any intention to vote. 50 Thus, the notice 

posted prior to the October 23, 2001 meeting, which stated that 

“Interviews for Potential Board and Commission Appointments,” 

was the agenda, should have constituted a sufficient 

“statement.” 51 Mr. Tanner, on the other hand, argued that the 

posting was insufficient because more than the agenda item it 

mentioned – interviews – took place. 52 Therefore, the question of 

what, exactly, was required by the term “statement” became the 

central issue in determining the outcome of the case. 53 

The court noted that ambiguous statutory language, such as 

the phrase “statement specifying the nature of the business to be 

discussed,” requires that the court not simply insert its own 

44. Id. at 794-95. 

45. Id. at 794 (citing R.I. GEN. LAWS § 42-46-8(d) (2000)). 

46. See id. at 795. 

47. Id. 

48. Id. at 795-96. 

49. Id. at 795 (quoting R.I. GEN. LAWS § 42-46-6(b)). 

50. Id. 

51. Id. at 789, 795. 

52. Id. at 795. 

53. Id. at 796.

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interpretation; rather, the court must “glean the intent and 

purpose of the Legislature” 54 and devise an interpretation 

“consistent” with the Legislature’s “policies or obvious purposes.” 55 

Therefore, the Tanner court first determined the overall purpose 

of the OMA before it attached any judicial interpretation to the 

Act’s language. 56 

The “explicit purpose” the court found in the OMA was clear: 

“[P]ublic business [must] be performed in an open and public 

manner and that the citizens be advised of and aware of the 

performance of public officials and the deliberations and decisions 

that go into the making of public policy.” 57 To the court, this 

section of the OMA was intended to give the public “greater 

opportunity” to gain access to “issues of public importance,” so 

that the public can engage itself in “meaningful participation in 

the decision-making process.” 58 

With this central purpose of the OMA in mind, the court 

determined that the legislature intended to provide the courts 

with a “flexible standard” regarding what was required of the 

requisite “statement specifying the nature of the business to be 

discussed.” 59 The court consulted the jurisprudence of two sister 

states confronted with a similar problem. 60 The Supreme Courts 

of both Colorado and Tennessee resolved the issue by establishing 

a “totality of the circumstances standard.” 61 So too would the 

Tanner Court. 62 Understanding the balance between 

“safeguarding the public’s interest” and the “realities of local 

government,” the court declined to provide “‘magic words’” or 

“specific guidelines” under the OMA requirement of public 

notice. 63 Instead, the court held that to comply with the OMA, 

54. Id. (quoting Motola v. Cirello, 789 A.2d 421, 423 (R.I. 2002)). 

55. Id. (quoting Keystone Elevator Co. v. Johnson & Wales Univ., 850 

A.2d 912, 923 (R.I. 2004)). 

56. See id. 

57. Id. (quoting R.I. GEN. LAWS § 42-46-1 (2000)). 

58. Id. 

59. Id. 

60. Id. 

61. Id. at 796-97 (citing Memphis Pub. Co. v. City of Memphis, 513 

S.W.2d 511, 513 (Tenn. 1974); Benson v. McCormick, 578 P.2d 651,653 (Co. 

1978)). 

62. Id. at 797-99. 

63. Id. at 797.

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public bodies must provide “fair notice” to the public in a manner 

that would, under the “totality of the circumstances,” “fairly 

inform the public of the nature of the business to be discussed or 

acted upon.” 64 

Applying this “totality of the circumstances” standard to the 

present case, the court found that the town council had not met 

this standard. 65 The court stated that a notice which declares that 

a meeting’s agenda is to conduct “Interviews for Potential Board 

and Commission Appointments” neither “states nor implies” that 

any voting on these potential board members would occur. 66 The 

court referred to the dictionary definition of the word “interview” 

and found the term to indicate only a “formal meeting . . . in which 

facts or statements are elicited from another.” 67 Relying on the 

posted notice, a member of the public could not reasonably have 

foreseen that, after these interviews, the council would vote on the 

potential candidates. 68 Therefore, under the “totality of the 

circumstances,” it could not be held that the town council had 

sufficiently provided a “statement specifying the nature of the 

business to be discussed,” because the council proceeded to make 

decisions of importance beyond that included in the public notice. 

However, the court determined that because of the ambiguous 

statutory language, the town council’s violation could not be 

construed as “willful.” 69 

To be sure, the court stopped short of requiring that all 

decisions to vote at public meetings must be signaled in the 

requisite public notice. 70 The town council’s violation lay in the 

fact that its notice, describing interviews without mentioning an 

intention to vote, was “misleading.” 71 

4. Attorney’s Fees 

The town council’s final point of error was the issue of 

64. Id. 

65. Id. at 798. 

66. Id. 

67. Id. at 798 n.17 (quoting THE AMERICAN HERITAGE DICTIONARY 916 

(4th ed. 2000)). 

68. Id. at 798. 

69. Id. at 802. 

70. Id. 

71. See id.

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attorney’s fees. 72 The $11,193.89 awarded to the plaintiff by the 

hearing justice was, in the town council’s view, “unjust” due to 

“special circumstances.” 73 The “special circumstanc[e]” argued by 

the town council on appeal was that it should not be penalized for 

acting in accordance with the findings of the Attorney General, 

which stated that the intention to vote was not required on the 

notice. 74 However, even the Attorney General’s findings 

mentioned that the notice could not be “misleading.” 75 Under the 

“totality of the circumstances,” the court had already determined 

that the town council’s notice was in fact “misleading.” 76 

The Tanner court noted that attorney’s fees are mandatory 

when an OMA violation has occurred, but that the legislature 

granted the courts “a great deal of discretion” in determining the 

amount of these fees. 77 The purpose of the award was to “provide 

an economic incentive to challenge violations of the OMA, deter 

future violations, and penalize public bodies for noncompliance 

with the act.” 78 The court held, however, that the “great deal of 

discretion” the Legislature had provided the courts in determining 

such an award, requires that the courts consider “the myriad of 

circumstances” surrounding issues of public notice and the “tenets 

of justice and fairness.” 79 Therefore, in addition to the burden 

placed on the defendant to show “special circumstances,” the court 

must make certain that the award is “proportional to the breach 

and the effect thereof.” 80 

On the issue of attorney’s fees, the Tanner court diverged with 

the determinations of the hearing justice. Employing the “abuse 

of discretion standard,” the court concluded that the hearing 

justice had only considered the fact that the council relied on the 

opinions of the Attorney General as a “special circumstance” to 

warrant mitigation of attorney’s fees. 81 The Tanner court agreed 

72. Id. at 799. 

73. Id. 

74. Id. 

75. Id. 

76. See id. 

77. Id. at 800. 

78. Id. at 794 n.10 (citing N.A.S. Imp., Corp. v. Chenson Enter., Inc., 968 

F.2d 250, 254 (2d Cir. 1992)). 

79. Id. at 800 (citing Edwards v. State, 677 A.2d 1347, 1349 (R.I. 1996)). 

80. Id. 

81. Id. at 801.

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with the hearing justice’s findings that such reliance on the 

Attorney General’s findings would not meet the standard of 

“special circumstances,” but that the greater issue of applying the 

“inherent tenets of justice and fairness” remained. 82 According to 

the record, there was no indication that the hearing justice had 

attempted to employ such standards to ensure that the remedy 

was “proportional to the breach and effect thereof.” 83 

Rather than remanding the case with instructions for the 

hearing justice to consider the “tenets of justice and fairness,” the 

Tanner court determined, according to the full record before it, 

that the award issue could be adjudicated on appeal. 84 Adhering 

to the standard of “justice and fairness,” the court looked 

favorably upon the actions that the town council had taken when 

it later provided proper notice for the November 26, 2001, 

meeting. 85 In the court’s view, the town council should not be 

“further penalized when it [has taken] appropriate corrective 

measures.” 86 Establishing that the council’s October 23, 2001, 

actions were not willful, that the statutory language was, at the 

time, relatively unclear, and that the council acted to correct its 

initial violation, the court reduced the award of attorney’s fees to 

$1,500. 87 COMMENTARY 

In a 1996 article, Professor B. Mitchell Simpson expressed 

concern that the Rhode Island Supreme Court had “yet to rule on 

many important points” regarding the OMA – points which had 

already been decided upon by “other state supreme courts and the 

United States Supreme Court.” 88 Chief among Simpson’s concerns 

was that the lack of Rhode Island Supreme Court guidance left 

public bodies with only the advisory opinions of the Attorney 

General when attempting to understand the OMA. 89 Such a state 

of affairs was exactly the root of the controversy in Tanner. As 

82. Id. 

83. Id. 

84. Id. 

85. Id. at 802. 

86. Id. 

87. Id. 

88. B. Mitchell Simpson, III, The Open Meetings Law: Friend and Foe, 45 

R.I. B.J. 7, 8 (Oct. 1996). 

89. Id.

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5/15/2006 8:40 PM 

2006] SURVEY SECTION 911 

mentioned above, the East Greenwich town council relied on the 

findings of the Attorney General. 90 This finding supported an 

interpretation that public notice under the OMA did not require 

information about any vote that would take place at a public 

meeting, provided the notice was not misleading. 91 Without a 

Rhode Island Supreme Court decision controlling the matter, it is 

understandable that different parties would have different 

interpretations of the OMA. Fortunately, Tanner provides greater 

guidance by lending a degree of clarification on certain key 

elements of the OMA. 

On the issue of standing, the court’s interpretation of the term 

“aggrieved” was effectively a decision for the people. The court’s 

broad interpretation of the term enables a concerned citizen to 

readily challenge those who violate this public right. However, 

the court was careful to err on the side of political reality when it 

determined that the requirements of public notice shall be subject 

to a “totality of the circumstances” standard. 92 Without such 

consideration, the broad grant of standing would cause public 

bodies to be liable for even the most questionable violations. This 

end is also served by the obligation that the court imposed on the 

lower courts to consider the “tenets of justice and fairness” when 

determining the mandatory award of attorney’s fees. 93 Rather 

than simply granting the maximum amount in all cases of OMA 

violations, the court ensured that the character of the violation 

itself and any corrective measures taken by the public body would 

be weighed against the harm done to the plaintiff. 

Fortunately, Tanner provides greater guidance to the lower 

courts on several key provisions of the OMA. However, the court’s 

response created a flexible standard and therefore may leave room 

for different understandings of related issues. The court’s decision 

in Tanner was a much-needed step towards the clarification of key 

OMA provisions. 

CONCLUSION 

In all, Tanner established a broad interpretation as to who 

90. Tanner, 880 A.2d at 795. 

91. Id. at 784. 

92. Id. at 797. 

93. Id. at 801.

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has standing to bring a claim alleging an OMA violation. 

However, due to a realistic understanding of the function of public 

bodies, the court refrained from providing an exact requirement 

for what actually constitutes an OMA violation. The “totality of 

the circumstances” standard sheds greater light on how a court 

should determine whether a violation has occurred; but, 

inevitably, this standard will ensure that differences of opinion 

will arise from time to time as to whether a public body has indeed 

violated the OMA. 

Kevin Rolando

ESPOSITO 

5/15/2006 8:59 PM 

Tort Law. Esposito v. O’Hair, 886 A.2d 1197 (R.I. 2005). 

The common law collateral source rule is a well-established 

principle of Rhode Island law. Absent a statutory provision to the 

contrary, the collateral source rule prevents defendants in tort 

actions from reducing their liability by presenting evidence that 

the injured party received compensation for injuries from a source 

wholly independent of the tortfeasor. Rhode Island General Law § 

9-19-34.1, which abrogates the common law collateral source rule, 

details a list of collateral sources, including payments from any 

“state income disability” act, that are admissible in malpractice 

actions to reduce a plaintiff’s damages. Medicaid is not a “state 

income disability” act and thus is not an admissible collateral 

source payment under § 9-19-34.1. 


In March of 2001, the plaintiff, Marion Thomson, filed suit 

against Atmed Treatment Center, Inc., Hani Zaki, M.D., Inc., and 

three individual physicians: James P. O’Hair, Daniel Regan, and 

Hani Zaki. 1 Thomson alleged that the defendants were negligent 

when they failed to diagnose her with Hodgkins Lymphoma; 

subsequently, on March 15, 2003, Thomson died from Hodgkins 

Lymphoma. 2 After Thomson’s death, her complaint was amended 

to substitute Maria Esposito, executrix of Thomson’s estate, as 

plaintiff in the action. 3 Additionally, Dr. Zaki’s insurer, the 

Medical Malpractice Joint Underwriting Association of Rhode 

Island (MMJUA) was added as a defendant. 4 In September of 

2003, the parties reached a settlement agreement wherein 

$440,000.00 was paid to the decedent’s estate, while an additional 

sum of $381,689.26, the cost of decedent’s medical expenses, was 

1. Esposito v. O’Hair, 886 A.2d 1197, 1198 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. at 1198 n.1 (citing R.I. GEN. LAWS § 27-7-2 (2002) (prohibiting a 

plaintiff from bringing a direct action against an insurer while the insured 

defendant is alive; Dr. Zaki passed away after the initial complaint was 

filed)). 

913

ESPOSITO 

5/15/2006 8:59 PM 


set aside. 5 

The defendants filed a motion for judgment as a matter of 

law, contending that the plaintiff’s estate was not entitled to 

recover medical expenses because they had been paid by Rhode 

Island’s Medicaid program. 6 The defendants contended that 

under Rhode Island General Law § 9-19-34.1, plaintiff’s recovery 

of medical expenses must be reduced by collateral source 

payments made pursuant to a “state income disability” act. 7 

Plaintiff filed a cross motion, contending that Medicaid 

benefits were not a “state income disability” act under § 9-19-34.1, 

and as such, defendants were liable to the plaintiff estate for 

Thomson’s medical expenses. 8 Furthermore, the plaintiff claimed 

that even if Medicaid payments were an admissible collateral 

source under § 9-19-34.1, the statute would be preempted by 

federal law, and further, would be unconstitutional. 9 

In April of 2004, the court entered judgment in favor of the 

plaintiff. 10 The court reasoned that § 9-19-34.1 must be strictly 

construed, as it abrogates the common law collateral source rule 

in that it allows defendants to offset their liability by presenting 

evidence that a third party paid the plaintiff’s medical expenses. 11 

The court found that Medicaid was not a state income disability 

act within the meaning of § 9-19-34.1 because it does not 

compensate individuals for lost income, and disability is not a 

prerequisite to establishing eligibility for Medicaid benefits. 12 

Because the court agreed with the plaintiff that Medicaid benefits 

were not an admissible collateral source under § 9-19-34.1, it 

declined to address the two constitutional arguments that were 

raised. 13 The defendants subsequently appealed. 14 


6. Id. 

7. Id. (citing R.I. GEN LAWS § 9-19-34.1 (2000)). 

8. Id. Because there were no disputed issues of fact and the parties had 

agreed as to the amount of damages, the motion justice applied a summary 

judgment standard to the parties’ motions. Id. at 1198 n.3. 




12. Id. 

13. Id. 

14. Id.

ESPOSITO 

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BACKGROUND 

In 1976, as a result of the increasing concerns over the limited 

availability and increasing cost of medical malpractice insurance 

premiums, the Rhode Island General Assembly enacted the 

Medical Malpractice Reform Act. 15 During that same legislative 

session, the General Assembly also enacted Rhode Island General 

Law § 42-14.1-1, authorizing the creation of the MMJUA. 16 The 

MMJUA provision was enacted to “stabilize the cost of medical 

malpractice insurance by pooling expenses and losses in insurance 

coverage.” 17 The enactment of the Medical Malpractice Reform 

Act also included the creation of a collateral source statute codified 

as Rhode Island General Law § 9-19-34. 18 Prior to this legislation, 

if an injured party received compensation for injuries from a 

source wholly independent of the tortfeasor, such payment could 

not be deducted from the damages that the plaintiff would 

otherwise collect from the tortfeasor. 19 Section 9-19-34 effectively 

abrogated the common law collateral source rule by making 

collateral source benefits received by a plaintiff admissible in 

medical malpractice actions against physicians. 20 As originally 

enacted, the Rhode Island collateral source provision identified a 

list of admissible collateral sources. 21 Among the list of admissible 

collateral source benefits were payments received from “any state 

or federal income disability or workers’ compensation act.” 22 

However, by 1986, concerns over the rising cost of medical 

malpractice insurance had not subsided, and the MMJUA 

experienced an accelerated negative financial position resulting in 

a fund deficit; in response to these concerns, the legislature took 

further action, passing An Act Relating to Malpractice. 23 Similar 

to the 1976 Act, the 1986 Act also included a collateral source 

statute, Rhode Island General Law § 9-19-34.1. 24 The newly 

15. Id. (citing 1976 R.I. Pub. Laws ch. 244). 

16. Id. at 1200 (citing 1976 R.I. Pub. Laws ch.1). 

17. Id. (citing St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 

n.6 (1978)). 

18. Id. 

19. Id. 

20. Id. 

21. Id. (quoting R.I GEN. LAWS § 9-19-34 (1983)). 

22. Id. (quoting R.I GEN. LAWS § 9-19-34 (1983)). 

23. Id. (citing 1986 R.I. Pub. Laws ch. 350) 

24. Id. at 1201.

ESPOSITO 

5/15/2006 8:59 PM 


enacted collateral source statute, which extended its coverage to 

include the professional malpractice of dentists and dental 

hygienists, applied only to medical malpractice actions occurring 

after January 1, 1987. 25 The new statute was markedly similar to 

its predecessor; the only modification relevant to Esposito was 

that the General Assembly removed reference to payments made 

pursuant to “federal” income disability or workers’ compensation 

acts. 26 The relevant statutory language now reads: “[T]he 

defendant may introduce evidence of any amount payable as a 

benefit to the plaintiff as a result of the personal injury pursuant 

to any state income disability or workers compensation act. . . .” 27 


On appeal, the defendants contended that § 9-19-34.1 was a 

“remedial statute that should have been construed liberally to 

include Medicaid payments.” 28 Defendants claimed that the 

proposed construction of the collateral source statute is most 

consistent with the legislature’s goal of stabilizing the cost of 

medical malpractice insurance premiums. 29 Furthermore, 

defendants contended that Medicaid is an “income disability act” 

within the meaning of § 9-19-34.1 because a person must become 

“income disabled” to be eligible for benefits. 30 

Conversely, the plaintiff contended that the court should 

strictly construe § 9-19-34.1 because it effectively abrogates the 

common law collateral source rule. 31 In support of this position, 

the plaintiff noted that other jurisdictions have strictly construed 

collateral source statutes that limit a plaintiff’s recovery. 32 

“[Plaintiff] contend[ed] that these cases [were] consistent with this 

Court’s well established rule that statutes that abrogate the 

common law must be strictly construed.” 33 The court agreed with 

25. Id. (citing R.I GEN. LAWS § 9-19-34.1 (1986)). 

26. Id. 

27. R.I GEN. LAWS § 9-19-34.1 (1997). 

28. 886 A.2d at 1199. 

29. Id. 

30. Id. at 1204. 

31. Id. at 1202. 

32. Id. at 1202-03 (citing Jones v. Kramer, A.2d 170, 177-78 (Conn. 

2004); Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 293 (Fla. 2000); Oden v. 

Chemung County Indus. Dev. Agency, N.E.2d 142, 144 (N.Y. 1995)). 

33. Id. at 1203 (citing Gem Plumbing & Heating Co. v. Rossi, 867 A.2d

ESPOSITO 

5/15/2006 8:59 PM 


plaintiff and held that Medicaid was not an admissible collateral 

source payment under section 9-19-34.1. 34 In arriving at its 

decision, the Esposito court considered the defendant’s two 

principal contentions: (1) that § 9-19-34.1 was a remedial statute 

that should have been construed liberally to include Medicaid 

payments; 35 and (2), that Medicaid is an income disability act 

within the meaning of § 9-19-34.1. 36 

The court rejected defendant’s contention that § 9-19-34.1 was 

a remedial statute. 37 The court noted that “it is our view, 

however, that a statute is not ‘remedial’ simply because its goal is 

to improve societal woes.” 38 The court reasoned that if this were 

the case, then all statutes would be considered remedial to some 

extent. 39 The court noted that a remedial statute is “one which 

affords a remedy, or improves or facilitates remedies already 

existing for the enforcement or rights of redress of wrongs.” 40 The 

court reasoned that § 9-19-34.1 does not fit this definition because 

unlike a remedial statute, §9-19-34.1 narrows the common law 

collateral source rule by reducing a plaintiff’s recovery. 41 

Moreover, the court noted “whether we apply a strict or 

liberal reading to § 9-19-34.1, we are not persuaded that the 

legislature intended the term ‘income disability act’ to describe 

this state’s Medicaid program.” 42 The court reasoned that 

although some Medicaid recipients are disabled, Medicaid could 

not be defined as an “income disability” act because many 

Medicaid recipients are not disabled, such as those who are aged 

sixty-five or older. 43 Furthermore, the court noted that some 

individuals who are disabled might not qualify for Medicaid 

benefits if their incomes exceed a certain amount; thus “disability 

is not the lynchpin to the receipt of Medicaid.” 44 Moreover, the 

796, 803 (R.I. 2005)). 

34. Id. at 1204. 


36. Id. at 1204. 

37. Id. at 1203. 

38. Id. (citing Ayers-Shaffner v. Solomon, 461 A.2d 396, 399 (R.I. 1983)). 

39. Id. 

40. Id. (quoting Ayers-Shaffner, 461 A.2d at 399). 

41. Id. at 1203. 

42. Id. 

43. Id. at 1203-04 (citing R.I GEN LAWS § 40-8-3 (1997)). 

44. Id. at 1204.

ESPOSITO 

5/15/2006 8:59 PM 


court found that individuals receiving Medicaid benefits do not 

actually receive income under the program; the court noted that 

payments are made directly to medical care providers. 45 

Ultimately, the court found that Medicaid is not a “sate income 

disability” act under § 9-19-34.1 because “even though some 

Medicaid recipients may be disabled, these individuals do not 

receive income under the program.” 46 Finally, the court noted that 

“our holding that Medicaid is not an admissible collateral source 

payment under § 9-19-34.1 renders it unnecessary for us to 

address whether the statute is preempted by federal law or is 

otherwise unconstitutional.” 47 

COMMENTARY 

Some observers may find the Rhode Island Supreme Court’s 

decision in Esposito as unjust in that it grants a windfall to the 

plaintiff’s estate by allowing the estate to gain at the taxpayers’ 

expense. An argument can be made that such a result is 

inequitable in that a plaintiff in a medical malpractice action who 

is ineligible to receive Medicaid benefits, and instead secures 

health coverage from a private insurer, will receive less 

compensation than a Medicaid beneficiary because benefits 

received from a private insurance company will be admissible to 

offset the defendant’s liability, unlike benefits received pursuant 

to Medicaid. Even though the practical effect of the court’s 

decision may appear inequitable, it would be even more unjust to 

relieve private tortfeasors and their insurers from liability at the 

taxpayers’ expense. While it seems more just in this case that the 

plaintiff received the windfall rather than the defendants, neither 

result is equitable. Perhaps Rhode Island General Law § 9-19- 

34.1 should be amended so that all plaintiffs proceeding in a 

medical malpractice action will be entitled to the same amount of 

recovery regardless of whether the plaintiff’s medical expenses 

were paid by Medicaid or a private insurer. 

45. Id. 

46. Id. 

47. Id.

ESPOSITO 

5/15/2006 8:59 PM 


CONCLUSION 

The Rhode Island Supreme Court held that Medicaid is not a 

“state income disability” act within the meaning of § 9-19-34.1 

and, thus, Medicaid benefits were not an admissible collateral 

source to be deducted from estate’s damages. 48 

Jason Van Volkenburgh 

48. Id. at 1204.

PERROTTI 

5/15/2006 9:02 PM 

Tort Law. Perrotti v. Gonicberg, 877 A.2d 631 (R.I. 2005). A 

pregnant woman cannot recover under a theory of negligent 

infliction of emotional distress for mental anguish without 

physical symptomatology exceeding the “black cloud” that followed 

her around until the child was born. Similarly, a pregnant woman 

may not recover under an alternative theory of mental anguish 

stemming from her concern for the health of her unborn child, 

which was wholly unsupported by medical diagnostics and absent 

any physical suffering associated with the pregnancy. 


Jamie and Paul Perrotti were in an automobile accident 

involving the defendant, Paul Gonicberg, which took place on 

December 25, 1998. 1 At the time of the accident, Mrs. Perrotti, a 

passenger in the vehicle, was approximately six-months 

pregnant. 2 Other occupants included the driver, Mr. Perrotti, and 

a backseat passenger, the couple’s two-year-old daughter, Ashley. 3 

Mrs. Perrotti sustained injuries to both her head and knee, 

resulting from contact with the windshield and dashboard 

respectively. 4 She received medical attention immediately 

following the accident. 5 Emergency personnel performed an 

ultrasound and subsequently informed Mrs. Perrotti that 

everything was fine with the baby. 6 In addition to her physical 

injuries, Mrs. Perrotti testified that she suffered emotional 

injuries including being shaken up, nervous, and scared due to 

concern regarding the well-being of her baby. 7 Mrs. Perrotti 

testified that a “black cloud” loomed over her for the eighty-eight 

days from the day of the accident through the day that she 

1. Perrotti v. Gonicberg, 877 A.2d 631, 633 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. 

5. Id. 

6. Id. 

7. Id. at 634. 

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PERROTTI 

5/15/2006 9:02 PM 


delivered her baby, who was indeed healthy at delivery. 8 Mrs. 

Perrotti received no additional medical consultation or treatment 

for any of the psychological symptoms contained in her testimony. 9 

Mrs. Perrotti filed a negligence action against Mr. Paul 

Gonicberg seeking damages for physical and psychological 

injuries. 10 Prior to trial, Gonicberg filed a motion in limine 

seeking to prevent introduction of Mrs. Perrotti’s testimony 

regarding her psychological injuries, based on the lack of medical 

evidence to support that claim. 11 Gonicberg also sought to 

preclude Mrs. Perrotti from introducing any evidence of physical 

injury to passenger Ashley and any loss in wages resulting 

therefrom. 12 Mrs. Perrotti stipulated to the exclusion of evidence 

regarding lost wages, but contested the remaining two items. 13 

The trial justice granted Gonicberg’s motion concerning Ashley’s 

injuries, but denied the motion regarding the psychological injury 

testimony, in order to “see what plaintiff presents.” 14 

At trial, the parties stipulated to the issue of Gonicberg’s 

liability, leaving damages as the only consideration for the jury. 15 

Prior to submitting the case to the jury, the trial justice 

involuntarily dismissed Mrs. Perrotti’s claim for emotional injury 

resulting from the concern about the health of her unborn child. 16 

The jury subsequently awarded plaintiffs $750. 17 Mrs. Perrotti 

filed a motion for a new trial, which was denied. 18 It was from this 

8. Id. 

9. Id. 

10. Id. at 633. 


12. Id. 

13. Id. 

14. Id. 

15. Id. at 633. 

16. Id. at 635. The trial justice relied on Rule 50(a)(3) of the Rhode Island 

Superior Court Rules of Civil Procedure for the authority to grant judgment 

as a matter of law for defendants. Id. The rule states: 

When a motion for judgment as a matter of law is made at the close 

of the evidence offered by an opponent, the court in lieu of granting 

the motion may order the claim involuntarily dismissed on such 

terms and conditions as are just, and the dismissal shall be without 

prejudice. In the absence of a motion, the court may take such action 

on its own initiative. 

R.I. SUP. R. CIV. P. 50(a)(3). 

17. 878 A.2d. at 633. 

18. Id.

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denial that the plaintiff appealed to the Rhode Island Supreme 

Court. 19 


The plaintiff’s appeal challenged the trial court’s rulings, 

which had prevented the jury from considering the psychological 

injury claim and also from hearing evidence as to Ashley’s 

injuries. 20 Mrs. Perrotti cited the case of Arlan v. Cervini 21 in 

support of her claim that physical symptomatology is not required 

when the plaintiff suffers from mental anguish caused by physical 

bodily injury. 22 Additionally, the plaintiff relied on Gagnon v. 

Rhode Island Co. 23 to illustrate the court’s willingness to allow a 

pregnant woman to recover damages for the mental anguish 

resulting from her apprehension of potential birth deformities 

after being physically injured. 24 

Damages for Mental Suffering 

The Rhode Island Supreme Court identified two potential 

theories under which the plaintiff was entitled to recover: 1) the 

theory of negligent infliction of emotional distress, as was utilized 

by the trial court; 25 2) the theory that a pregnant woman “is 

entitled to damages for mental suffering despite the absence of 

physical symptoms.” 26 

The court set forth the two elements necessary to prevail 

under a theory of negligent infliction of emotional distress: first, 

the plaintiff must be physically endangered by the defendant’s 

negligent acts as a result of her presence in the zone of danger; 27 

second, the plaintiff’s emotional injury must be accompanied by 

physical symptomatology. 28 

19. Id. 

20. Id. at 635. 

21. 478 A.2d 976 (R.I. 1984). 

22. 877 A.2d at 635. 

23. 101 A. 104 (R.I. 1917). 

24. 877 A.2d at 635-36. 

25. Id. at 636. 

26. Id. at 638. 

27. Id. at 636 (citing Jalowy v. Friendly Home, Inc., 818 A.2d 698, 710 

(R.I. 2003) (citing Marchetti v. Parsons, 638 A.2d 1047, 1049, 1051 (R.I. 

1994))). 

28. Id. at 637. (citing Marchetti, 638 A.2d at 1052).

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As to the element of physical symptomatology, the court 

recognized the “very fine line” which courts walk when 

determining this threshold, noting that in the past the court had 

adopted a “relaxed standard” 29 as in Grieco v. Napolitano. 30 

However, the court distinguished that case on two grounds. First, 

the court emphasized that the plaintiff in Grieco suffered from 

physician-diagnosed post-traumatic stress disorder. 31 In contrast, 

the court noted that Mrs. Perrotti lacked any medical support for 

her assertions of emotional injury. 32 Second, and more 

importantly, the court pointed to the causal relationship between 

the defendant’s negligent actions in Grieco and that plaintiff’s 

symptoms. 33 Conversely, the court noted the complete lack of 

connection between Mrs. Perrotti’s physical injuries as caused by 

the defendant (her scraped chin and knee) and her claimed 

emotional injury (the looming “black cloud”). 34 In addition, 

regardless of the causal connection between the negligent acts and 

the mental anguish, the court found the “black cloud” which 

plagued Mrs. Perrotti was not included in the symptomatology 

required to establish a prima facie case under a theory of 

negligent infliction of emotional distress. 35 Consequently, the 

court upheld the trial court’s decision to grant judgment as a 

matter of law for defendants under a theory of negligent infliction 

of emotional distress. 36 

The court then addressed the plaintiff’s second legal theory, 

that a pregnant woman is entitled to such damages even absent 

physical symptoms. 37 The plaintiff relied on Arlan v. Cervini 38 and 

Gagnon v. Rhode Island. 39 The court briefly distinguished both 

cases. In Arlan, a plaintiff was able to recover damages for 

29. Id. at 637-38. 

30. 813 A.2d 994 (R.I. 2003). Grieco relied on cases that found symptoms 

such as severe nightmares, headaches, suicidal thoughts, sleep disorders, 

reduced libido, and fatigue to be sufficient physical manifestations of 

emotional injuries. See id. 

31. 877 A.2d at 638 (citing Grieco, 813 A.2d at 996-98). 

32. Id. 

33. Id. 

34. Id. 

35. Id. 

36. Id. 

37. Id. 

38. 478 A.2d 976 (R.I. 1984). 

39. 101 A. 104 (R.I. 1917).

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mental anguish for her symptoms including nervousness, grief, 

anxiety, and worry. 40 However, the court easily distinguished 

Mrs. Perrotti’s suffering from that of the plaintiff in Arlan, whose 

mental anguish sprung directly from extensive facial scarring, 

caused by the accident in that case. 41 The court pointed to Mrs. 

Perrotti’s comparatively minor injuries and the lack of any “direct 

relationship between the physical injuries suffered as a result of 

the accident and the mental suffering claimed.” 42 

The plaintiff in Gagnon was more analogous to Mrs. Perrotti, 

but was equally distinguishable. In that case, the plaintiff, a 

pregnant woman, was struck by a street car and immediately felt 

pain in her back and side and felt the baby pushing toward one 

side. 43 That plaintiff was awarded mental damages for the 

apprehension and anxiety she suffered connected with her concern 

for her unborn baby’s health. 44 In that case, the woman’s right to 

damages arose because she was “deprived of the right and the 

satisfaction of bearing a sound child.” 45 Mrs. Perrotti contended 

that Gagnon stood for the proposition that recovery for 

“apprehension that [a woman] would give birth to a deformed 

child” was allowable. 46 

Mrs. Perrotti cited additional cases from other jurisdictions 

supporting her claim. 47 The court found two important 

distinctions between Gagnon, the accompanying cases, and the 

case of Mrs. Perrotti. 48 First, all of the cases cited were in a time 

period before reliable antenatal diagnosis. 49 Second, the injuries 

suffered by the plaintiffs in those cases were either directly to the 

abdomen or consisted of symptoms related to the pregnancy 

itself. 50 The court stated that it was not willing to “close off the 

40. Perrotti, 877 A.2d at 638 (citing Arlan, 478 A.2d at 978). 

41. Id. at 638-39 (citing Arlan, 478 A.2d at 978). 

42. Id. at 639. 

43. Gagnon v. R.I. Co., 101 A. 104, 105 (R.I. 1917). 

44. Id. 

45. Id. 

46. Perrotti, 877 A.2d at 640. 

47. Id. (citing Prescott v. Robinson, 69 A. 522 (N.H. 1908); Fehely v. 

Senders, 135 P.2d 233 (Or. 1943); Rosen v. Yellow Cab Co., 56 A.2d 398 (Pa. 

1948)). 

48. Id. 

49. Id. 

50. Id.

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avenue of recovery . . . for pregnant women who suffer mental 

anguish as a result of a defendant’s wrongful conduct;” 51 however, 

it contended that it was necessary to “reposition” the Gagnon 

holding in a “twenty-first century context.” 52 

The court listed the factors distinguishing those cases from 

Mrs. Perrotti’s: she sustained no injury to her abdomen; she did 

not suffer from any pregnancy-related symptoms; she was 

explicitly informed by medical personnel that the baby was fine; 

she obtained an ultrasound which confirmed the health of the 

baby; and, she did not seek any medical or psychological 

treatment for her emotional symptoms. 53 In none of the cases by 

Mrs. Perrotti were the plaintiffs assured of the health of the 

baby. 54 Finding this list of facts detrimental to Mrs. Perrotti’s 

case, the court held that “[Mrs. Perrotti] may not recover for 

mental anguish for a potential injury to her unborn child that is 

wholly unsupported by any physical suffering during and after the 

incident in question and that explicitly has been ruled out by 

routine medical diagnostics.” 55 

Evidence of the Minor Child’s Injuries 

Mrs. Perrotti also contended that Ashley’s injuries were 

relevant evidence as to her own apprehension and as to her 

credibility as a plaintiff. 56 The defendant pointed to the separate 

claim filed on behalf of Ashley, and argued that any claim of loss 

of consortium was relevant only to that separate claim. 57 The 

court upheld the trial court’s decision to prohibit the evidence of 

Ashley’s injuries without any significant discussion, finding no 

indication of abuse of discretion on the part of the trial justice. 58 

51. Id. at 641. 

52. Id. 

53. Id. at 640-41. 

54. Id. at 640. 

55. Id. at 641. 

56. Id. 

57. Id. at 641-42. 

58. Id. at 642.

PERROTTI 

5/15/2006 9:02 PM 


COMMENTARY 

The court in this case emphatically limited its decision to the 

facts at hand. 59 While the advent of antenatal diagnosis ensures 

that in most cases the mother can be assured of her child’s safety, 

the court did not take away the possibility that a pregnant woman 

in such circumstances as Mrs. Perrottti might be able to recover 

damages for mental anguish. 60 Therefore, it is important to 

question which factors were essential to the court’s holding. The 

court’s analysis seems relatively effortless given this set of facts. 

However, the opinion’s implications for future cases remains 

unclear considering the court’s lack of guidance concerning which 

factors were essential to the holding. Based on the court’s 

analysis, it appears that injury directly to the abdomen would 

significantly advance a claim. But it remains unclear whether 

such injury would be sufficient if the mother was assured by 

medial personnel after an ultrasound or other similar testing that 

the baby was fine. Similarly, the court places some emphasis on 

the plaintiff’s lack of treatment for her psychological symptoms, 

but does not give any guidance as to whether such psychological 

treatment would suffice to overcome a lack of physical 

sympomatology or injury to the abdomen. 

The court also left open the question of whether the 

apprehension and anguish associated with the potential injury to 

an unborn child are to be analyzed using an objective or subjective 

standard. The court makes only a passing reference to the 

emotions suffered by Mrs. Perrotti as they compared to the 

average mother’s emotional symptoms during pregnancy. There is 

no guidance concerning whether an overly sensitive or 

apprehensive mother would be able to recover if additional factors 

were satisfied such as physical injury to the abdomen. This 

uncertainty has subtle implications for future cases. Plaintiffs 

could bring forward claims, unsure of which factors must be 

emphasized above others, and unsure of the proper standard to 

apply to each circumstance. However, this is similar to many 

situations in which the court applies a “totality of the 

circumstances” type standard. The court has chosen to make the 

59. See id. at 640-42. 

60. Id. at 641.

PERROTTI 

5/15/2006 9:02 PM 


determination on a case-by-case basis as to which factors will be 

sufficient for recovery. Future litigants will have to analogize and 

distinguish the various facts of their own claim against the many 

considerations of the court in this case and those relied on by the 

parties. 

CONCLUSION 

The Rhode Island Supreme Court held that a plaintiff could 

not recover for mental damages associated with her concern for 

her unborn child’s health absent physical injury directly affecting 

the abdomen or symptoms directly related to such pregnancy. In 

this case, the plaintiff, a pregnant woman injured by defendant’s 

negligence, received no psychological treatment and her concerns 

were wholly unsupported by medical tests and personnel. 

Consequently, she could not recover for her claimed psychological 

injury. 

Christine List

SEIDE 

5/15/2006 9:05 PM 

Tort Law. Seide v. State, 875 A.2d 1052 (R.I. 2005). The 

public duty doctrine, which restricts tort liability for certain 

governmental functions, is a judicially crafted exemption to the 

sovereign immunity waiver of the Rhode Island Tort Claims Act. 

However, the Rhode Island legislature has clearly and 

unambiguously required emergency vehicles to operate “with due 

regard for the safety of all persons,” and expressly waived 

protection for “the consequences of the driver’s reckless disregard 

for the safety of others,” making the public duty doctrine 

inapplicable to this case. The Rhode Island Supreme Court held 

that the questions of whether the driver’s conduct was reckless, 

and whether such conduct was the proximate cause of the 

plaintiff’s injury, are generally questions for the jury. 


Early on the morning of April 5, 1994, the plaintiff, Mary 

Seide, enroute home after spending Easter weekend with her 

family, took a break to sleep in the passenger seat of her car; she 

stopped about 100 to 150 feet behind a state police roadblock in 

the northbound lane of interstate 95. 1 She was jolted awake when 

a stolen flatbed tow truck, traveling the wrong direction down the 

interstate, swerved around the roadblock and slammed into her 

car, seriously injuring her so that she had to be taken to the 

hospital by ambulance. 2 

The truck had been stolen in East Providence around 

midnight, prompting an alert to the East Providence Police 

Department. 3 Soon thereafter, a detective saw a truck matching 

the description traveling west on interstate 195 and followed it, 

without activating his lights or siren, to confirm it was the stolen 

truck. 4 As the detective followed the truck, it “traveled ‘[r]ight 

within the speed limit’ and was not driven in an unusual 

1. Seide v. State, 875 A.2d 1259, 1262, 1265 (R.I. 2005). 

2. Id. at 1265. 

3. Id. at 1262. 

4. Id. at 1262, 1264. 

929

SEIDE 

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manner.” 5 After confirmation that the truck was stolen and the 

arrival of two other police cruisers, the three officers activated 

their lights and sirens and attempted to stop the truck, but the 

driver swerved toward the cruisers and refused to stop. 6 

For the next thirty minutes, the officers pursued the truck as 

it tried to evade them by exiting and re-entering the interstates 

and speeding through downtown Providence, not stopping for red 

lights or stop signs. 7 The truck was traveling between sixty and 

seventy miles an hour, swerving at the pursuing police cruisers, 

driving over sidewalks, and running down “a small tree or sign” 

along the side of the road. 8 The truck re-entered interstate 95, 

heading south in the northbound lane at speeds over ninety miles 

an hour, with at least three police cruisers in pursuit. 9 Even 

though traffic was “light to non-existent,” back at police 

headquarters the supervising officer, Lieutenant Barlow, realized 

that the situation had become unsafe and ordered his officers to 

end their pursuit. 10 One officer left the highway, but two officers, 

while slowing and discontinuing efforts to stop the truck, stayed 

on the highway with emergency lights energized. 11 The truck 

continued south in the northbound lane of the interstate, where it 

encountered the roadblock, swerved around, and slammed into the 

plaintiff’s car. 12 

On March 27, 1997, Seide filed suit in Superior Court, seeking 

damages for injuries she alleged were sustained when the stolen 

truck slammed into her car. 13 The Superior Court granted 

judgment as a matter of law to the remaining defendants, 14 

5. Id. at 1264. 

6. Id. 

7. Id. at 1262-64. 

8. Id. at 1264. 

9. Id. 

10. Id. at 1264-65. 


12. Id. The driver of the truck later entered a plea of nolo contendere to 

five counts, for which he received one year in prison, with the remainder of 

the sentences suspended and with subsequent probation. Id. at 1263 n.1. 

13. Id. at 1263-64. 

14. Id. at 1265. The suit named the defendants as: “the State of Rhode 

Island; the Rhode Island State Police and state police officers Captain Gary 

Treml and Corporal Ernest Quarry; the City of East Providence and its 

treasurer; and East Providence police officers Detective Diogo Mello and 

Patrolman Robert Warzycha.” Id. at 1263. While “the City of Providence and 

its treasurer, the City of Pawtucket and its treasurer, and Jerry’s Chevron”

SEIDE 

5/15/2006 9:05 PM 


concluding that they were “immune from suit under the Public 

Duty Doctrine,” and that the plaintiff had failed to produce any 

evidence that the police conduct was the proximate cause of the 

accident. 15 The plaintiff subsequently appealed. 16 


On appeal, the plaintiff asserted that: (1) the defendants were 

not shielded by the public duty doctrine because their conduct 

during the high-speed chase was reckless; and (2) judgment as a 

matter of law was improperly granted on the issue of proximate 

cause. 17 The Rhode Island Supreme Court considered this the 

“first occasion” to consider whether the legislature statutorily 

waived immunity under the public duty doctrine, and determined 

that “[t]he Public Duty Doctrine will not shield . . . defendants 

from liability for injuries proximately arising from their reckless 

conduct or in circumstances in which no real emergency exists.” 18 

Therefore, the public duty doctrine was not a per se bar to the 

plaintiff’s suit and judgment as a matter of law was improperly 

granted. 19 Because the defendants had no sovereign immunity, it 

was for a jury to decide whether the officers’ conduct was reckless 

and whether a real emergency existed. 20 The issue of proximate 

cause was also inappropriate for judgment as a matter of law 

because the facts and reasonable inferences, when viewed in the 

light most favorable to the plaintiff, could have reasonably led the 

jury to conclude that the police should have terminated the 

pursuit before the plaintiff was injured, and that continuing the 

pursuit “was in reckless disregard for the safety of others.” 21 The 

court vacated the judgment and remanded the case for a new 

trial. 22 

(the owner of the truck) were also named in the original suit, they were not 

parties to the appeal. Id. at 1264 n.2. 

15. Id. at 1265. 

16. Id. 

17. Id. 

18. Id. at 1267, 1269. 

19. Id. at 1268. 

20. See id. at 1269-71. 

21. Id. at 1269. 

22. Id. at 1272.

SEIDE 

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Public Duty Doctrine 

Under the doctrine of sovereign immunity, governmental 

entities are immune from private suits unless such immunity is 

waived; 23 the Rhode Island legislature has waived sovereign 

immunity statutorily through the Rhode Island Tort Claims Act 

(RITCA). 24 The court stated that RITCA purports to provide a 

broad waiver of immunity and make all governmental entities 

“liable in all actions of tort in the same manner as a private 

individual or corporation,” 25 but the presumption is that the “‘the 

Legislature did not intend to deprive the state of any sovereign 

power ‘unless the intent to do so is clearly expressed or arises by 

necessary implication from the statutory language.’” 26 Therefore, 

the court created the public duty doctrine to “restrict tort liability 

for the state and its municipalities for governmental functions, 

albeit with certain exceptions.” 27 

One of the exceptions to the public duty doctrine arises in the 

operation of emergency vehicles; the court discussed how one 

statute affords certain privileges to the drivers in the performance 

of their duties, but another statute limits the protection. 28 Prior to 

the creation of the public duty doctrine, the court had concluded 

that, if the driver of an emergency vehicle exhibited a “reckless 

disregard for the safety of others,” the privileges extended to him 

by law would be withheld. 29 After the creation of the public duty 

doctrine, the court decided it must re-examine “whether § 31-12-9 

continue[d] to constitute a legislative waiver of immunity under 

23. See id. at 1266-68. 

24. See R.I. GEN. LAWS § 9-31-1 (1997 & Supp. 2005). 

25. 875 A.2d 1267 n.9 (quoting R.I. GEN LAWS § 9-31-1 (1997 & Supp. 

2005)). 

26. Id. at 1268 (quoting Torres v. Damicis, 853 A.2d 1233, 1237 (R.I. 

2004) (internal citation and brackets omitted)). 

27. Id. at 1267 (citing Calhoun v. City of Providence, 390 A.2d 350 (R.I. 

1978)). 

28. Id. at 1266-68 (discussing R.I. GEN. LAWS § 31-12-9 (2002) and § 31- 

12-6(a) (2002)). In Rhode Island, drivers of emergency vehicles are privileged 

to disregard many traffic laws in the performance of their duties. See R.I. 

GEN. LAWS § 31-12-7 (2002). But drivers must also exercise “due care for the 

safety of all persons,” and are not protected “from the consequences of [their] 

reckless disregard for the safety of others.” R.I. GEN. LAWS § 31-12-9 (2002). 

29. 875 A.2d at 1267 (citing Roberts v. Kettelle, 356 A.2d 207, 213-14 

(R.I. 1976)).

SEIDE 

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the Public Duty Doctrine.” 30 

The court stated that as a matter of statutory construction, if 

the intent of the legislature is “clear and unambiguous,” 31 even 

when the language is “closely parsed and strictly construed,” 32 

such intent supersedes any judicially crafted limitations. 33 The 

court goes on to say that the statutory language of § 31-12-9 is 

“clear and unambiguous,” explicitly indicating the legislature’s 

intent. 34 Therefore, the court determined that the legislature 

expressly waived sovereign immunity when the conduct of 

emergency vehicle drivers is in “reckless disregard for the safety of 

others,” and the judicially crafted public duty doctrine provides no 

shield. 35 

Proximate Cause 

The plaintiff in Seide alleged that the defendants acted “in 

reckless disregard for the safety of others;” in order to survive a 

motion for judgment as a matter of law, the trial judge had to find 

that “sufficient evidence upon which reasonable persons could 

conclude that the officer was not confronted with a true emergency 

or that he or she conducted the pursuit in reckless disregard for 

the safety of others and, but for this reckless conduct, injury to 

plaintiff would not have occurred.” 36 The court then determined 

that the “existence and the extent of a duty of care are questions 

of law . . . [but] whether such duty has been breached and whether 

proximate cause [exists] are the questions for the factfinder.” 37 

The court looked to the record and determined that the 

plaintiff had “produced evidence that reasonably could [have] lead 

to the conclusion that the officers’ decision to continue the pursuit 

and their failure to terminate the chase earlier, when they 

realized the danger it posed to themselves as well as innocent 

30. Id. 

31. Id. 

32. See id. at 1268 (quoting Torres v. Damicis, 853 A.2d 1233, 1237 (R.I. 

2004)). 

33. See id. at 1267-68. 

34. See id. at 1268 (citing R.I. GEN. LAWS § 31-12-9 (2002)). 

35. See id. 

36. Id. 

37. Id. (quoting Rodrigues v. Miriam Hosp., 623 A.2d 456, 461 (R.I. 

1993)).

SEIDE 

5/15/2006 9:05 PM 


citizens, was in reckless disregard for the safety of others.” 38 The 

court further determined that the evidence “reasonably could lead 

to the inference that [the truck driver] drove onto Route 95 

because the police continued to chase him and that they should 

have terminated the pursuit at a point before the plaintiff was 

injured.” 39 Because sufficient evidence was presented, the court 

held that “[t]he issue of proximate cause was a determination for 

the jury,” and that judgment as a matter of law was improperly 

granted. 40 

The court then addressed the defendants’ claim on appeal 

that the driver’s actions were an independent intervening cause 

which warranted judgment as a matter of law. 41 The court stated 

that “[i]ntervening cause exists when an independent and 

unforeseeable intervening or secondary act of negligence occurs, 

after the alleged tortfeasor’s negligence, and that secondary act 

becomes the sole proximate cause of the plaintiff’s injuries.” 42 

However, if the intervening cause was reasonably foreseeable, 

then “the causal chain remains unbroken.” 43 The court discussed 

that if the evidence would allow a reasonable jury to conclude that 

the intervening cause was reasonably foreseeable, then 

foreseeability is a question for the jury, not the trial judge. 44 Here, 

it was for the jury to decide whether the stolen truck would have 

continued to travel the wrong direction on the interstate if the 

police had not continued to follow. 45 

Duty of Care 

The defendants claimed expert testimony was required so 

that the jury could understand the “proper manner of conducting a 

high-speed pursuit, and in particular when to break off . . . the 

pursuit.” 46 Expert testimony is required for matters not obvious to 

38. Id. at 1269. 

39. Id. 

40. Id. at 1271. 

41. Id. at 1270-71. 

42. Id. at 1270 (quoting Contois v. Town of W. Warwick, 865 A.2d 1019, 

1027 (R.I. 2004)) (emphasis added). 

43. Id. (quoting Almeida v. Town of N. Providence, 468 A.2d 915, 917 

(R.I. 1983)). 

44. See id. at 1270-71. 

45. See id. 

46. Id. at 1271.

SEIDE 

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a lay person or beyond common knowledge. 47 However, the court 

did not require expert testimony because “ordinary, intelligent lay 

juror[s]” understand traffic laws, and the jury could “draw upon 

its collective experience” to decide if the officers’ conduct was in 

reckless disregard for the safety of others. 48 

Police Pursuit Policy 

The court discussed how the East Providence Police 

Department, in accordance with state law, 49 established a 

department-wide pursuit policy that stated that chases “should 

never be carried to the extent as to appreciably endanger the lives 

and property of either innocent users of the highway, the violator, 

or the officer . . . .” 50 The court determined that this policy 

established the standard of care owed by the officers, and that 

“violation of th[is] polic[y] could serve as evidence of the 

defendants’ reckless disregard for the safety of others.” 51 

COMMENTARY 

This case illustrates the tragic results of what can go wrong in 

a high-speed police chase – an innocent bystander was severely 

injured. 52 But, it is also illustrates the conflicts between various 

public policies and the issues of institutional competence and 

judicial restraint. 

Public Policy 

On one hand is a very sympathetic plaintiff – an innocent 

bystander who happened to be in the wrong place at the wrong 

time and had her life changed forever. Is it fair to deny her 

recovery when there was absolutely no fault on her part Yet, on 

the other hand, there are the brave and loyal police officers that 

sacrifice for our community. They risk their lives to protect us 

from predation by those who refuse to live by society’s rules and 

47. See id. 

48. Id. 

49. See R.I. GEN. LAWS § 31-12-6(b) (2002). 

50. 875 A.2d at 1272. 

51. Id. 

52. Id. at 1265.

SEIDE 

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that ask only that we are as loyal to them as they are to us. Is it 

fair to hold them individually accountable for the acts of the 

criminals from whom they are trying to protect us in the first 

place 

It seems unlikely that someone who steals trucks would have 

the means to make reparations to the injured plaintiff, so the 

plaintiff looked to the city. But, in this instance, the city has 

carefully crafted a police pursuit policy that shifts the onus to the 

officer to make the decision whether a police chase will 

“appreciably endanger the lives and property of either innocent 

users of the highway, the violator, or the officer,” and directs that 

pursuits shall “never be carried to [such an] extent.” 53 The only 

way to ensure the plaintiff receives reparations is to find that the 

individual officers failed in their duty to the public. But, finding 

for the plaintiff has its attendant consequences – a sense of 

disloyalty to those who protect and serve the public, the personal 

impact on the lives and careers of the officers involved, and the 

broader future implications of the decision. This opinion may 

make police more reluctant to pursue fleeing criminals, who will 

quickly learn that the more dangerous they are in the course of 

flight, the more likely the police will terminate the pursuit, and 

the more likely the criminal will evade capture. These are the 

types of questions that the Seide jury will face on remand. 

Perhaps the trial judge, recognizing that this was a no-win 

decision for the jury, took the issue from them and decided that, as 

a matter of law, the defendants were not liable. 54 This segues to 

the next issue: who should decide what the public policy should 

be 

Institutional Competence / Judicial Restraint 

Courts and legislatures have long operated in tension when it 

comes to deciding public policy. Legislatures speak with the 

collective voice of the people, but react slowly, and often only in 

response to past events where the outcome was unpopular, 

53. Id. at 1272. Is there any high-speed chase which would not involve 

danger to the officer and/or the suspect involved If not, there is no truly 

meaningful choice on the part of the officer, and the policy merely shifts the 

risk from the organization, which is better situated to bear that risk, to the 

individual officer. 

54. Id. at 1265.

SEIDE 

5/15/2006 9:05 PM 


providing prospective relief for future occurrences, but no remedy 

for the individual circumstances that initiated the controversy. 

Courts can shape policy by their response to the individual 

circumstances of the case or controversy before them, and, by stare 

decisis, shape the response to similar future circumstances. Yet 

when judges intervene, particularly on politically divisive topics, 

there may be backlash allegations of judicial activism and 

legislating from the bench. 

This is the challenge faced by the courts in this case. The 

Rhode Island Supreme Court had already crafted the public duty 

doctrine, 55 which was used by the trial judge to shield the officers 

from liability. 56 Or the doctrine of independent intervening cause 

could have vitiated the proximate cause requisite to liability. 57 

However, the Rhode Island Supreme Court precluded the trial 

judge from invoking the protection of these doctrines on remand. 58 

While the court could have shaped public policy directly by 

upholding either basis for the judgment as a matter of law, its 

decision to remand the case is a much more subtle strategic 

maneuver. 

While government officials may empathize with the plight of 

the plaintiff, their duty is to preserve scarce public resources for 

the good of the many, even at the cost of a few individuals. As 

long as the public duty and independent intervening cause 

doctrines acted as potential shields to all liability for the 

defendants, meaningful settlement negotiation was unlikely. But, 

by remanding the case without the protection of the doctrines, the 

city has been given the incentive to settle the case, because 

minimizing liability is in the taxpayers’ best interest. This allows 

the city to make reparations to the deserving plaintiff without 

necessarily finding that the individual officers were at fault. 59 

55. Id. at 1267 (citing Calhoun v. City of Providence, 390 A.2d 350 (R.I. 

1978)). The public duty doctrine itself may have run counter to the public 

policy of a broad waiver of sovereign immunity granted by the legislature in 

the Rhode Island Tort Claims Act. See R.I. GEN. LAWS § 9-31-1 (1997 & Supp. 

2005). 

56. 875 A.2d at 1265. 

57. See id. at 1270-71. 

58. See id. at 1268, 1270-72. 

59. This is not to say that officers should have blanket immunity to act 

recklessly, merely that internal police procedures, rather than the courts, can 

determine whether further action is required regarding the officers’ actions,

SEIDE 

5/15/2006 9:05 PM 


If the issue is forced to trial, the jury will be faced with the 

unenviable choices outlined above. However, no matter which 

way the jury decides, the resulting public furor 60 may move the 

legislature to clarify policy, thereby still achieving the strategic 

goal of shaping public policy. 

CONCLUSION 

The Rhode Island Supreme Court determined that “[t]he 

Public Duty Doctrine will not shield . . . defendants from liability 

for injuries proximately arising from their reckless conduct or in 

independent of any pressure to compensate the injured plaintiff. 

One lingering concern involves the court’s notion that a post facto analysis of 

the suspect’s purported crime should be weighed as a factor in determining 

whether the pursuit was justified. See id. at 1269 (inferring that there may 

have been no “real emergency” because stealing the truck was merely a 

property crime, and that it was not until officers tried to stop the truck that 

the dangerous pursuit began). This minimizes the fact that a mere traffic 

violation may in reality be the reason that a violent felon is stopped by 

police. See e.g., Pam Belluck, Fugitive in Gay Bar Attacks Dies After Shootout 

With Arkansas Police, N.Y. TIMES, Feb. 6, 2006, at A14. In a recent incident, 

a fugitive suspect in the hatchet attack and shooting of several patrons of a 

New Bedford, MA, bar shot and killed an Arkansas police officer during a 

routine traffic stop. A twenty-mile police pursuit ensued, with the chase 

ending only after police deployed spike strips to puncture the suspect’s tires, 

causing a crash. During a subsequent shootout with police, the suspect shot 

and killed the passenger in his car before turning the gun on himself and 

committing suicide. Id.; see also Rampage Suspect’s Death Called Suicide, 

L.A. TIMES, Feb. 8, 2006, at A12. 

The presumption should be that a fleeing suspect is a danger to society and 

that the liability of the officer should not hang on a subsequent evaluation of 

whether the suspect committed a crime serious enough to warrant pursuit. 

Additionally, pursuit should rarely be terminated in response to a suspect’s 

dangerous action; otherwise the policy teaches suspects to flee through 

criminal Darwinism – those who stop are arrested; those who flee escape and 

will flee again next time. While innocent bystanders injured in a police 

pursuit should not have to bear the burden of their own damages, the 

majority of pursuing police officers are no more at fault than the victims. The 

blame needs to lie where it belongs – on the criminals who choose to run from 

the police. That is why settlement without simultaneously judging officer 

culpability achieves the best possible outcome for both the injured plaintiff 

and the individual officers. 

60. If the jury were to find for the plaintiff, the possible resulting rise in 

aborted police pursuits would likely lead to more incidents of criminals 

initiating pursuits in the first instance, creating public outcry that the police 

need to be tougher on crime. If the jury were to find for the defendants, the 

innocent and sympathetic plaintiff may suffer, which could be discordant 

with the public’s sense of equity.

SEIDE 

5/15/2006 9:05 PM 


circumstances in which no real emergency exists;” 61 as such, the 

public duty doctrine was not a per se bar to the plaintiff’s suit and 

judgment as a matter of law was improperly granted. 62 The issue 

of proximate cause was also inappropriate for judgment as a 

matter of law because the facts and reasonable inferences, when 

viewed in the light most favorable to the plaintiff, could have 

reasonably led the jury to conclude that the police should have 

terminated the pursuit before the plaintiff was injured, and that 

continuing the pursuit “was in reckless disregard for the safety of 

others.” 63 The Rhode Island Supreme Court vacated the judgment 

of the lower court and remanded the case for a new trial. 64 

Brian K. Koshulsky 

61. 875 A.2d. at 1267, 1269. 

62. Id. at 1268. 

63. Id. at 1269. 

64. Id. at 1272.

TEDESCO 

5/15/2006 9:07 PM 

Tort Law. Tedesco v. Connors, 871 A.2d 920 (R.I. 2005). The 

applicability of the egregious conduct exception to the public duty 

doctrine, which allows a plaintiff to “pierce the protective shell” 

afforded by the public duty doctrine, is a mixed question of law 

and fact. While the existence of a legal duty is purely a question of 

law to be determined by a judge, there still exist certain 

“predicate” or “duty-triggering” facts, the determination of which 

must be left to the jury. Specifically, the predicate facts inherent 

in the “egregious conduct exception” are: “whether the 

governmental entity created or allowed for the persistence of 

circumstances that forced a reasonably prudent person into a 

position of extreme peril, and then failed to remedy that peril in a 

reasonable time.” If no genuine factual dispute exists as to these 

two predicate facts, only then is judgment as a matter of law 

(JML) appropriate. 


Dawn Tedesco was injured when the front tire of her bicycle 

slipped into a sewer grate while she was riding on a public 

highway in the town of Johnston, Rhode Island. 1 The bars of the 

sewer grate ran parallel to the road, thus allowing the front tire of 

Tedesco’s bicycle to slip through. 2 Tedesco brought suit against 

both the town of Johnston and the Rhode Island Department of 

Transportation (DOT); the town decided to settle. 3 Tedesco’s claim 

against DOT centered on one particular fact: Fifteen years earlier 

DOT had circulated a design policy memorandum discussing the 

hazards of parallel bar sewer grates to bicyclists. 4 DOT 

subsequently adopted a policy of replacing parallel bar sewer 

grates with bicycle safe sewer grates, though it had not yet 

replaced the grate in this instance. 5 

At the end of Tedesco’s case, DOT moved for JML based, in 

1. Tedesco v. Connors, 871 A.2d 920, 923 (R.I. 2005). 

2. Id. 

3. Id. 

4. Id. 

5. Id. 

941

TEDESCO 

5/15/2006 9:07 PM 


part, on the public duty doctrine. 6 The judge determined that the 

public duty doctrine shielded the DOT in this case and that the 

egregious conduct exception was inapplicable. 7 DOT’s motion for 

JML was therefore granted; Tedesco subsequently appealed. 8 


On appeal, Tedesco did not argue that the public duty 

doctrine was inapplicable to her case; rather, she argued that the 

DOT’s conduct in this case was such that it should trigger the 

egregious conduct exception to that doctrine. 9 After discussing the 

public duty doctrine and the egregious conduct exception 

generally, the court went on to frame the issues presented in 

terms of the standard for JML. 10 In that context, this case offered 

a question of first impression: Whether applicability of the 

egregious conduct exception to the public duty doctrine is a 

question of law for the judge or a question of fact for the jury. 11 If 

applicability of the egregious conduct exception is a question of 

fact for the jury, then a judge could only grant a motion for JML 

when the facts concerning the conduct of the otherwise immune 

government entity are not genuinely in dispute. 12 The approach 

adopted by the court was to treat applicability of the egregious 

conduct exception as a mixed question of law and fact, with 

certain “duty-triggering” facts left for determination by the jury. 13 

If those “duty-triggering” facts are genuinely in dispute, 

determination of the applicability of the egregious conduct 

standard as a matter of law will amount to a judicial assumption 

of the fact-finding function. 14 The court found in the case at hand 

that the existence of a fifteen-year-old memorandum concerning 

the dangers posed to bicyclists from parallel design sewer grates 

left room for a reasonable juror to find that the DOT’s conduct was 

6. Id. DOT also claimed that it had no legal duty to insure the safety of 

its roads for bicyclists. Id. 

7. Id. 

8. See id. at 924. 

9. Id. at 924. 

10. See id. at 924-26. 


12. Id. at 925. 

13. Id. 

14. Id. at 925-26.

TEDESCO 

5/15/2006 9:07 PM 


egregious. 15 The court therefore reversed the trial court’s 

judgment as a matter of law and remanded the case for further 

proceedings. 16 

The Egregious Conduct Exception Generally 

The public duty doctrine itself requires a two-step analysis. 17 

First, a court determines whether the doctrine applies to the 

particular facts of the case. 18 Second, the court must determine 

whether one of two exceptions to the public duty doctrine 

applies. 19 Those two exceptions are: (1) the special duty exception, 

and (2) the egregious conduct exception. 20 The plaintiff in this 

case did not challenge the application of the public duty doctrine; 

additionally, she waived any argument concerning the special 

duty exception. 21 Thus, the only remaining issue was application 

of the egregious conduct exception. 22 

The egregious conduct exception will allow a plaintiff to 

“pierce the protective shell” afforded a government entity under 

the public duty doctrine only if that entity’s conduct rises to the 

level of egregiousness. 23 Whether a government entity’s conduct is 

in fact egregious will depend upon three factors: (1) the entity’s 

role in creating or allowing the persistence of “circumstances that 

forced a reasonably prudent person into a position of extreme 

peril;” (2) the entity’s actual or constructive knowledge of those 

circumstances; and (3) given a reasonable amount of time, failure 

to eliminate those circumstances. 24 Unless a plaintiff satisfies all 

three of these elements, the government entity will be immune 

from liability. 25 

15. Id. at 928. 

16. Id. at 930. 

17. Id. at 924. 

18. Id. 

19. Id. 

20. Id. 

21. Id. at 923 n.2. 

22. Id. at 924. 

23. Id. (quoting Catri v. Hopkins, 609 A.2d 966, 968 (R.I. 1992)). 

24. Id. (quoting Haley v. Town of Lincoln, 611 A.2d 845, 849 (R.I. 1992)) 

25. Id.

TEDESCO 

5/15/2006 9:07 PM 


Question of Fact versus Question of Law 

Rhode Island case law before this case was somewhat 

ambiguous as to whether the application of the egregious conduct 

exception was a question of fact or a question of law. 26 However, 

in an earlier case, Kuznair v. Keach, 27 the court addressed this 

identical issue in the context of the special duty exception. 28 The 

court in Tedesco found prior treatment of the egregious conduct 

exception “renders it indistinguishable from the special duty 

exception and [the] holding in Kuznair.” 29 The court therefore 

applied the analysis from Kuznair to the egregious conduct 

doctrine in Tedesco to arrive at its characterization of the 

egregious conduct exception as a question of both law and fact. 30 

The ultimate holding of the court in Tedesco was that 

applicability of the egregious conduct exception is a question of 

both law and fact. 31 It is a question of law because it involves the 

analysis of a legal duty, and “[t]he existence of a legal duty is 

purely a question of law . . . .” 32 Additionally, it is a “factintensive” 

inquiry which involves the determination of certain 

duty-triggering facts. 33 The trial justice will decide whether a 

legal duty ultimately exists under the egregious conduct 

exception, but she will often require the assistance of the jury if 

certain predicate facts are genuinely disputed. 34 

In the case of the egregious conduct exception, the court 

“[s]pecifically” identified the predicate or duty-triggering facts. 35 

The court appeard to identify only two of the three elements of the 

egregious conduct exception as involving duty-triggering facts: the 

creation of or allowing of the persistence of circumstances that put 

a reasonably prudent person into extreme peril, and the failure to 

remedy that peril in a reasonable time. 36 Digested further, it 

would appear that the question whether there was extreme peril 

26. See id. at 925. 

27. 709 A.2d 1050 (R.I. 1998). 

28. See id. 

29. 871 A.2d at 925. 

30. Id. at 925-26. 

31. Id. at 926. 

32. Id. at 925 (quoting Kuznair, 709 A.2d at 1055). 

33. Id. 

34. Id. at 925-26. 

35. Id. 

36. Id.

TEDESCO 

5/15/2006 9:07 PM 


or a reasonable time to rectify that peril are duty-triggering 

facts. 37 Thus, the court found that it is the sole province of the 

jury to decide these duty-triggering facts in the face of any 

genuine dispute. 38 

The Tedesco court stressed that its holding should not act as 

an absolute bar to JML. 39 Rather, the decision only acts to bar 

JML in situations where duty-triggering facts are genuinely in 

dispute. 40 In other words, if a plaintiff fails to offer legally 

sufficient evidence to allow a juror to find for her on each element 

of the egregious conduct standard, then JML dismissing the 

plaintiff’s case is appropriate. 41 Conversely, in the rare case 

where a plaintiff offers sufficient evidence such that a reasonable 

juror could not fail to conclude that the government’s conduct was 

egregious, JML is likewise appropriate, and the jury can be 

instructed only as to the law of negligence. 42 

Jury Instructions 

The court also incorporated the guidance of the Kuznair court 

concerning proper form of jury instructions in cases involving an 

exception to the public duty doctrine. 43 Jury instructions in a case 

involving the egregious conduct exception should “incorporate the 

elements of egregious conduct into the elements of negligence.” 44 

The court provided an example: 

In order to find the defendant’s conduct is egregious, you 

must find (1) the defendant created or allowed for the 

persistence of circumstances that would force a 

reasonably prudent person into a position of extreme 

peril; (2) the defendant knew or should have known of the 

perilous circumstances; and (3) the defendant, after a 

reasonable amount of time to eliminate the dangerous 

condition, failed to do so. If the plaintiff fails to prove 

defendant’s conduct was egregious by a preponderance of 

37. See id. 

38. Id. at 926. 

39. Id. 

40. Id. 

41. Id. 

42. Id. 

43. Id. 

44. Id.

TEDESCO 

5/15/2006 9:07 PM 


the evidence, you must return a verdict in favor of the 

defendant. If you do find that the defendant’s conduct is 

egregious by a preponderance of the evidence, then, and 

only then, may you proceed to determine whether the 

defendant’s egregious conduct was the proximate cause of 

any damages suffered by the plaintiff, and the amount of 

those damages. 45 

Application of the Mixed Question Rule to the Facts of Tedesco 

The Tedesco court reviewed the trial justice’s decision “bound 

by the same rules and standards as the trial justice.” 46 Using this 

standard, according to the court, the trial justice’s error was 

“clear.” 47 By producing the DOT memorandum, Tedesco offered 

sufficient evidentiary bases to allow a reasonable juror to conclude 

that the defendant’s conduct in this instance was egregious. 48 The 

error occurred when the trial justice decided certain dutytriggering 

facts, mainly citing the fact that Rhode Island has 

20,000 to 30,000 sewer grates, to arrive at the conclusion that the 

defendant’s conduct was not egregious. 49 In deciding these facts, 

the court invaded the jury’s fact-finding responsibilities. 50 

COMMENTARY 

As the Tedesco court itself noted, the public duty doctrine is 

“much maligned.” 51 Any unhappiness about the public duty 

doctrine almost certainly arises from its long and confused history, 

as the Tedesco court also noted. 52 Unfortunately, the decision in 

Tedesco is likely to further confound the already confused doctrine 

and its two well meaning exceptions. 

First, the nature of a “duty-triggering” fact in relationship to 

the three well-established elements of the egregious conduct 

exception is not entirely clear. As already noted here, the court 

seems to quite specifically state that the duty-triggering facts 

45. Id. at 926-27. 

46. Id. at 927 (quoting Mills v. State Sales, Inc. 824 A.2d 461, 472 (R.I. 

2003)). 

47. Id. at 928. 

48. Id. 

49. See id. at 927-28. 

50. See id. at 928. 

51. Id. at 929. 

52. See id. at 930.

TEDESCO 

5/15/2006 9:07 PM 


relate only to whether there is extreme peril, and whether the 

defendant remedied that peril in reasonable time. 53 Notice, actual 

or constructive, does not appear to require the determination of 

any duty-triggering facts. 54 It is not clear why notice issues 

should not involve predicate duty-triggering facts, and this 

distinction is at odds with the notion of a “fact-intensive inquiry.” 

Second, the Tedesco decision takes great pains to analogize to 

the decision in Kuznair in reaching its conclusions. 55 This does 

not necessarily seem like a wise course of action considering the 

confusion that already surrounds the special duty exception. 56 If 

division of labor between the trial justice and the jury is desirable, 

it would make sense to avoid the murky waters of the special duty 

exception in establishing a system to accomplish that task. 

Only time will tell whether the rule in Tedesco can be 

managed with a degree of efficiency by the trial justices of Rhode 

Island’s Superior Courts; the somewhat confusing distinction 

between duty-triggering facts and the exception they establish will 

certainly require time to work out. 

CONCLUSION 

The Rhode Island Supreme Court in Tedesco held that the 

egregious conduct exception to the public duty doctrine is a mixed 

question of law and fact. 57 Analogizing to the court’s previous 

decision in Kuznair, the court held that while the existence of a 

legal duty is purely a question of law to be left to the court, certain 

duty-triggering facts, if any exist and are genuinely disputed, 

must be decided by a jury as the finder of fact. 58 

Terrence P. Haas 

53. Id. at 925. 

54. See id. 

55. Id. at 924-25. 

56. See generally Aaron R. Baker, Comment, Untangling the Public Duty 

Doctrine, 10 ROGER WILLIAMS U. L. REV. 731 (2005) (discussing Rhode Island’s 

public duty doctrine and the difficulties surrounding it). 

57. Tedesco, 871 A.2d at 925. 

58. Id.

LUCIER 

5/15/2006 9:23 PM 

Tort/Property Law. Lucier v. Impact Recreation, Ltd., 864 

A.2d 635 (R.I. 2005). A commercial landlord is not liable for 

injuries that the guest of a tenant suffered on leased premises, 

unless the injury results from the landlord’s breach of a covenant 

to repair in the lease, or from a latent defect known to the 

landlord but unknown to the tenant or guest, or because the 

landlord subsequently has assumed the duty to repair. 

Additionally, a lease that requires a commercial landlord’s 

approval of any improvements that the tenant may make to the 

premises and provides that the landlord will maintain the 

structure of a building, allowing the landlord to enter the property 

at all reasonable times, does not equate to the landlord having 

control over the premises. Furthermore, negligent entrustment, 

that is, breach of the landlord’s duty to ensure that the 

commercial tenant is not engaging in an activity that is inherently 

dangerous, is not a basis for liability. Regardless of negligent 

entrustment not being a basis for liability, the landlord’s 

insistence on the tenant procuring liability insurance and having 

guests sign waivers and release of liability forms does not show 

that the activity engaged in by the tenant was inherently 

dangerous. 


Roland and Kerri Lucier are the parents of Timothy Lucier, 

who was injured at a skateboard facility operated by Impact 

Recreation, Ltd. (Impact) on premises it was leasing from Eugene 

Voll. 1 

When the injury occurred, Impact was leasing a portion of a 

larger building from Voll; the lease restricted the use of the 

premises to a bicycle, skateboarding, and in-line skating park. 2 

Under the lease, Voll was required to maintain the structure of 

the building as well as the building’s exterior; Impact was 

required to maintain the interior of the building. 3 

The lease 

further provided that Impact obtain Voll’s approval before making 

1. Lucier v. Impact Recreation, Ltd., 864 A.2d 635, 637-38 (R.I. 2005). 

2. Id. at 637. 

3. Id. 

949

LUCIER 

5/15/2006 9:23 PM 


any alterations or improvements to the property. 4 

Additionally, 

under the lease, Impact could install trade fixtures on the 

premises that would remain the property of Impact regardless of 

the manner of their installation. 5 

Finally, of note in the lease was 

a requirement that Impact obtain a general liability policy and 

require all participants to execute a waiver and release of liability 

before participating in activities on the premises. 6 

On March 16, 2001, Timothy’s father brought him and several 

of his friends to the skateboard facility to celebrate Timothy’s 

birthday. 7 

At the skateboard facility, Timothy’s father signed the 

required waiver. 8 

Timothy put on protective gear and began to 

skateboard. 9 

After roughly an hour, Timothy went down a ramp 

and the front wheel of his skateboard caught inside a small hole in 

the ramp causing him to fall. 10 

In an attempt to execute a safety 

maneuver and shield his face, Timothy fell on his right leg causing 

it to snap. 11 

As a result of Timothy’s fall, he suffered a spiral 

fracture in a growth plate of his right leg. 12 

The Luciers filed this premises liability action against Voll, 

Impact, and one of Impact’s principals, alleging failure to 

maintain safe conditions, failure by the landlord to ensure that 

the commercial tenant was not engaging in an inherently 

dangerous activity, and breach of duty due to negligently 

maintained, dangerous conditions on the property. 13 

Default 

judgment was entered against Impact; Voll moved for summary 

judgment. 14 

The motion justice granted Voll’s motion for summary 

judgment. 15 Plaintiffs subsequently filed an appeal on May 17, 

2004. 16 

4. Id. at 638. 

5. Id. 

6. Id. 

7. Id. 

8. Id. 

9. Id. 

10. Id. 


12. Id. 

13. Id. at 637. 

14. Id. 

15. Id. 

16. Id. at 637 n.2.

LUCIER 

5/15/2006 9:23 PM 



On appeal, the plaintiffs argued that the motion justice erred 

in granting the defendant’s motion for summary judgment. 17 

The 

Luciers claimed that the defendant, as landlord, had a duty to 

safely maintain the premises. 18 

Alternatively, the Luciers argued 

that the defendant never surrendered full possession of the 

premises. 19 

Lastly, the plaintiffs claimed that since the defendant 

let his premises for the purpose of carrying on an inherently 

dangerous activity, he had a nondelegable duty to ensure that the 

proper precautions were taken in connection with carrying out 

that activity. 20 

Upon de novo review, the Rhode Island Supreme 

Court affirmed the motion justice’s order of summary judgment, 

stating that the general rule remains that a nonresidential 

landlord is not liable for injuries that the guest of a tenant suffers 

on the leased premises, with three exceptions. 21 

The court 

additionally held that the defendant did not have control over the 

property and that the skateboard park was not an “inherently 

dangerous” facility. 22 

Premises Liability 

The court principally focused its analysis on premises 

liability. 23 

Rhode Island premises liability law imposes an 

affirmative duty upon owners and possessors of property “to 

exercise reasonable care for the safety of persons reasonably 

expected to be on the premises . . . includ[ing] an obligation to 

protect against the risks of dangerous conditions existing on the 

premises,” provided the landowner knows of, or reasonably should 

know of, the dangerous condition. 24 

However, the court stated 

that the general rule in Rhode Island concerning nonresidential 

property is that a landlord is not liable for injuries that the guest 

17. Id. at 637. 

18. Id. at 639. 

19. Id. at 640. 

20. Id. at 641. 

21. Id. at 640. 

22. Id. at 641-42. 

23. See 639-41. 

24. Id. at 639 (citing Kurczy v. St. Joseph Veterans Ass’n, Inc., 820 A.2d 

929, 935 (R.I. 2003) (quoting Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 

744, 752 (R.I. 2000))).

LUCIER 

5/15/2006 9:23 PM 


of a tenant suffers on the leased premises unless one of three 

exceptions are met. 25 

These three exceptions require that the 

injury result from one of the following: (1) “the landlord’s breach of 

a covenant to repair in the lease [or (2)] from a latent defect 

known to the landlord but not known to the tenant or guest [or (3)] 

because the landlord subsequently has assumed the duty to 

repair.” 26 

In this instance, the court held that the plaintiffs had 

failed to present evidence sufficient to support any of the three 

exceptions to the general rule, and as such, the defendant was not 

liable for the injuries to their son. 27 

Additionally, the court noted that when land is leased to a 

tenant, property law “regards the lease as equivalent to the sale of 

the premises for the term [of the lease].” 28 

The court recognized 

that even if the defendant remained responsible for maintaining 

the exterior of the structure, required that Impact get approval 

first before making alterations to the premises, and retained the 

right to enter the property, he still did not retain control over the 

premises. Rather, these lease provisions were merely intended to 

protect the defendant’s investment and reversionary interest in 

the property. 29 

Negligent Entrustment 

As of the time of the Lucier decision, the Rhode Island 

Supreme Court had never recognized negligent entrustment as a 

basis for liability and it declined to do so in Lucier as well. 30 

The 

plaintiffs argued that the defendant had leased his premises for 

the purpose of conducting an inherently dangerous activity and 

therefore had a duty to make sure that reasonable precautions 

were taken in connection with that activity. 31 

The plaintiffs’ 

argument continued to assert that the defendant acknowledged 

that skateboarding was a dangerous activity by requiring that 

25. Id. at 640. 

26. Id. (quoting E. Coast Collision & Restoration, Inc., v. Allyn, 742 A.2d 

273, 276 (R.I. 1999)). 

27. Id. 

28. Id. (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW 

OF TORTS § 63 at 434 (5th ed. 1984)). 

29. Id. at 640. 

30. Id. at 641 (citing Regan v. Nissan N. America, Inc., 810 A.2d 255, 257 

(R.I. 2002)). 

31. Id.

LUCIER 

5/15/2006 9:23 PM 


Impact maintain a liability insurance policy and have participants 

sign a waiver and release. 32 

The court did not address the 

plaintiffs’ negligent entrustment claim because they failed to 

present any competent evidence that skateboarding was an 

inherently dangerous activity. 33 

Moreover, the fact that the 

defendant thought the activity to be sufficiently hazardous to 

merit the procurement of liability insurance and the signing of 

waivers did not indicate that the activity was inherently 

dangerous. 34 

COMMENTARY 

This decision reinforces the general rule in Rhode Island that 

insulates commercial landlords from liability for injuries to their 

tenants or their tenants’ guests. 35 

Commercial landlords are 

encouraged to adopt a “hands-off” approach towards leased 

property or else be subject to liability. 36 

While this decision seems 

as though it may punish attentive landlords, in reality, it relieves 

commercial landlords of an especially burdensome responsibility 

of constant inspection of their leased property. 

Were commercial landlords liable for the injuries of their 

tenants or guests, landlords would have to become full-time 

maintenance men for their tenants in order to avoid potential 

liability. Even absent a covenant to repair, if commercial 

landlords were to be held liable for tenants’ and guests’ injuries, 

landlords would be forced to watch their leased property under a 

microscope and repair defects in fixtures on the premises 

regardless of whether or not they were installed by the tenant. 

This duty would be inconvenient for commercial landlords who 

often lease numerous properties simultaneously, as well as for 

tenants whose business operations would be interrupted regularly 

by landlords’ inspections of every small detail of their operation. 

Additionally, when a specialized business leases a landlord’s 

premises, specialized fixtures may be installed by the tenant that 

the landlord would not be familiar with and would not be qualified 

to recognize defects in, let alone repair. Using the case at hand as 

an example, an average landlord would not even begin to know 

32. Id. 

33. Id. 

34. Id. 

35. See id. at 639-41. 

36. See id.

LUCIER 

5/15/2006 9:23 PM 


the difference between a skateboarding ramp that was constructed 

safely and one that was not safe for normal use. A rule different 

from the one articulated in this case would require commercial 

landlords to become intimately acquainted with even the smallest 

details of their tenants’ places of business. 

Also of note is the court’s decision that an activity is not 

inherently dangerous simply because the landlord insists that the 

tenant obtain liability insurance and has participants sign 

waivers. If, as the plaintiffs suggest, a landlord were to have a 

nondelegable duty to ensure precautions are taken in connection 

with carrying out inherently dangerous activities, and an activity 

is presumed to be inherently dangerous if the landlord requires 

the tenant to obtain liability insurance, 37 then cautious landlords 

would be condemning themselves to a higher duty of care by 

seeking to protect their interests by requiring that their tenants 

obtain a liability policy. Alternatively, by not requiring the tenant 

to obtain liability insurance, the activity would not be presumed to 

be inherently dangerous, thus contributing to a lower duty of care, 

but potentially subjecting the landlord to liability that may have 

been otherwise covered by the tenant’s liability policy. This 

paradoxically punishes landlords for seeking to insulate 

themselves from liability. In a parallel example, if an overly 

cautious landlord were to require a tenant who is operating a 

retail store to obtain liability insurance, then the landlord’s 

insistence on the insurance would be evidence that retail sale is 

an inherently dangerous activity. Thus, the consequences of the 

court rendering a different decision would have been extremely 

unfair to landlords seeking to protect their own interests. 

CONCLUSION 

The Rhode Island Supreme Court held that commercial 

landlords are not liable for injuries to their tenants or guests, 

unless the injury results from the landlord’s breach of a covenant 

to repair, from a latent defect known to the landlord but not the 

tenant, or because the landlord has assumed the duty to repair. 38 

Additionally, the court held that just because a landlord is 

required to maintain the exterior of a leased building, approve of 

37. See id. 

38. Id. at 640.

LUCIER 

5/15/2006 9:23 PM 


any alterations to the premises, and retain the right to enter the 

premises at any reasonable time, does not mean that the landlord 

retained control over the premises. 39 

Finally, a landlord’s 

insistence on a tenant’s procuring liability insurance and having 

guests sign waivers and release of liability forms does not show 

that the activity engaged in by the tenant was inherently 

dangerous for purposes of negligent entrustment. 40 

In this case, 

the defendant commercial landlord had no duty to the plaintiffs 

whose son was injured while skateboarding on the defendant 

tenant’s defective ramp. 41 

Mark H. Hudson 

39. Id. 

40. Id. at 641. 

41. Id. at 642.

Vol 11 No 3 - Roger Williams University School of Law

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