Opinion
C.A. No. WC-2019-137
06-12-2020
SUSAN CICILLINE BUONANNO v. MATTHEW MANNIX, in his capacity as a Member of the Narragansett Town Council; JILL LAWLER, in her capacity as a Member of the Narragansett Town Council; RICHARD LEMA, in his capacity as a Member of the Narragansett Town Council; PATRICK MURRAY, in his capacity as a Member of the Narragansett Town Council; JESSE PUGH, in his capacity as a Member of the Narragansett Town Council; THERESA DONOVAN, in her capacity as Town Clerk of the Town of Narragansett
ATTORNEYS: For Plaintiff: Matthew T. Jerzyk, Esq. For Defendant: Andrew H. Berg., Esq.; Matthew Oliverio, Esq.; John Gowell, Esq.; Katherine Bishop, Esq.; Randall Souza, Esq.; Mark Davis, Esq.
DECISION LANPHEAR , J. This matter came on for consideration before Mr. Justice Lanphear on cross motions for summary judgment. The parties raise no questions of fact and there are no disputed issues of fact.
Plaintiff, Susan Cicilline Buonanno (Plaintiff), submitted a voter initiative petition to the Narragansett Town Clerk requesting that a question be placed on the ballot for the next general election. In 2018, the Town of Narragansett (the Town) acquired property to use as a library. The initiative petition seeks to prevent the Town from selling or conveying that property "unless such real estate transaction is either approved by the initiative process or it is for the relocation of the Maury Loontjens Library to this site[.]"
Pursuant to § 1-4-3 of the Narragansett Home Rule Charter, when such a petition is filed with sufficient voter signatures, the Town Clerk files the petition and forwards the petition to the Town Solicitor for legal review. Within fourteen days, the Town Solicitor submits a written opinion to the Town Council "as to the legality of the proposed petition." The Town Council determines the validity of the petition at its next meeting. If it is accepted as valid, the authors of the petition have 120 days to obtain additional signatures in order to have the matter listed on the general election ballot. (Narragansett Home Rule Charter §§ 1-4-3 and 4.)
On March 18, 2019, the Town Council voted to mark Plaintiff's initiative petition as invalid, preventing it from being placed on the ballot. This action was commenced by the Plaintiff and asks this Court to issue a declaratory judgment that the petition be marked as "accepted," thereby rendering it appropriate for a petition for further signatures and placement on the ballot.
The Town contends that the Town Council has broad executive and legislative powers, and, as the petition seeks to encroach on those powers, the petition is invalid and inappropriate. The charter gives the power of voter initiative to legislative decisions. The Narragansett Home Rule Charter states in part:
"Sec. 1-4-1.-General provisions.
"In order to preserve voter participation in the town government of Narragansett, and to provide for legislative checks and balances, there are hereby established procedures whereby the qualified voters may, by petition, initiate legislative proposals for consideration by the town council and the town electorate. The process shall permit the voters to enact and/or rescind town laws, regulations, ordinances and resolutions. It shall also permit the voters to amend the Town Charter by this same process. The right of voter initiative and referendum shall provide the electorate with all the legislative powers now vested in the council by this Charter.
"However, any proposed legislation which is prohibited by the State Constitution, Federal Constitution, state laws, federal laws or recognized judicial decisions interpreting state or federal law are excepted from the provisions of this chapter.
"Each petition shall be limited to one (1) issue."The charter provides a broad power of voter initiative to the people. The charter established two separate means of enacting a local legislative act in the Town: voter initiative and actions by the Town Council. Although the Town Council may be referred to as the legislative body of the Town in other provisions of Town Law; clearly, there is another way to enact local ordinances and charter changes.
The Town then claims that the proposed initiative is not legislative in nature, and therefore beyond the scope of a voter initiative. While not addressing whether the power of voter initiative goes beyond legislative power, an examination of the scope of the initiative, limiting the conveyancing of property, is helpful. Our high Court has discussed the expanse of legislative powers several times.
In Providence & Worcester Co. v. Blue Ribbon Beef Co., Inc., 463 A.2d 1313, 1316 (R. I. 1983), the Court declared:
"Section 2.3 of the Charter Laws of the City of Providence vests legislative power of the municipality in the city council. Since the conveyance of property is generally considered a legislative act, Port Authority of Allegheny County v. Flaherty, 6 Pa. Commw. 135, 293 A.2d 152 (1972); 10 McQuillin, Municipal Corporations § 28.44b (3d ed. 1981), control over the disposition of municipal property belongs in the hands of the city council. General Laws 1956 (1980 Reenactment) § 45-2-5 reinforces this conclusion by explicitly granting to any town or city council, in addition to power granted by charter, the authority to 'sell, lease, convey or use * * * any lands or properties owned by said city or town * * * whenever, in the opinion of said city or town council, said lands or properties have become unsuitable [for public purposes]."'In that case, the Court concluded that the requirement that the mayor sign a lease extension was merely a ministerial act, even though it was required by an ordinance.
The Town relies on two cases for its claim that the conveyancing of property (and, hence, the prevention of any conveyance) is not legislative in nature.
In Maynard v Beck, 741 A.2d 866, 871 (RI 1999), the high Court noted:
"The plaintiffs suggest that some courts have established a two-part test to determine whether an action is legislative as opposed to administrative or executive. In Carver v. Foerster, 102 F.3d 96 (3d Cir. 1996), for example, the Third Circuit set forth the following standard to determine whether an action was legislative or administrative in character:
'"To be legislative, the act must be (1) substantively legislative, such as 'policy-making of a general purpose' or 'line-drawing'; and (2) procedurally legislative, such that it is 'passed by means of established legislative procedures.' Id. at 100 (quoting Ryan v. Burlington County, New Jersey, 889 F.2d 1286, 1290-91 (3d Cir. 1989))."
In the case at bar, the voter initiative is not procedurally accomplished by a customary legislative body, but the Town Charter provides for voter initiative for legislative changes. Hence, it is procedurally proper. It clearly establishes, and is intended to establish, the policy of the Town, even though it pertains to a specific parcel.
The Town also referenced Opinion to the Governor, 112 R.I. 139, 308 A.2d 802 (1973) for the proposition that the power to manage property is of an executive nature. Actually, in this case, the Court was dealing with the issue of whether legislative powers could be delegated to the Industrial Building Authority. The Court concluded:
"We see no reason for an extensive discussion of this question. In our opinion the powers vested in the Authority are so limited and restricted by the provisions of the statute that they do not constitute an unlawful delegation of legislative power. The General Assembly has recognized the need to rely on the executive branch of state government in determining the particular public facilities needed to provide essential public services, but the statute does not confer on, or delegate to, the Authority the power to make law itself, nor to say what the law shall be. The powers conferred by the statute are discretionary in nature, of an executive and administrative character, and well defined and limited. The purposes of the statute are clear and the authority is furnished by the statute with well-defined guidelines within which it may function."Opinion to the Governor, 112 R.I. at 150, 308 A.2d at 808 (citation omitted).
Directing the conveyance of a property is a legislative act. G.L. 1956 § 45-2-5 requires town legislative approval for conveyancing. Article XIII of the Rhode Island Constitution provides municipalities with the opportunity to determine its scope of self-governing through a home rule charter. A home rule charter can provide legislative powers to voter initiatives, as Narragansett has done.
Another of the Town's contentions is that the process of voter initiative proposed herein goes beyond a legislative matter. In their memoranda, the parties to the summary judgment failed to delineate the difference between executive and legislative matters, submit case law or other authority to establish that distinction, or to apply that distinction to the case at bar. It is noteworthy that the language of the charter refers to powers of the Town Manager and charter changes. Clearly, the scope of voter initiative in Narragansett is expansive.
As indicated above, legislative acts in the Town can be done by either Town Council action or voter initiative. The voter initiative here is a proper exercise of legislative power.
Accordingly, Plaintiff's motion for summary judgment is granted. The Town's motion for summary judgment is denied. This Court specifically determines that the petition filed by the Plaintiff is valid pursuant to the home rule charter of the Town, and the Town Clerk shall forthwith stamp the petition as an accepted petition pursuant to § 1-4-4 of the Narragansett Home Rule Charter.
ATTORNEYS:
For Plaintiff:
Matthew T. Jerzyk, Esq.
For Defendant:
Andrew H. Berg., Esq.; Matthew Oliverio, Esq.;
John Gowell, Esq.; Katherine Bishop, Esq.;
Randall Souza, Esq.; Mark Davis, Esq.