Rhod e Isl and Bar Journal Rhode Island Bar Association Volume 60. Number 3. Novembe r/ December 2 011
Criminal Consequences of Sending False Information on Social Media Preserving Tax Incentives for Charitable Giving New Scarlet Letter: Are We Taking The Sex Offender Label Too Far? Refusal Cases: Beyond the Basics Book Review: Constitution Day: Reflections by Respected Scholars RHODE I SLAND Bar Association 1898 11 RHODE ISLAND BAR ASSOCIATION LAWYER’S PLEDGE As a member of the Rhode Island Bar Association, I pledge to conduct myself in a manner that will reflect honor upon Articles the legal profession. I will treat all participants in the legal process with civility. In every aspect of my practice, I will be 5 Criminal Consequences of Sending False Information honest, courteous and fair. on Social Media Editor In Chief , David N. Bazar John R. Grasso, Esq. and Brandon Fontaine Editor , Frederick D. Massie Assistant Editor , Kathleen M. Bridge 13 Preserving Tax Incentives for Charitable Giving Editorial Board James S. Sanzi, Esq. Victoria M. Almeida, Esq. Bryan W. Hudson, Esq. Ellen R. Balasco, Esq. Hon. Patricia A. Hurst 17 The New Scarlet Letter: Susan Benfeito, Esq. Marcia McGair Ippolito, Esq. Moshe S. Berman, Esq. Tobias Lederberg, Esq. Are We Taking The Sex Offender Label Too Far? Roland E. Chase, Esq. Courtney L. Manchester, Esq. Katherine Godin, Esq. Jerry Cohen, Esq. Ernest G. Mayo, Esq. Debra Conry, Esq. Elizabeth R. Merritt, Esq. Eric D. Correira, Esq. Kerri M. Morey, Esq. 23 Lunch with Legends: Trailblazers, Trendsetters and Treasures Diane B. Daigle, Esq. Matthew R. Plain, Esq. of the Rhode Island Bar William J. Delaney, Esq. Kevin N. Rolando, Esq. Matthew R. Plain, Esq. and Elizabeth R. Merritt, Esq. Anastasia Dubrovsky, Esq. Miriam Ross, Esq. Matthew Louis Fabisch, Esq. Krista J. Schmitz, Esq. Kevin J. Gallagher, Esq. Elliot Taubman, Esq. 27 BOOK REVIEW Constitution Day: Reflections by Respected Maureen D. Gemma, Esq. Timothy C. Twardowski, Esq. Scholars edited by Patrick T. Conley, Esq. Jay S. Goodman, Esq. Harris K. Weiner, Esq. Jay S. Goodman, Esq. Executive Director , Helen Desmond McDonald 31 Refusal Cases: Beyond the Basics Association Officers William J. Delane y, President Robert H. Humphrey, Esq. and Kimberly A. Petta, Esq. Michael R. McElroy, President-Elect J. Robert Weisberger, Jr. , Treasurer Bruce W. McIntyre, Secretary
Direct advertising inquiries to the Editor, Frederick D. Massie, Rhode Island Bar Journal, 115 Cedar Street, Providence, RI 02903, (401) 421-5740. Features USPS (464-680) ISSN 1079-9230 Rhode Island Bar Journal is published bimonthly by 3 New Initiatives in the Practice 37 Lawyers on the Move the Rhode Island Bar Association, 115 Cedar Street, and at the Bar 44 In Memoriam Providence, RI 02903. PERIODICALS POSTAGE PAID AT PROVIDENCE, RI 11 Rhode Island National Guard General 46 Advertiser Index Praises Bar’s Volunteer US Armed Subscription: $30 per year Forces Legal Service Project Postmaster 25 Continuing Legal Education Send Address Correction to Rhode Island Bar Journal, 115 Cedar Street, Providence, RI 02903 35 SOLACE – Helping Bar Members in Times of Need www.ribar.com Front Cover Photograph Providence City Hall, by Brian McDonald
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Some 36 years ago, I was a sports writer at lawyer. Another, from Attleboro, wanted to Notre Dame. I was a pretty good sports writer. know about procedures in Rhode Island District In fact, my Dad was upset when I turned down Court, as they are different from those in a job with ABC Sports to go to law school. It Massachusetts District Court. One had just was one of the few times I saw him sad from a started her own firm and was interested in any decision I made. But for me, there was no deci - free seminars, as well as whether any of the sion because I always wanted to be a lawyer. other Committee members had referrals. I was the sports editor of the Notre Dame These young professionals deserve the means Scholastic , the school’s magazine. One of the to grow into fine and competent attorneys. issues was devoted to a recap of the football Passing the bar examination only confirms min - season. The Scholastic’s Football Review was imum competence. Even after 28 years of prac - a 48-page tribute to the recently-completed tice, I can honestly state I am still growing and William J. Delaney, Esq. season. The 1974 Scholastic Football Review developing in my profession. There is a reason President featured a four-page color cover. It was truly why the legal profession is most often described Rhode Island Bar Association an experience in which I still take great pride as the practice of law . some 37 years later. Our new lawyers deserve all the assistance So what does this have to do with my we can provide to further their professional and President’s message? With due deference to the personal development. The Bar’s newly-estab - Providence Journal’s sportswriters Bill Reynolds, lished Online Attorney Resource (OAR) pro - Jim Donaldson and Dan Shaughnessy, in each gram, more fully discussed below, will serve as issue of the Scholastic , I wrote a column based a means to provide mentoring, guidance, and on three or four talking points titled, Irish strategies to new lawyers who need and desire Our new lawyers Sports Shorts . What follows is a similar, multi - the relationships many of us have had the pleas - ple topic review with a legal bent, and more ure of fostering and developing during our deserve all the particularly, with a Bar Association focus. I careers. I still rely upon my mentors to guide hope you enjoy my effort. me through tough and challenging issues. I assistance we can encourage all Bar members to aid me in leaving provide to further Our Bar’s New Lawyers’ Committee the next generation of Rhode Island lawyers a I made a commitment to attend at least one little better off than ours. Members with less their professional meeting of the Bar Association’s 26 committees than ten years of experience comprise over one and personal this year. Most of my predecessors have under - quarter of the Bar Association. They are our taken this challenging task and, in the process, life’s blood. Please handle them with care. I development. gained many pounds from the luncheons com - urge our more seasoned members to volunteer mensurate with some of these meetings. One as information resources for the OAR Program. of the more interesting meetings I attended was And, I encourage all our new members to seek the New Lawyers Committee’s. Our Bar defines the assistance of OAR volunteers and actively new lawyers as those admitted to practice for participate in one or more of our excellent Bar ten years or less, regardless of the lawyer’s age. committees. This involvement and participation This group is comprised of approximately 1,750 will benefit all of us today and in the future. of the Bar Association’s 6,300 members. To say this particular committee is one of the Bar National Guard General’s Visit to the House Association’s most important and crucial is an of Delegates understatement, as the future of our Bar and We had the distinct pleasure to receive Major our profession rests with them. General Kevin R. McBride, Adjutant General These new lawyers are an interesting group. of the Rhode Island National Guard, who Most are well organized, confident, quite social, addressed the House of Delegates on September and enjoy networking. During the meeting, 26th. Immediate Past Bar President Victoria Committee members shared their areas of legal Almeida introduced General McBride to the focus and professional and personal interests. House, and he gave an inspirational talk con - One said he was driving from Boston each day cerning the much-appreciated assistance our to Cranston, leaving a newborn with his law Bar is providing to Rhode Island service people school classmate wife, a Boston government and their families, on a myriad of legal issues,
Rhode Island Bar Journal Novembe r/December 2011 3 through the Bar’s United State Armed During the proceedings, I spent some RHODE ISLAND BAR JOURNAL Forces Legal Service Project. time with several of the attendees, some Editorial Statement Following the General’s address, I of whom were around my age, and dis - The Rhode Island Bar Journal is the Rhode Island Bar Association’s official magazine for Rhode Island recognized Bar member and U.S. Army cussed their issues, many of which were attorneys, judges and others interested in Rhode Island Captain Michael Jolin’s gift to our Bar heartbreaking. I also spoke with two for - law. The Bar Journal is a paid, subscription magazine of an attractive, framed, wooden presen - mer veterans who are Bar members and published bi-monthly, six times annually and sent to, tation case including a plaque and an asked them to join our Armed Forces among others, all practicing attorneys and sitting judges, in Rhode Island. This constitutes an audience of over American flag which had flown in Legal Services Project. They both accept - 6,000 individuals. Covering issues of relevance and pro - Afghanistan. I invited the Delegates to ed my invitation. It was a good day all viding updates on events, programs and meetings, the view the gift following the meeting, and around. Please be mindful of what veter - Rhode Island Bar Journal is a magazine that is read on arrival and, most often, kept for future reference. The former Bar President Harold Demopulos ans can do for veterans during these har - Bar Journal publishes scholarly discourses, commen - cradled the case in a touching manner. rowing times. tary on the law and Bar activities, and articles on the Harold left Brown University during administration of justice. While the Journal is a serious World War II and served in Europe. He Pulling for the OAR Program magazine, our articles are not dull or somber. We strive to publish a topical, thought-provoking magazine that returned home following the War, com - New lawyers seeking guidance and addresses issues of interest to significant segments of pleted his education and has become one support, in a range of practice areas, have the Bar. We aim to publish a magazine that is read, of our Association’s elder statesmen. a new Bar program connecting them to quoted and retained. The Bar Journal encourages the free expression of ideas by Rhode Island Bar members. House member Jim Marusak has a son, experienced volunteer attorneys. The The Bar Journal assumes no responsibility for opinions, Daniel, currently serving in Afghanistan, unique, new Online Attorney Resource statements and facts in signed articles, except to the following the completion of his freshman (OAR) program, developed by our Bar extent that, by publication, the subject matter merits year at Roger Williams Law School. I volunteers and staff, and available through attention. The opinions expressed in editorials represent the views of at least two-thirds of the Editorial Board, have known Jim since I started practicing the Member’s Only section of the Bar’s and they are not the official view of the Rhode Island in Rhode Island, and he is a very sincere website, will benefit both new and expe - Bar Association. Letters to the Editors are welcome. man. Jim ran his finger along the case rienced attorneys and, ultimately and Article Selection Criteria and told me, “I heard from my son, equally importantly, our clients. I chal - • The Rhode Island Bar Journal gives primary prefer - Danny, via e-mail on September 11th. He lenge both new and experienced attor - ence to original articles, written expressly for first publication in the Bar Journal , by members of the said that there was no place in the world neys to take advantage of this exciting Rhode Island Bar Association. The Bar Journal does that he would rather be on that day.” new program. Further details will be not accept unsolicited articles from individuals who We need to be aware that while these forthcoming. are not members of the Rhode Island Bar Association. Articles previously appearing in other publications young men and women are serving over - are not accepted. seas, they leave behind families who need Roger Williams University School of • All submitted articles are subject to the Journal’s to be protected. I urge all members, espe - Law’s Entrepreneurial Clinic editors’ approval, and they reserve the right to edit or reject any articles and article titles submitted for cially veterans among the Bar, to volun - Many law school graduates are cur - publication. teer for a U.S. Armed Forces Legal Services rently facing the repayment of large stu - • Selection for publication is based on the article’s Project case. Please see the related article dent loans, a dearth of job opportunities, relevance to our readers, determined by content and on page 11 in this Bar Journal. I also and a horrific economy. To further com - timeliness. Articles appealing to the widest range of interests are particularly appreciated. However, com - want to acknowledge the Bar’s Public plicate matters, many law schools are not mentaries dealing with more specific areas of law are Services Director Sue Fontaine on her providing law students with the practical given equally serious consideration. and her staff’s work on this wonderful skills to prepare them for practice in the • Preferred format includes: a clearly presented state - ment of purpose and/or thesis in the introduction; Project. Also, please keep Mike Jolin, real world. And, over forty percent of supporting evidence or arguments in the body; and who remains a member of the House recent Roger Williams University (RWU) a summary conclusion. while temporarily serving in Afghanistan, School of Law graduates are members of • Citations conform to the Uniform System of Citation as well as the other members of the Bar our Bar Association. • Maximum article size is approximately 3,500 words. However, shorter articles are preferred. Association and the families of other RWU is working to provide its stu - • While authors may be asked to edit articles them - members whose loved ones are serving dents with an expansive commercial law selves, the editors reserve the right to edit pieces for our country every day, in your thoughts. skill set with its Entrepreneurial Clinic. legal size, presentation and grammar. • Articles are accepted for review on a rolling basis. The Clinic’s goal, with the assistance of Meeting the criteria noted above does not guarantee Attending Operation Stand Down: local attorneys and other professionals, is publication. Articles are selected and published at the I had the honor and privilege to attend to help RWU law students develop more discretion of the editors. the first day of Operation Stand Down effective client interaction skills, applying • Submissions are preferred in a Microsoft Word for - mat emailed as an attachment or on disc. Hard copy at Diamond Hill Park in September. their academic knowledge to actual cases. is acceptable, but not recommended. Attorneys Bill Trezvant from the Attorney Stay tuned for further information on the • Authors are asked to include an identification of their General’s Office, Peter DeSimone on Clinic, aimed at an early 2012 launch. current legal position and a photograph, (headshot) preferably in a jpg file of, at least, 350 d.p.i., with behalf of the Rhode Island Coalition for So, that’s five columns for the price their article submission. the Homeless, Gretchen Bath from Rhode of one! I hope you enjoyed this message. Direct inquiries and send articles and author’s Island Legal Services, Rhode Island District It brought back old times. Good times. photographs for publication consideration to: Court Chief Judge Jeanne LaFazia and And, one final point, happy holidays to Rhode Island Bar Journal Editor Frederick D. Massie Rhode Island Family Court Magistrate you and yours. Here’s hoping that 2012 email: fmassie @ribar.com telephone: 40 1-421-5740 Angela Paulhus, among many others, is a great one for all of us! O volunteered their time and energies to Material published in the Rhode Island Bar Journal remains the property of the Journal , and the author these veterans during that weekend. consents to the rights of the Rhode Island Bar Journal to copyright the work.
4 Novembe r/December 2011 Rhode Island Bar Journal Criminal Consequences of Sending False Information on Social Media
If you used a computer in Rhode Island during 11-52-7(b) for “transmitting false data,” specifi - the last 20 years, chances are you’re a criminal cally false data relating to his chief, “with the because Rhode Island’s computer crimes law – knowledge that it was false.” Section 11-52-7(b) Section 11-52-7(b) of the Rhode Island General states that: Laws – makes it a crime to transmit untruthful Whoever intentionally or knowingly: or exaggerated statements. 1) makes a transmission of false data; or Specifically, the use of a computer to know - 2) makes, presents or uses or causes to be ingly transmit any false information is charge - made, presented or used any data for any able as a criminal offense. Knowingly posting a other purpose with knowledge of its falsity, lie on Facebook, or any other social media, is a shall be guilty of a misdemeanor and shall crime in Rhode Island punishable by up to one be subject to the penalties set forth in § 11- 2 John R. Grasso, Esq. year in prison. Emailing information you know 52-5 . Law Office of John R. not be true is a crime in Rhode Island. Sending “Data,” as used within the statute, is further Grasso, Inc. a knowingly false text message is unlawful. defined as: Section 11-52-7(b) makes what are everyday …any representation of information, knowl - occurrences misdemeanor crimes. edge, facts, concepts, or instructions which Would the police investigate and charge a are being prepared or have been prepared person with lying on Facebook? Would the and are intended to be entered, processed, police issue subpoenas, secure search warrants, or stored, are being entered, processed, or and use special technology to track down a liar stored or have been entered, processed, or on Facebook? Would the State charge that liar? stored in a computer, computer system, or Would the court convict and sentence him? If computer network .3 the suspect was a police officer, and he purpose - While individuals often do not conduct ly created a Facebook page identifying the themselves in a socially acceptable manner, Facebook profile as that of his police chief, the criminal prosecution is not always warranted .4 answer to every one of these questions is yes. In this case, by criminally charging the police Even if the suspect published facts on the alleged officer with “transmitting false data,” the State Brandon Fontaine user’s profile so laughable that every person violated his First Amendment freedom of Roger Williams University who saw the profile knew it was a joke, the expression because the statute is unconstitution - School of Law 3L & Law State of Rhode Island would hunt him down, ally: 1) overbroad; 2) vague; 3) content-based; Review Articles Editor arrest, prosecute, and sentence him. This actual - and, at the end of the day, the alleged wrongdo - ly happened in one recent Rhode Island case er’s publication is nothing more than a parody. charged under the statute. Is it really criminal conduct to create a paro - Overbreadth dy profile on Facebook, a popular “The overbreadth doctrine arises when a social networking website, where the statutory enactment is so broad in its sweep If you used a computer in suspected wrongdoer intentionally mis - that it is capable of reaching constitutionally Rhode Island during the spelled his chief’s first and last name, protected conduct. The overbreadth doctrine listed fictitious interests to include generally applies in the context of First Amend- last 20 years, chances are “Haiti, SpongeBob SquarePants, ment freedoms and is intended to prevent the you’re a criminal because Milking Cows, Quilting, Sewing, imposition of criminal penalties for the exercise Music, Police officers, and Reggae,” so of one’s constitutional rights.” 5 Section 11-52- Rhode Island’s computer that it was clear from the reactions of 7(b) is substantially overbroad because it crimi - crimes law makes it a crime his friends that the profile was a joke? 1 nalizes speech protected by the First Amendment Yes. Following his arrest, the officer and Article I, Section 21 of the Rhode Island to transmit untruthful or was charged under the Computer Constitution, which ensures that “no law abridg - exaggerated statements. Crimes chapter of the Rhode Island ing the freedom of speech shall be enacted.” General Laws with violating section Statutory challenges on overbreadth grounds
Rhode Island Bar Journal Novembe r/December 2011 5 are unique in that the defendant is not nor does it require that anyone receiving example, entering an Internet chatroom required to hold standing in order to the data actually mistakenly believe it to and stating, “The sky is purple,” is attack the statute .6 Therefore, even if a be true. In fact, to the contrary, everyone undoubtedly a crime under a literal read - court finds that a particular defendant’s reading it could clearly understand its ing of the statute, but it is fair to presume speech is not protected by the First falsity, but it would still be a crime. that the offender would be safe from Amendment, he is still able to challenge While section 11-52-7(b) punishes fal - prosecution. However, the fact that the section 11-52-7(b) on overbreadth sity, “the First Amendment recognizes no State would never actually punish the grounds. The rationale is that “the possi - such thing as a ‘false’ idea .”10 The fact conduct does not matter in overbreadth ble harm to society in permitting some that hyperbole, white lies, sarcasm, humor, analysis. As the United States Supreme unprotected speech to go unpunished is and exaggeration (all of which are pro - Court has made clear, “We would not outweighed by the possibility that pro - tected forms of speech) are all criminalized uphold an unconstitutional statute merely tected speech of others may be muted… under section 11-52-7(b) demonstrates because the Government promised to use because of the possible inhibitory effects exactly why it is so substantially over - it responsibly.…The First Amendment of overly broad statutes.” 7 broad. To make matters worse, consider protects against the Government; it does There exists no basis on which the that many of the cellular phones on the not leave us at the mercy of noblesse restrictions set forth in section 11-52-7(b) market today would easily satisfy the oblige .” 12 can be justified, as the statute is substan - statutory definition of a “computer,” 11 The serious concern that section tially overbroad on its face. To determine which could have the profound effect of 11-52-7(b) evokes becomes even greater whether the statute reaches too far, “the criminalizing every half-truth or false - when the speech in question involves first step in overbreadth analysis is to con - hood ever transmitted, perhaps in conver - issues at the heart of public concern, such strue the challenged statute.” 8 A simple sation and almost definitely by text mes - as those of political, social, or religious reading of the statute is all that is required sage, when sent through a cell phone. value. Exaggerated statements, satirical to imagine the infinite scenarios of In effect, every Rhode Island resident works, or parodies based on political, expressive speech that section 11-52-7(b) who has ever used a computer has likely social, or religious figures or issues could criminalizes. committed a misdemeanor offense under all be classified as illegal conduct under The statute encompasses a vast the overly broad language of this statute. section 11-52-7(b) if they contained any amount of protected speech because it Of course, this is not to say that the false information, even though the United provides no limitation to its scope .9 For State is actually going to begin prosecut - States Supreme Court has continually example, it does not require anyone to be ing every untrue statement that the State’s asserted that these are all protected forms harmed by the transmission of false data, citizens transmit using computers. For of speech. 13 This presents serious consti -
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6 Novembe r/December 2011 Rhode Island Bar Journal tutional concerns because “the threat of of the interview onto the Hustler website overbreadth of section 11-52-7(b)(2). In enforcement of an overbroad law may would violate section 11-52-7(b). How- its broadest sense, the following would deter or ‘chill’ constitutionally protected ever, the United States Supreme Court has qualify as data: “any representation of… speech—especially when the overbroad already held that the Hustler interview is knowledge, facts [or] concepts… which statute imposes criminal sanctions.” 14 constitutionally protected from regulation. are being prepared… and are intended to “[E]ven minor punishments can chill Therefore, the fact that Hustler’s protect - be entered… or stored in a computer.” 17 protected speech.” 15 ed speech would be illegal under section Inserting that definition of “data” into For a concrete illustration of how this 11-52-7(b) proves the statute is overly section 11-52-7(b)(2) (in place of the word would work, consider the well-known broad and inhibits protected speech. itself) demonstrates just how disturbingly First Amendment case of Hustler Placing criminal penalties on that conduct, overbroad it truly is. Essentially, when Magazine v. Falwell , 485 U.S. 46 (1988). including up to one year in prison or a one knowingly prepares inaccurate facts The Hustler parody, consisting of a crude $500 fine, could substantially chill the and intends to enter them into their own fake interview with Pastor Jerry Falwell, free expression of constitutionally pro - personal computer, a crime has been clearly stated false information portray - tected speech over the Internet. committed, even before the facts are ing Falwell and his mother as drunk and As overbroad as section 11-52-7(b)(1) actually entered or stored. Therefore, immoral, even though it was clear to is, section 11-52-7(b)(2) is far worse. while section 11-52-7(b)(1) criminalizes most readers that the interview was fake. Section 11-52-7(b)(2) imposes criminal “the sky is purple” once it is transmitted The Court held that Hustler’s fake inter - liability when one “knowingly… makes, over a network, section 11-52-7(b)(2) view was protected speech under the presents or uses or causes to be made, criminalizes the inaccurate fact the First Amendment, and Hustler was not presented or used any data for any other moment the first letter is typed on the liable for any harm it may have caused. purpose with knowledge of its falsity.” 16 computer screen, or sooner, with no Now, take the exact same facts in Thus, in its broadest form, section 11-52- intent on ever sharing the message with Hustler , but instead of printing the parody 7(b)(2) proscribes conduct where false others. This raises not only First interview in a magazine, Hustler uploads data is merely made on a computer for Amendment concerns with the statute, the interview to their website from a any purpose (even private use only), but also concerns with the constitutional computer in Rhode Island. Because the without that data ever being transmitted right to privacy. fake interview contains false data – to anyone else. Although it does not explain all of namely that Jerry Falwell drinks alcohol The statutory definition for “data” is the statutory defects, the history of this to excess and had an incestuous relation - exceptionally broad in its own right and, statute may bring some understanding as ship with his mother – the transmission thus, contributes substantially to the to why the General Assembly drafted it
Rhode Island Bar Journal Novembe r/December 2011 7 with such undeniably overbroad language. Section 11-52-7 was enacted in 1989 and has not been amended since. The defini - tion of “data” in section 11-52-1 has not been amended since 1989 either. These facts are significant because the World Wide Web, which made the Internet easi - Florida ly accessible to the general public for the first time, was not launched until August Legal Assistance Statewide 1991. In 1989, lawmakers also probably never imagined that telephones would one day qualify as “computers” under the statute’s definition. There is no doubt that technological advancements over Edmund C. Sciarretta, Esq. the past twenty years have significantly Suffolk Law 1970 expanded the conduct covered by the statute, well beyond the original legisla - tive intent. By criminalizing any false statement PERSONAL INJURY any person makes while using the Internet, the General Assembly has made virtually WORKERS’ COMPENSATION every Rhode Island resident potentially guilty of a misdemeanor. The statute’s • REAL ESTATE CLOSINGS TITLE INSURANCE main problem is that it puts no limitation PROBATE ADMINISTRATION on what “false statements” amount to a criminal offense. As it stands, it is clearly PROBATE LITIGATION substantially overbroad.
MARITAL & FAMILY LAW • GUARDIANSHIP Vagueness and Arbitrary Enforcement The attack on section 11-52-7(b) does • BANKRUPTCY CRIMINAL LAW not end with overbreadth. This law is unconstitutional because it is vague and susceptible to arbitrary enforcement. “The void-for-vagueness doctrine requires Sciarretta & Mannino that a penal statute define the criminal Attorneys at Law offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner 7301A West Palmetto Park Road • Suite 305C that does not encourage arbitrary and Boca Raton, Florida 33433 discriminatory enforcement.” 18 “Nobody questions the fundamental principle • 1-800 -749-9928 561/338-9900 which says that the state may not hold an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’” 19 “This constitutional mandate is founded upon our system’s concept of fairness.” 20 The vagueness inherent in section 11-52-7(b) violates this concept of fairness and Off ice Spac e Avai lable forms a valid basis for declaring this statute unconstitutional. Within Existing Law Office Section 11-52-7(b) fails to put the AMENITIES CONTACT public on proper notice of what offenses it prohibits. Recepti on ist • Con feren ce Room s Jim G old man Section 11-52-7(b) is unconstitutional Copi er • Park ing 51 Jeffer son Bou levar d because it fails to adequately put the pub - Se cre tar ial S tati on s • F ili ng C abi ne ts War wic k, Rho de Isl an d lic on notice of what conduct it proscribes. Grea t Lo cati on 401 -781 -4200, ex t. 11 “The standard employed to gauge whether a particular statutory term reasonably
8 Novembe r/December 2011 Rhode Island Bar Journal informs an individual of the criminality of his conduct is whether the disputed verbiage provides adequate warning to a person of ordinary intelligence that his Providence Valuation , LLC conduct is illegal by common understand - business appraisal and consulting ing and practice.” 21 It is not the responsi - bility of Rhode Island citizens to decipher the legislative intent of the General Assembly. The literal meaning of section 11-52-7(b) is that lying or misstating facts business valuations on the Internet is a misdemeanor crime, with no exceptions. There is no other lost profits studies way to construe this statute based on its plain language – it clearly criminalizes fractional interest any form of untruth spoken while using a computer. discount analyses The Internet contains billions of users and millions of websites. Millions of peo - asset recovery ple use Facebook, and thousands of ficti - tious and joke profiles are created on the intangible asset site every day. The public is constantly told not to believe what they read on the valuation Internet because it may be filled with lies John “Jay” Candon and inaccuracies. Therefore, there is no lost earnings studies CPA, ABV, ASA, CFE, CFF way for Rhode Island residents to be on notice that the “transmission of false 1750 Ministerial Rd business acquisitions data” is a misdemeanor when it occurs South Kingstown, RI 02879 within the state, especially when most and sales 401.714.4099 likely encounter false information on the Internet every day. Even if the public was www.providencevaluation.com on notice, they would be continually left to question whether the criminalization Providence Valuation is dedicated – 20 years business valuation experience of false information when using a com - puter really stretches as far as it sounds, to providing the highest quality of – Recognized as an expert by the U.S. Tax and where exactly it ends, such that the objective and confidential services Court, Federal Courts and State Courts free expression of ideas would be sub - to our clients, small and medium – Certified Public Accountant stantially chilled. Additionally, “in testing whether a sized enterprises and high net – Accredited in Business Valuation statutory term provides a defendant with worth individuals in the greater – Accredited Senior Appraiser fair warning of what the state forbids, Rhode Island area, in the most we look to its common law meaning, its – Former Chief Financial Officer of a statutory history, and prior judicial inter - economical way. commercial bank pretations.” 22 Unfortunately, none of these factors provide much assistance in interpreting section 11-52-7(b). The com - mon law provides little guidance on the newly-emerging issues of computers and the Internet and their associated terminol - ogy. In addition, the statute has never been mentioned in any prior Rhode Island judicial opinion, nor does any other state have a similar statute with which to draw analogies. It is telling in itself that no other state broadly bans all transmissions of false data/information. 109 Larchmont Road Warwick, Rhode Island 02886 Tel: 4 01- 439-9023
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10 Novembe r/December 2011 Rhode Island Bar Journal Rhode Island National Guard General Praises Bar’s Volunteer US Armed Forces Legal Service Project
preparation; veterans (including those receiving disability); and family members and surviving family of the aforementioned groups. There are no income limitations for legal assistance. How- ever, requests for help are primarily received from personnel whose income would qualify for pro bono or reduced fee representation. Requests are received from all branches of the military including the Rhode Island National Guard and the United States Army, Navy, Marines, Air Force, Coast Guard, and war veterans. Participating volunteer attorneys are recruited through: all-member email appeals; Rhode Island Bar Journal articles with corresponding (l-r): Bar President William J. Delaney; Lieutenant Colonel Vivian Caruolo; Bar Public Services sign-up invitations; through the Bar’s website’s Director Susan Fontaine; Past Bar President Victoria M. Almeida, and Major General Kevin Members Only section; during the Bar’s Annual R. McBride. Meeting; and through related Bar Continuing Legal Education (CLE) workshops and program - ming. Many participating volunteer attorneys Major General Kevin R. McBride, Adjutant are affiliated with the military either through General and Commanding General of the their previous service or that of a family Rhode Island National Guard and Lieutenant member. Colonel Vivian Caruolo, Staff Judge Advocate Coordinated with the Attorney-Advisor at of the Rhode Island National Guard came to the Office of the Staff Judge Advocate, volun - the Rhode Island Bar Association’s September teer attorneys directly represent military person - House of Delegates meeting to thank the Bar nel, accepting civil law cases including family for its excellent volunteer member and Bar staff law, probate issues, landlord/tenant, real estate, efforts on behalf of those serving in the military contracts, consumer, bankruptcy, collections, and their families. employment, immigration/naturalization, and The Rhode Island Bar Association’s unique income tax. Direct referrals are received, and United States Armed Forces Legal Services cases are also referred through, the Judge Project (Project), initiated Advocate General, recruiting by Past Rhode Island Bar offices, the local United States Resolving legal issues before Association President Victoria Veterans Administration, the M. Almeida, launched in late heading into harm’s way Rhode Island Veterans, Home, 2009, and directly administered provides soldiers with peace Rhode Island social service by the Rhode Island Bar’s of mind so they can focus agencies, and the Rhode Island Public Services Department is on what they have to do to Homeless Legal Clinic. specifically designed to provide come home safe. Similarly, With the first case placed a wide range of civil law legal on August 18, 2009, the the services you provide to services and assistance to those Project currently has over serving in the military and their our troops at home lifts a 80 participating volunteer families. Qualifying individuals burden…Keep doing what attorneys, and over 200 cases include: active and reserve you are doing. It means so placed in areas including: military personnel; reserve much to us. veterans’ benefits; consumer component members undergo - CAPTAIN MICHAEL P. J OLIN issues; family law; probate; ing pre-mobilization legal real estate; and other legal
Rhode Island Bar Journal Novembe r/December 2011 11 issues. The Project’s volunteer lawyers the Foundation of the American College serve members of the: US Army; Rhode of Trial Lawyers. LAW OFFICE OF Island National Guard: US Navy: US Bar members interested in learning Marines; US Air Force; US Coast Guard; more about or volunteering for the Bar’s H ENRY V. BOEZI III, P.C. as well as war veterans. United States Armed Forces Legal The Project does not have separate Services Project may contact Public U.S. TRADEMARK SEARCHES funding and is administered through the Services Director Susan Fontaine, by AND REGISTRATIONS Bar’s Lawyer Referral Service, supported email: sfontaine @ribar.com, or telephone: by a generous award in April 2011 from 401-421-5740. O U.S. COPYRIGHT SEARCHES AND REGISTRATIONS
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12 Novembe r/December 2011 Rhode Island Bar Journal Preserving Tax Incentives for Charitable Giving
Remember the National Commission on Fiscal table deduction under fire again. Responsibility and Reform, otherwise known Let’s first look at the commission’s particular as the President’s deficit commission? One of proposal of eliminating the charitable deduction the many proposals in its December, 2010 final and replacing it with a non-refundable 12% tax report was to eliminate the charitable deduction credit available for all taxpayers for giving above and replace it with a 12-percent credit, available 2% of their adjusted gross income. Proponents only for contributions beyond 2 percent of a of this reform primarily argue that applying the taxpayer’s adjusted gross income. Although the same credit percentage to all eligible taxpayers commission’s report was not ultimately adopted, will treat taxpayers more equally than our cur - the charitable deduction has certainly come under rent system of itemized charitable deductions. heightened scrutiny ever since (along with basi - They may have a point. First, high earners are James S. Sanzi, Esq. cally the entire tax code, given the economic more likely to itemize, and, obviously, one must Rhode Island Foundation times). Make no mistake, it is an understatement itemize in order to take advantage of our current Senior Development Officer to say that times are tough and, as many of our system of itemized deductions. Second, higher political leaders opine, virtually nothing should earners currently get a bigger tax deduction for be off the table. However, during a time when their charitable contributions. A donor in the many families and charitable causes are as vul - top federal tax bracket can get a 35% deduc - nerable as ever, to what extent should this long- tion for their gifts (35% being the top federal standing financial incentive to give to charity income tax rate). Therefore, the after deduction be under such scrutiny? These issues are ripe cost of a donor’s $100 gift would be $65, …during a time for discussion since proposals to reform the assuming the donor itemizes. Compare this to when many fami - charitable deduction have gained momentum a less wealthy donor in the 25% federal income in the White House and on Capitol Hill. This tax bracket whose $100 gift effectively costs lies and charitable article highlights some of the pros and cons of $75 after the deduction. An even lower earning causes are as vul - the debate. donor who gives the same $100 might have an President Obama has criticized the current after deduction cost as high as $90. Fair? nerable as ever, to charitable deduction as favoring the wealthy, Maybe not if the wealthy and not so wealthy what extent while providing no benefit to the typical mid - make the same size gift. However, given that dle-class family that doesn’t itemize. He has larger gifts are typically made by wealthier should this long- repeatedly argued for a cap on itemized deduc - donors, maybe the current system best encour - standing financial tions. In fact, at the time of this writing, the ages the potential for their larger gifts. Let the President’s recently-proposed jobs creation plan debate wage on. incentive to give to intends to finance the measure, in part, by Now, what about the commission’s proposal charity be under reducing the tax benefit wealthier taxpayers that the credit would only be available for receive from their itemized deductions, includ - amounts beyond 2% of a taxpayer’s adjusted such scrutiny? ing the charitable deduction, to 28 percent. gross income (AGI) ? Let’s look at one measure Furthermore, in Congress as recently as July, a of giving in Rhode Island to assess this. Tax bi-partisan group of Senators (remember the returns from 2007 show that, on average, self-styled “Gang of Six”?) called for reform of Rhode Islanders contribute 1.54% of their AGI the charitable deduction consistent with the rec - to charity (By the way, this measure puts our ommendations made by the deficit commission. state 46th in the nation in charitable giving.). You may also recall that, although ultimately Therefore, under the commission’s proposal, spared, the charitable deduction was again on the average taxpayer in Rhode Island wouldn’t the chopping block during the recent debt ceil - even get to claim the tax credit. In fact, using ing negotiations. When the new 12 member this Internal Revenue Service (IRS) data, the purported “super” committee meets over the average taxpayers from 17 other states would next couple months to explore another $1.5 tril - also not be able to claim the credit (Illinois, lion in cuts, don’t be surprised to see the chari - Washington, Pennsylvania, Iowa, Massachusetts,
Rhode Island Bar Journal Novembe r/December 2011 13 Louisiana, Ohio, Wisconsin, New Jersey, Nevada, New Mexico, Alaska, Vermont, Maine, New Hampshire, North Dakota, and West Virginia). Perhaps this proposal simply deprives too many people (albeit, BANKRUPTCY many of them smaller givers) from receiv - ing any tax benefit for their charitable giving. Maybe the commission’s proposal Revens, Revens & S t. Pierre isn’t fair on these grounds? Furthermore, the commission’s proposal is non-refund - able, meaning that only taxpayers who James E. Kelleher owed income tax could claim it, again eliminating the tax benefit for charitable giving by all people who get a tax refund. 946 Ce nt erville Road For these reasons, many argue the com - mission’s proposal and variations simply Warwick, RI 02886 do not provide enough economic incen - tive to enough tax payers to encourage (4 01) 822 -2900 telephone their charitable giving. This leads us to the biggest question, (4 01) 82 6-3245 facsimile the so-called “elephant in the room.” Are jamesk @rrsplaw.com email tax incentives for charitable giving effec - tive in motivating giving in the first place? Aren’t individual values and belief systems the true motivators for giving, Attorney to Attorney Consultations/Referrals especially in tough times? As a charitable fundraiser, I can tell you that the statis - tics, survey results, and literature offer a mixed bag as to what actually motivates giving. It should come as no surprise that the motivations are as diverse as the donors themselves. From my experience, most donors are motivated (or inspired) by something when they choose to give (what motivates them differs from person to person) and, once motivated, they gen - Is your firm’s insurance program erally want to know how to give in the out of order? most cost effective manner (requiring an analysis of the tax and other financial benefits). Also, tax incentives can certainly Verdix™ offers comprehensive legal professional liability coverage with influence the size of a particular charita - competitive pricing and financially secure carriers. ble gift. For example, someone interested • Financial stability – Coverage through “A” (Excellent) rated carriers in a larger tax deduction may choose to • Highly experienced underwriting and risk control resources make a larger gift, at least in part, for the greater deduction. Therefore, charitable • Expanded coverage giving tax breaks may not always moti - vate donors, but they usually matter to For more information or to get a no-obligation quote, them…and certainly motivate some. please contact Patricia Bethoney at 617 235 6144 or Overall, I like the itemized charitable email [email protected]. www.verdix.net. deduction as we have it (not that it can’t be improved). It helps many donors, but it especially attempts to motivate wealthier donors by decreasing their post-deduction gift cost the most. Although all philan - thropy is valued and important, wealthier donors have the capacity to make the large gifts that are especially hard to come by when budgets are tight and strapped governments turn to the non- profit sector to fill the gaps they cannot close. Furthermore, there have been some smart developments in the field of giving
14 Novembe r/December 2011 Rhode Island Bar Journal recently that help to resolve some of the inequities against those taxpayers who do not itemize. For example, the Charitable IRA Rollover allows donors age 70½ and older to distribute up to $100,000 directly from their IRA to public charities with - WORKERS’ COMPENSATION out having to count the distributions as taxable income. For taxpayers who do not itemize, taking advantage of this Revens, Revens & S t. Pierre would finally give them some financial benefit for contributing to charity. At the time of this writing, bills are pending in Michael A. St. Pierre both houses of Congress to extend and expand the Charitable IRA Rollover so more potential donors can take advan - 946 Ce nt erville Road tage of it. As unemployment remains high and Warwick, RI 02886 confidence in a quick recovery low, gov - ernments will justifiably tighten their collective belts and more people will (4 01) 822 -2900 telephone inevitably turn to charities for help (In (4 01) 82 6-3245 facsimile fact, this has been happening for some mikesp @rrspla w.com email time now). These people, our communi - ties, and our economic base need a vibrant and effective charitable sector. Certainly, there are many varieties of legal and tax reform that can still achieve the primary Attorney to Attorney Consultations/Referrals goal of maintaining some kind of incen - tive for charitable giving. Policies (smart tax breaks or otherwise) that help moti - vate private individuals to give to impor - tant causes during difficult times are not just helpful to people in need. They will ultimately help governments save money by leveraging the transformative power of philanthropy. O Two Mediators, How to Help Two Viewpoints – Clients and Colleagues Find for the best resolution. >>>> <<<< YOU Partners in Mediation offers a One easy and economical way to help clients lawyer/therapist team approach, combining Nancy Johnson Gallagher, LICSW and colleagues connect with you is through the experience of family law attorney and Jeremy W. Howe, JD the Bar’s online Attorney Directory . To view your current listing, go to the Bar’s website at Jeremy Howe with the therapy experience www.ribar.com . On the left side of the Home of Nancy Johnson Gallagher. page, double click on the blue and white Attorney Directory icon, type in your name FAMILY & DIVORCE MEDIATION and click on Search , then click on View ELDERLAW & PROBATE MEDIATION Details . Please ensure all your contact FAMILY COURT ARBITRATION information is correct including your practice Call 401.841.5700 name or business, postal, email and website SUPERIOR COURT MEDIATION & ARBITRATION or visit us online at addresses, and telephone and fax numbers. PENSION MEDIATION And, if you don’t have your photograph, please CounselFirst.com send one to the Bar for posting. Contact Bar Communications Program Coordinator PARTNERS IN MEDIATION Kathleen Bridge at: [email protected] IN NEWPORT, RI: IN NORTH KINGSTOWN, RI: or 401-421-5740 . 55 Memorial Boulevard, #5 1294 Tower Hill Road
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16 Novembe r/December 2011 Rhode Island Bar Journal The New Scarlet Letter: Are We Taking The Sex Offender Label Too Far?
Every reasonable person would agree that such in murdered in 1994 in New Jersey. 4 sex crimes as child molestation and rape are In 2006, President Bush signed the Adam deplorable, and that those who commit such Walsh Act (AWA) into law, named after the son crimes should be punished. Sadly, our practical of America’s Most Wanted Host John Walsh .5 judgment as a society has become clouded due Instead of once again tightening the require - to the emotional reaction to sex offenders. ments of the Jacob Wetterling Act, the AWA States, as well as the federal government, are replaces the system entirely. In addition to quick to enact incredibly harsh, costly and increased penalties for sex offenses charged in mostly ineffective pieces of legislation in an federal court, the AWA required all states to attempt to assure the public that the govern - implement the new registration and community ment is not soft on sex offenders. notification system or risk losing 10% of feder - The following provides a brief overview of al Byrne Grant money. Katherine Godin, Esq. the history of sex offender registration and Since that time, the federal government has The Law Office of Katherine community notification, as well as a short sum - been granting states extensions to comply, and Godin, Inc. mary of Rhode Island’s current system, before the Department of Justice has been collaborat - discussing proposed legislation to implement ing with local prosecuting agencies and law the federal Adam Walsh Act (AWA) . This article enforcement to resolve some local government’s also highlights the major concerns with enact - concerns with implementing the act. Bills have ing sex offender registration and community been introduced to the Rhode Island House and notification legislation in general and, more Senate Judiciary Committees for the last several …the proposed specifically, the implications of enacting the years but, each year, the bills have failed to AWA , not just for the individual sex offender, become state law for several good reasons .6 implementation of but also for the general public. the federal Adam Rhode Island’s Sex Offender Registration History and Community Notification Act Walsh Act is not Stories about pedophiles lurking in the bush - Presently, Rhode Island’s Sex Offender only costly and es and attacking children have led to increasing - Registration and Community Notification Act ly restrictive requirements on those deemed sex (SORCNA) classifies an offender after consider - unconstitutional, offenders. Nationwide sex offender registration ing over a dozen factors including: the facts of but also damaging was enacted in the early 1990s to keep track of the offense(s); static risk assessment test(s); the and inform citizens about the risk sex offenders offender’s prior criminal history; his or her and unnecessary pose to the community. Since then, various states employment, educational and social stability; for all parties and the Federal Government have imposed and whether the offender participated in sex increasingly severe restrictions on sex offenders offender treatment .7 involved. in the hope that restricting almost every aspect The Rhode Island Parole Board Sexual of an offender’s life will prevent the offender Offender Community Notification Unit from re-offending. (SOCNU) interviews the offender without his or In 1994, the Jacob Wetterling Act went into her attorney present , performs an assessment of effect, which required each state to create and the offender’s risk assessment and classifies the maintain a database of all sex offenders living offender as a Level 1, 2 or 3. The offender then in the state .1 The legislation was named after receives notification of his level and, if the level an eleven year-old boy who went missing in is a 2 or 3, his or her opportunity to appeal the Minnesota in 1989 and remains missing to this classification in Superior Court .8 day. 2 Two years later, Megan’s Law was enacted, At the hearing, the State must present a requiring the states to not only maintain their prima facie case that the SOCNU used a valid databases (registries), but also notify the com - risk assessment tool and reasonable means to munity of the sex offenders’ existence .3 This collect the information used in the risk assess - piece of legislation was named after Megan ment .9 Once the State has presented its case, the Nicole Kanka, a seven year old who was raped Court must affirm, unless the offender proves,
Rhode Island Bar Journal Novembe r/December 2011 17 by a preponderance of the evidence, that “sexually violent predator” or is consid - As an example, someone convicted of the SOCNU did not comply with statuto - ered a recidivist or “aggravated crime third-degree sexual assault (i.e., statutory ry law or its own guidelines to classify offender”, in which case the offender will rape) would be classified as a Tier III the offender .10 be subjected to lifetime registration .13 offender, the same as someone convicted The current registration and commu - Any sex offender who: 1) fails to reg - of first-degree child molestation or first- nity notification law has been challenged ister; 2) fails to verify his/her address; degree sexual assault (i.e., rape) .16 That on constitutional grounds. In State v. 3) fails to notify the police of a change in would mean that an 18-year old who has Germane , the Rhode Island Supreme address or additional residence; or 4) fails sex with his 15-year old girlfriend will be Court ruled that, as applied, the law did to provide accurate information could be branded a sex offender for the rest of his not deprive that particular offender of punished by up to 10 years imprisonment life, and will be seen as posing the same due process .11 However, the Court went and/or up to a $10,000 fine .14 threat to the community as someone who on to explain: forces a woman to have sex or molests a While the present appellant was not Proposed Legislation to Implement child. deprived of his constitutional right to the Adam Walsh Act Moreover, under the AWA , factors procedural due process since he was Megan’s Law was enacted in 1996 to such as age, mental health issues, psycho - in fact permitted to present a multifac - warn/inform citizens about the risk sex logical profiles (such as pedophilia) and eted case in the Superior Court, it is offenders pose to the community. The AWA participation in sex offender treatment, nonetheless our opinion that, under sadly takes affirmative steps to undermine which have all been suggested to have an different circumstances, the discretion the effectiveness of sex offender registra - affect on an offender’s risk of recidivism, that § 11-37.1-15(a)(2) accords to the tion and community notification. Most will be irrelevant to an offender’s classifi - reviewing court could result in importantly, the AWA makes it less likely cation level .17 infringement of a sexual offender’s to accurately predict sex offense recidivism. The AWA would also eliminate the ten constitutional rights .12 Under this year’s State Senate and year, once per year registration require - Generally, all registered sex offenders House bills, the proposed implementation ment for most sex offenders and would must register each year with their local of the AWA would eradicate the current replace it with the following registration police department. This duty will contin - classification and registration system for requirements: ue for 10 years following the completion sex offenders and would replace the sys - Tier I – 15 years, once ever year of the offender’s sentence. Additionally, tem with a classification process in which Tier II – 25 years, once every 6 months those required to register must do so sex offenders are classified based solely Tier III – life, once every 3 months 18 once every three months for the first two by the offense of which the offender is years unless the offender is found to be a convicted .15
18 Novembe r/December 2011 Rhode Island Bar Journal The reality of sex offenders, sex sex offense .22 Constitutional, fiscal and societal offenses and sex offender registration The public perception of the typical defects of the AWA in the U.S. sex offender is the scary man lurking in 1. The AWA is unconstitutional on The reality of sex offenders and their the bushes or luring children into cars several grounds offenses has been drastically distorted in with candy. The reality is that 97% of Last summer, the Supreme Court of the media. Society has been frightened child sex abuse victims up to 5 years old Ohio 27 ruled that the AWA violated the with tales of sex offenders who are con - knew the offender (as a family member, separation of powers doctrine. The Court stantly re-offending. Yet recidivism rates family friend) prior to the offense. For found that the executive branch was for sex offenders are far lower than those victims 6-11 years old, 95% knew unconstitutionally allowed to open final recidivism rates for non-sex offenders. the offender previously. For those 12-17 judgments of the Superior Court in order According to the most recent recidivism years old, the statistic is 90%. In general, to re-classify sex offenders .28 The same rates collected by the U.S. Department for sexual assault victims under 18 years problem will occur in this state. Under of Justice, 43% of sex offenders in state of age, 93% knew their offender before the proposed AWA , the executive branch prisons were re-arrested within three the incident .23 The same study also found will be allowed to vacate judgments from years of release from incarceration, com - that over 72% of adult victims knew the Superior Court and re-classify those pared to 69.5% of non-sex offenders. As their offender prior to the incident .24 sex offenders. Such tampering with final for re-convictions, sex offenders had a Up until now, sex offender registration orders of the court is unconstitutional 24.8% recidivism rate, whereas non-sex and community notification laws have and violates separation of powers. offenders came in at 48.9% .19 Some created significant negative implications The AWA would most certainly also researchers have found that recidivism for offenders. More stringent registration deprive offenders of their procedural due rates are actually higher for registered requirements, including longer registra - process rights to a meaningful hearing sex offenders than for unregistered sex tion periods, will lead to even more diffi - before being labeled a sex offender. An offenders .20 Others have found no statisti - culty finding employment, housing and essential element of one’s due process cally significant difference between the stable social connections, and will make rights is the opportunity to be heard “at recidivism rates for registered sex offend - it more likely that sex offenders will be a meaningful time and in a meaningful ers and unregistered sex offenders .21 harassed and/or assaulted .25 In some cases, manner.” 29 As noted previously, in 2009, More importantly, 95-96% of sex these excessively stringent registration the Rhode Island Supreme Court consid - offenders arrested have no prior sex requirements have encouraged sex offend - ered the current registration and commu - offense convictions. Therefore, there ers to re-offend because they are left with nity notification system in State v. seems to be no effective way to predict little to no incentive to rehabilitate .26 Germane .30 In their decision, our who, or when someone, will commit a Supreme Court found that sex offenders
Rhode Island Bar Journal Novembe r/December 2011 19 have a protected liberty interest in being ally-related kidnapping and a non-sex register, even if the triggering offense was classified, and noted in dicta that denying related kidnapping, as the current system from 30 or 40 years ago .37 Under the sex offenders the opportunity to challenge theoretically does, the inclusion of these retroactive registration, anyone currently their classification levels would deprive non-sex offenses constitutes an unconsti - incarcerated or on parole/probation who them of procedural due process .31 tutionally broad portion of the AWA . has previously been convicted of a sex There is also a question as to whether offense, even if the individual is currently the AWA would constitute a violation of 2. The Adam Walsh Act is being intro - under no obligation to register and is not offenders’ substantive due process rights. duced to prevent the loss of federal currently incarcerated for a sex offense, While courts have been hesitant to find a grant money, yet will be far more must be identified and classified as a sex substantive liberty or privacy interest in costly to implement offender .38 not being subjected to sex offender regis - During the House and Senate Judiciary The State would have to spend money tration and notification requirements ,32 Committee hearings, a major selling on: training employees to enforce and and they have not yet found the require - point to implement the AWA has been the maintain the new registration and com - ments to constitute an ex post facto law, 33 argument that implementing the legisla - munity notification system; installing and given the U.S. Supreme Court’s recent tion will prevent the loss of 10% of fed - maintaining the required electronic data - decision of Padilla v. Kentucky , in which eral Byrne Grant money. Arguments have base; additional prison space for all those the Court found that a criminal defendant also been made that the costs of imple - charged with failing to register; court and has a constitutional right to be advised of menting the legislation will be minimal. administrative costs involved with litigat - the immigration consequences of a con - Yet recent estimates have placed ing the constitutionality of the legislation; viction ,34 courts may find that the AWA Rhode Island Byrne Grant funds at as well as litigating failure to register requirements are so invasive, stringent and approximately $100,000 per year, with cases, law enforcement costs involved unnecessary that they violate an offend - the costs the costs estimated at $1,715,760 with stricter monitoring of all sex offend - er’s substantive due process rights and for the first year. 36 ers and, presumably, legislative costs constitute an ex post facto punishment. Under the AWA ’s provisions, the State’s involved with amending the unconstitu - The AWA also contains elements that executive branch would have to look into tional elements of the legislation. While are arguably overbroad. In the proposed the criminal history of every single person the State has suggested that the federal bills, kidnapping, with no sexual element, incarcerated at the Adult Correctional government would provide partial fund - as well as “failure to file factual statement Institution and Wyatt Detention Center, ing to help cover the costs of the required about an alien individual,” are listed as as well as every person convicted of a software, it has yet to provide a specific sex offenses triggering registration .35 With felony to determine whether he or she accounting of all of the projected costs. no way of differentiating between a sexu - qualifies as a sex offender required to Our current sex offender registration and community notification system is far from perfect, and there is certainly an unanswered question as to whether the IfIf yyouyourour cclientlient nneedseedsds aann system fulfills its intended purpose of eexpertxperrtt bubusinessusiness vvavaluation…aluuaaattion… preventing sexual re-offending. Yet, it is clear the proposed implementation of the ccallall iinn a realreal eexpert.xperrtt. AWA is not only costly and unconstitu - OverOver 22,500,55000 accurate,accurate, iindependentndependent andand defendabledefendable valuationsvaluations providedprovided sincesince tional, but is also damaging and unneces - thethe earlyearly 1980s.1980s. DecadesDecades ofof experienceexperience inin bothboth benchbench andand juryjury trials.trials. sary for all parties involved. Instead of more accurately informing the public of the risk each sex offender poses to the community, the AWA will unnecessarily LeoLeo J.J. DDeLisi,eLisi, Jr.,Jr., alarm, and scare, citizens for no reason. ASA,ASA, MMCBA,CBA, AABARBAR Hopefully, Rhode Island will continue to reject the proposed legislation and will one day start to focus more on educating AccreditedAccredited SeniorSenior AppraiserAppraiser the public about the reality of sex offend - MasterMaster CertifiedCertified BusinessBusiness AppraiserAppraiser ers than implementing unnecessary and AAccreditedccredited iinn BBusinessusiness AppraisalAppraisal ReviewReview harmful legislation. FFellow,ellow, AAmericanmerican CCollegeollege ooff ForensicForensic ExaminersExaminers ValuingValuing BusinessesBusinesses sincesince 19841984 ENDNOTES 1 See Tewksbury, Richard & Matthews Lees, PERCEPTIONS OF SEX OFFENDER REGISTRATION : COLLATERAL CONSEQUENCES AND COMMUNITY www.DeLisiAndGhee.comwww.DeLisiAndGhee.com EXPERIENCES , 26 Sociological Spectrum 309-334, 310 (2006). 2 42 U.S.C. § 16901. 3 Tewksbury & Lees (2006), supra , at 311. 989989 ReservoirReservovoir AAvAvenuevenue BUSINESSBUSINESS VVAVALUATIONSALUAATTIONS Cranston,Cr anston, RRII 0029102910 4 42 U.S.C. § 16901. 401.944.0900401.944.0900 AARERE AALLLL WWEE DDO.O. AALLLL DDAY.AAYY. 5 http://www.msnbc.msn.com/id/28257294/ns/ [email protected]@DeLisiAndGhee.com EVERYDAY.EVERYDAY.. us_news-crime_and_courts/t/police-killing-adam- walsh-solved/#
20 Novembe r/December 2011 Rhode Island Bar Journal 6 See H 8152 (R.I. 2010); S 2897 (R.I. 2010); H 26 See Tewksbury, Richard & Lees, Matthews, Court avoided a determination of whether 5129 (R.I. 2011); S 0833 (R.I. 2011); see also Katie PERCEPTIONS OF SEX OFFENDER REGISTRATION : Connecticut’s sex offender registration and com - Mulvaney, R.I. GETS EXTENSION ON COMPLYING COLLATERAL CONSEQUENCES AND COMMUNITY munity notification law violated substantive due WITH SEX OFFENDER LAW , P ROVIDENCE JOURNAL EXPERIENCES , 26 Sociological Spectrum 309-334 process). (September 22, 2009) (discussing the extensions (2006) (Stringent sex offender laws have been 33 See Smith v. Doe , 538 U.S. 84 (2003) (in which and the problems involved with implementation). found to actually create an incentive not to con - the U.S. Supreme Court upheld Alaska’s law 7 Rhode Island Parole Board Sex Offender form because of the social stigma and collateral against an ex post facto challenge in a divided Community Notification Unit, SEXUAL OFFENDER consequences of being labeled a sex offender). decision). COMMUNITY NOTIFICATION GUIDELINES , Appendix 27 It should be noted that Ohio was the first state 34 Padilla v. Kentucky , 130 S. Ct. 1473 (2010). Addendum 1 (2010). to implement the AWA. 35 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 8 Id . at 9-13; R.I. Gen. Laws § 11-37.1-14. 28 State v. Bodyke , 933 N.E.2d 753 (Ohio 2010). 36 See Justice Policy Institute, WHAT WILL IT COST 9 R.I. Gen. Laws § 11-37.1-16. 29 Mathews v. Eldridge , 424 U.S. 319, 333 (1976) STATES TO COMPLY WITH THE SEX OFFENDER 10 Id . (quoting Armstrong v. Manzo , 380 U.S. 545, 552 REGISTRATION AND NOTIFICATION ACT ?, available 11 State v. Germane , 971 A.2d 555, 579 (R.I. (1965). at http://www.justicepolicy.o-rg/images/upload/08- 2009). 30 Germane , 971 A.2d at 578. 08_FAC_SORNACosts_JJ.pdf 12 Id . at 579-80. 31 Id . at 580. 37 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 13 R.I. Gen. Laws § 11-37.1-4. 32 See Connecticut Dept. of Public Safety v. Doe , 38 Id . O 14 R.I. Gen. Laws § 11-37.1-10. 538 U.S. 1, 7-8 (2003) (in which the U.S. Supreme 15 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 16 Id . 17 Id . 18 Id . 19 See U.S. Dept. of Justice, Bureau of Justice MARK A. PFEIFFER Statistics, “Prisoner Recidivism,” available at http://bjs.ojp.usdoj.gov/index.cfm?ty=datool&surl= Alternative Dispute Resolution Services -/recidivism/index.cfm; Matthew R. Durose, www.mapfeiffer.com Patrick A. Langan, Erica L. Schmitt, RECIDIVISM OF SEX OFFENDERS RELEASED FROM PRISON IN 1994 , BJS No. NCJ 198281 (Nov. 2003). Bringing over three decades of experience as a Superior Court 20 See Prescott, JJ & Jonah Rockoff, DO SEX judge, financial services industry regulator, senior banking officer, OFFENDER REGISTRATION AND NOTIFICATION LAWS and private attorney to facilitate resolution of legal disputes. AFFECT CRIMINAL BEHAVIOR ? (2008), available at http://www.law.virginia.edu/pdf/olin/0708/prescott. pdf ARBITRATION MEDIATION PRIVATE TRIAL 21 See Adkins, G., D. Huff, and P. Stageberg, THE IOWA SEX OFFENDER REGISTRY AND RECIDIVISM (4 01)78 7-6995 / [email protected] / 86 State Street, Bristol, R.I. 02809 (2000); Schram, Donna and Cheryl D. Milloy, COMMUNITY NOTIFICATION : A S TUDY OF OFFENDER CHARACTERISTICS AND RECIDIVISM (1995). 22 See Sandler, Jeffrey et al., DOES A WATCHED POT BOIL ?: A T IME -S ERIES ANALYSIS OF NEW YORK STATE ’S SEX OFFENDER REGISTRATION AND NOTIFICATION LAW 14 Psychol. Pub. Pol’y & L. 284, 297 (2008); Prescott & Rockoff (2008), Immigration Lawyer supra . 23 Howard N. Snyder, Ph.D., SEXUAL ASSAULT Joan Mathieu OF YOUNG CHILDREN AS REPORTED TO LAW ENFORCEMENT : V ICTIM , I NCIDENT , AND OFFENDER CHARACTERISTICS 10 (July 2000), National Center Call me if your legal advice may for Juvenile Justice, NCJ 182990. affect your clients’ immigration status. 24 Id . Protect yourself and your client 25 See State v. Krieger , 163 Wis.2d 241, 257-58 (1991) (A survey of the Wisconsin prison system revealed that sex offenders were at a greater risk 401-4 21-0 911 for various forms of physical, sexual and psycho - logical abuse than inmates not convicted of sex offenses); see also 42 U.S.C. §§ 15601-02 (the We practice only US Immigration Law with 15 years experience in Prison Rape Elimination Law); 103 DOC 519.01- 11 (the Dept. of Corrections’ Sexually Abusive • IRCA. 1- 9, no-match advice • Minimizing adverse immigration Behavior Prevention and Intervention Policy); for US employers consequences of crimes Farmer v. Brennan , 511 U.S. 825, 833 (1994) (“Being violently assaulted in prison is simply not • Foreign Investor, business • Deportation/removal part of the penalty that criminal offenders [should] and family visas • All areas of immigration law – pay for offenses against society”); NO ESCAPE : MALE RAPE IN U.S. P RISONS , Human Rights • Visas for health care professionals referrals welcome Watch, p. 59 (April 2001) (prisoners convicted of • Visas for artists and entertainers sexual offenses against minors are more likely to be targeted for sexual assault in prison than other Member and past CFL chapter president of the American Immigration offenders); see also Doe v. Attorney General , 426 Mass. 136, 144 (1997) (noting the possible harm Lawyers Association. BU Law and MPA Harvard Graduate. of public dissemination to the offender’s earning Full resume on my web site www.immigrators.com capacity); Tweksbury (2006), supra (discussing the social stigma and collateral consequences endured Law offices of Joan Mathieu, 248 Waterman Street, Providence, RI 02906 by registered sex offenders).
Rhode Island Bar Journal Novembe r/December 2011 21 EXPERIENCED, THOROUGHLY PREPARED & SUCCESSFUL TRIAL ATTORNEY
Since 1984, I have been representing people who have been physically and emotionally harmed due to the criminal acts or negligence of others. I have obtained numerous million dollar plus trial verdicts and many more settlements for victims of birth injury, cerebral palsy, medical malpractice, trucking and construction accidents. Between the criminal and civil cases I have been lead counsel in over 100 jury trial verdicts. My 12 years of working in 3 di;erent prosecutors’ o THE LAW OFFICE OF DAVID MOROWITZ, LTD. www.morowitzlaw.com 155 SOUTH MAIN ST., SUITE 304, PROVIDENCE, RI 02903 (401) 274-5556 (401) 273-8543 FAX I am never too busy to promptly return all phone calls from clients and attorneys. 22 Novembe r/December 2011 Rhode Island Bar Journal Lunch with Legends: Trailblazers, Trendsetters and Treasures of the Rhode Island Bar Matthew R. Plain, Esq. Elizabeth R. Merritt, Esq. Taylor Duane Barton & Gilman, LLP, Providence Ray LaFazia came of age What advice would you give to newer members of the during the Great Depression. After bar? graduating from Mount Pleasant High Be trustworthy. I think that’s the biggest thing. Because School in Providence in 1941, he served in recent years I’ve seen untrustworthiness, that some of four years in the Army Air Corps dur - your opponents will win at any price. And that’s always ing World War II. happened, but I think it’s more frequent in recent years. Following the war, Mr. LaFazia What do you think has been the single biggest change returned to Rhode Island, and attend - in the legal profession and the practice of law since you ed Rhode Island State College (later first started back in the ‘50’s? There are a couple of renamed University of Rhode Island) things. When I started practicing law we had eleven for two years before heading to Boston judges in the Superior Court and they handled all the University to obtain his law degree. Raymond A. LaFazia, Esq. calendars. Domestic relations, workers’ compensation, Mr. LaFazia clerked for the Legal everything was in the Superior Court. Aid Society of Rhode Island, and continued handling cases for [Another] big thing [was] when they changed the Rules of Legal Aid even Civil Procedure. We had very simple rules. You could ask some after starting his own private practice. Early in his career, he interrogatories, but depositions were not widespread like they locked horns with Bill Gunning in a workers’ compensation are toda y…and you kind of tried cases by the seat of your case, and the two eventually established Gunning & LaFazia. pants…you didn’t get the discovery that you get today. On the At Gunning & LaFazia, Mr. LaFazia earned a reputation other hand, that’s become very expensive. So today to have a as one of Rhode Island’s best trial lawyers and, perhaps equally lawsuit is a big expense. important, as one of the bar’s most influential mentors. Under Mr. LaFazia’s stewardship, Gunning & LaFazia produced What is one of your most memorable legal experiences? numerous preeminent lawyers and judges, male and female [S]ometime in the ‘60s, I got involved in politics and we went alike. In fact, at one point in the early 1980s, when other firms up against the endorsed candidates in the Town of Johnston. had one token female, Gunning & LaFazia employed a, then And we were pretty successful in our efforts to get our candi - shocking, 25 percent ratio of female attorneys. His daughter, dates known and so forth. But, when it came toward election The Honorable Jeanne E. LaFazia, Chief Judge of the District time, we had voting machines and the endorsed candidates were Court, noted, “For my father, it was always a matter of fairness all listed vertically and our candidates were listed across. And and open-mindedness, and it was a big door that he opened.” somehow I found out that as you go across, for older people We recently sat down with Mr. LaFazia to learn about the particularly, the levers get harder and harder to push, and when plethora of successes in his distinquished career. As a measure you get out to that sixth lever or seventh lever, some people of his powerful impact in the Rhode Island bar, Chief Judge can’t do it. And I don’t know how I got in touch with them but LaFazia, Workers’ Compensation Court Chief Judge George I got in touch with the manufacturer of the voting machine, and E. Healy, Jr., and Superior Court Justice Netti C. Vogel – just he agreed. And we brought it to trial before Judge Perkins, and a small sampling of his many distinguished mentees – also par - he explained that everybody should be listed vertically. We won ticipated in the conversation. that case. And we had them all listed vertically. Below are excerpts from our interview. Would you do this all again? I can’t think of anything better Why has mentoring been such an important part of your prac - to do. tice? Well, because I learned from it too, and it makes the prac - tice of law enjoyable to share something. If you’ve got something A great lawyer indeed, but also, as Judge Healy and Judge you could share and receive from a fellow lawyer…it’s like Vogel remark, “From our standpoint, [Ray] never stopped belonging to the same club; you understand each other better. being a teacher.” Rhode Island Bar Journal Novembe r/December 2011 23 Title Book # Price Qty. Total CLE Publications BANKRUPTCY Avoiding Foreclosur e/ Loan Modifications 10-14 $40 Order Form BUSINESS Practical Skills - Organizing a Rhode Island 11-18 $45 Business (available after 12/7/11) NAME ______Commercial Law 2011: Update on Recent 11-13 $40 Developments FIRM or AGENCY ______Practical Skills - Basic Commercial & Real Estate 11-02 $70 Loan Documentation MAILING ADDRESS ______ENVIRONMENTAL LAW Cannot be a P.O. Box Responding to DEM & CRMC Enforcement 09-17 $30 CITY & STATE ______Actions FAMILY LAW ZIP ______PHONE ______Practical Skills - Domestic Relations Practice 11-09 $50 Child and Medical Support 09-16 $35 EMAIL ADDRESS ______QDRO Practice in RI from A-Z 09-13 $40 LAW PRACTICE MANAGEMENT BAR ID # ______Establishing a Law Firm in RI 09-19 $25 Check enclosed (made payable to RIB A/CLE ) Planning Ahead 09 -14 $39.95 Please do not staple checks. PROBATE/ELDER LAW Medicaid 101 11-15 $35 Please charge to my credit card checked below Practical Skills - Planning for and 11-06 $40 Administering an Estate MasterCard VISA AMEX Discover Medicare Claim Settlements 09-12 $30 Exp. Date ______Administrative Local Rules PR-10 $65 e r e REAL ESTATE H h c Card No. ______a t The Ins & Outs of Landlord Tenant Law 11-11 $15 e D Practical Skills - Residential Closings 11-07 $65 Signature ______RI Title Standards Handbook (through 10/09) TS-09 $35 Please make check payable to: RECENT DEVELOPMENTS Rhode Island Bar Association/CLE Recent Developments in the Law 2011 RD-11 $55 (available after 11/18/11) and mail with order form to: CLE Publications, Rhode Island Bar TRIAL PRACTICE Association, 115 Cedar Street, Providence, RI 02903. Practical Skills - Criminal Law Practice in RI 11-16 $50 Please do not staple checks. (available after 11/4/11) Soft Tissue Injuries Explained 11-12 $35 SHIPPIN G/ HANDLING INFORMATION DWI Update 11-05 $35 Please allow 2-3 weeks for deliver y. All books are sent by FedEx Ground. Practical Skills - Civil Practice in Superior Court 11-04 $40 Practical Skills - Civil Practice in District Court 11-0 1 $40 Social Host Law 09-11 $25 Publication Total Shipping and Handling Cost Up to $45.00 $6 The Elements of a Trial - The Expert Witness 07 -13 $45 HIPAA Explained 04-08 $35 $45.0 1 - $75.00 $9 Model Civil Jury Instructions 03-02 $49.95 $75.0 1 - $100.00 $12 WORKERS’ COMPENSATION $100.01+ $15 Practical Skills - Workers’ Compensation 11-10 $40 Practice in Rhode Island Books $ ______OFFICE USE ONLY Shipping & Handling $ ______ Check No. ______Amount ______Sub -Total $ ______ 7% R.I. Sales Tax $ ______Date Rec’ d ______Date Sent ______Total $ ______24 Novembe r/December 2011 Rhode Island Bar Journal Continuing Legal Education Update To register for CLE seminars, contact the Rhode Island Bar Association’s CLE office by telephone: 40 1- 42 1-5 740, or register online at the Bar’s website: www.ribar.com by clicking on CONTINUING LEGAL EDUCATION in the left side menu. All dates and times are subject to change. November 1 Food For Thought – November 18 Recent Developments 2011 Tuesday Avoiding Liability to Medicare Friday Crowne Plaza Hotel, Warwick Casey’s Restaurant, Wakefield 9:00 am – 4:30 pm 12:45 pm – 1:45 pm 6.0 credits + 1.0 ethics 1.0 credit November 29 Food For Thought – November 3 Food For Thought – Fair Housing Tuesday Exit Strategies for Businesses Thursday & Reasonable Accommodations Casey’s Restaurant, Wakefield RI Law Center, Providence 12:45 pm – 1:45 pm 12:45 pm – 1:45 pm 1.0 credit 1.0 credit November 30 Food For Thought – November 4 Practical Skills – Wednesday Debts, Harrassment & the FDCPA Friday Criminal Law Pre -Trial Practice Holiday Inn Express, Middletown RI Law Center, Providence 12:45 pm – 1:45 pm 9:00 am – 3:00 pm 1.0 credit 4.0 credits + 1.0 ethics December 1 Dodd-Frank – Consumer, Banking November 8 Advocating for Veterans Thursday and Mortgage Lending Provisions Tuesday Sponsored by the Rhode Island Bar RI Law Center, Providence Association US Armed Forces Legal 2:00 pm – 5:00 pm Services Project 2.5 credits + .5 ethics RI Law Center, Providence 1:00 pm – 4:00 pm December 7 Practical Skills – 3.0 credits Wednesday Organizing A Rhode Island Business RI Law Center, Providence November 9 Food For Thought – Fair Housing 9:00 am – 3:00 pm Wednesday & Reasonable Accommodations 4.0 credits + 1.0 ethics Holiday Inn Express, Middletown 12:45 pm – 1:45 pm December 8 Food For Thought – 1.0 credit Thursday Exit Strategies for Businesses RI Law Center, Providence November 10 Food For Thought – 12:45 pm – 1:45 pm Thursday Avoiding Liability to Medicare 1.0 credit RI Law Center, Providence 12:45 pm – 1:45 pm 1.0 credit SAVE THE DATE November 17 Food For Thought – Thursday Debts, Harrassment & the FDCPA 2012 ANNUAL MEETING RI Law Center, Providence 12:45 pm – 1:45 pm June 14 & 15, 2012 1.0 credit Providence Reminder : Bar members may complete three credits through participation in online CLE seminars. To register for an online seminar, go to the Bar’s website: www.ribar.com and click on CONTINUING LEGAL EDUCATION in the left side menu. Rhode Island Bar Journal Novembe r/December 2011 25 of L B IM us I in 3 TE e F D ss R T In EE IM te M E r O ne O t N FF or TH E P S R: ho ne Se rv ic e. “Whether it involves a formal telecommuting arrangement or employees extending their workday by checking e-mail on an iPhone or remotely downloading a document from a “cloud” or via software that connects their home computer to their employers’ network -- an increasing number of 21st-century employees conduct a portion of their duties in this virtual environment.” - CT Law Tribune A day in court doesn’t have to mean a day away from the office. SM Cox Business VoiceManager goes where you go, with 3 FREE MONTHS of Business Internet or Phone, you can forward your calls to the phone of your choice and manage your calls and features from any internet connection. 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Telephone service, including access to e911 service, will not be available during an extended power outage or if modem is moved or inoperable. Telephone services are provided by Cox Connecticut Telcom, LLC, Cox Rhode Island Telcom, LLC or Cox Ohio Telcom, LLC. Cox cannot guarantee uninterrupted or error- free Internet service or the speed of your service. Actual speeds vary. Rates and bandwidth options vary and are subject to change. Discounts are not valid in combination Scan this code with or in addition to other promotions and cannot be applied to any other Cox account. Services not available in all areas. Other restrictions apply. (c)2011 CoxCom, Inc., for a chance to d/b/a Cox Communications New England & Ohio. All rights reserved. To enter to win iPad 2, entrant must be 18 years or older. No purchase necessary. 1 entry per business. win an iPad 2*! Must enter online at www.getcoxbiz.com. Contest information available at www.getcoxbiz.com. 1 monthly winner will be selected at random from all eligible entries for a period of 4 months. Chances of winning depend on number of entries received. Winner will be notified by phone. Call the Cox Business team at 877-903-5930 or visit us at www.CoxBizLegal.com for more information. BOOK REVIEW Constitution Day: Reflections by Respected Scholars edited by Patrick T. Conley, Esq. Between 2000 and 2009, Patrick T. Conley Marbury v. Madison ; the 18th century pursuit sponsored an annual Constitution Day event, of an independent judiciary; the three stages of on or around September 17th, at his Bristol, the American Revolution; the creation of the Rhode Island home, Gail Winds . He invited 1787 constitution; the drive to change the between 100 and 250 guests and, along with Articles of Confederation and the resistance to various rituals including colonial militia re- the new stronger Constitution; the argument enactors and patriotic bands, there was a speech of the opponents of the Constitution, the anti- on the Constitution by a prominent, visiting federalists, sympathetically revisited; the contri - scholar. Attorney Conley describes these events butions of Rhode Island to national constitu - as part scholarly exercise and part social spec- tional issues; the step-by-step incorporation of tacle. This published volume contains twelve the Bill of Rights to the states; the early consti - Jay S. Goodman, Esq. commentaries on the Federal Constitution, each tutional land case of Van Horne’s Lessee v. Professor of Political with an afterword by Conley providing a Rhode Dorrance ; the unsuccessful 19th century push Science, Wheaton College Island focus to the federal issue. There is a lot for broadened suffrage in Rhode Island leading here that is self-referential, including his event to the “Dorr War;” and the rejection of suffrage sponsorship and gracious hosting with his wife, for unpropertied Irish immigrants in Rhode as well as photographs with his six former dis - Island after the Civil War. sertation students from Providence College and Some of the collected speeches are informal of his 7,000 volume private library. The pub - and undocumented, while others are scholarly, lished remarks also contain the informal com - complete with footnotes and references. As For those who like plements and little jokes of participants who examples of the contents, I present the follow - a good evening’s know each other very well. But, at its core, the ing overviews of two essays concerning, respec - volume is a serious festschrift , with the honoree tively, valid objections to the United States reading on histori - being the Constitution of the United States. Constitution during its creation and the strug - cal constitutional Among the chapter authors are: retired gle for individual voting rights in Rhode Island. Brown Professor Gordon S. Wood, a Pulitzer Most of us have never devoted much thought issues, serious, but Prize winner; retired John Hopkins British to the issues surrounding the 1787 ratification not law review empire scholar Jack P. Greene; John P. Kaminski, of our Constitution. It’s just there, and, certain - who has worked on the documentation of the ly, if we know anything at all about its original heavy, this book Constitution project at Madison for forty years; opponents, the anti-federalists, they are seen satisfies. Brown University Bancroft Prize winner James as rural rubes who tried to keep the emerging T. Patterson; longtime Stanford constitutional government in the former colonies weak and history professor Jack N. Rakove; Hunter decentralized. Simple passage of time, plus our College and CCNY historian of women in the continued veneration of the founding fathers, colonies, Carol Ruth Berkin; MIT Professor blurs what were legitimate controversies at the Pauline Maier, a scholar of the politics of the time. Pauline Maier’s contribution, Take This American Revolution; 18th and 19th constitu - or Nothing: Did the Anti-Federalists Have a tional scholar, William M. Wiecek; retired Case? , calls our easy assumptions into question. Rhode Island Supreme Court Chief Justice She points out that our understanding of the Joseph R. Weisberger; retired Connecticut State period is pro-federalist. We see the story as the Historian Christopher Collier; University of Federalists themselves saw it. And, there is justi - Kentucky historian of mid-19th century pop - fication for the Federalists’ contemporary view ulist movements Ronald P. Formisano; and of their sophistication and their success, includ - Conley himself. ing that their version of the document is still Most of commentaries are on 18th and 19th in place. century constitutional cases and issues, but two Maier revisits original documents and press cover 20th century constitutional cases or commentaries. She finds that many good ideas processes. The topics are: an interpretation of were rejected at the Convention. Anti-Federalist Rhode Island Bar Journal Novembe r/December 2011 27 speeches and arguments were not pub - lished or they were suppressed. And, the YOUR Federalists employed what we would call hardball tactics. They resisted amend - ments, refused the idea of a second con - CONNECTICUT vention, and rejected any ratification CONNECTION process that brought local communities and ordinary citizens into the process. At every stage, they controlled the available information. The Convention, which was mandated to revise the failing Articles of Confederation, instead met in tight secre - cy and produced an entirely new docu - ment. The country had no idea what was coming and was presented with a take-it- or-leave-it choice. Two serious objections were to the small size of the House of Representatives (sixty-five) and to the M ESSIER & MASSAD • COUNSELORS ATLAW equal representation of the states in the Gregory P. Massad* Alan R. Messier Jeffrey C. Ankrom Jason B. Burdick Senate. The most important objection was the delegates’ refusal to attach a Bill of Rights to the original document and to thus guarantee individual protections *Licensed in Rhode Island Only against government. In a counterfactual argument, Maier suggests that we could AREAS OF PRACTICE: have gotten a better constitution. Warwick • Personal Injury Her argument is about government Real Estate structure and clearly has a point that • Hartford West Greenwich Bankruptcy emerges from the fog of history and time. office We see now, for example, that for all that • Norwich Wills & Probate Family Law the Constitutional Convention delegates Landlord & Tenant did achieve, they kicked down the road New London the emerging nation’s two most deadly office • Westerly DUI Collections problems. The Constitution strengthened Business Formation slavery in several ways, putting off the Commercial Litigation eventual reckoning on the peculiar insti - tution. And, it achieved no resolution on Connecticut State & Federal Courts the claims of Native Americans, thus set - Connecticut Trial Lawyers Association ting the stage for another hundred years Rhode Island Association for Justice of fighting on the ever-shifting frontier. RIBA Volunteer Lawyer Program Author Ronald P. Formisano points RIBA Lawyers Helping Lawyers Committee out the Revolutionary Era was one of populist constitutionalism. The idea of the people’s sovereignty was widespread, 21 Huntington Street New London, Connecticut 06320 860.443.7014 16 Nooseneck Hill Road W. Greenwich, RI 02817 401.385.3877 and Rhode Island, while in many ways an outlier among the states, nonetheless “nowhere else were the rights of local communities and individuals more jeal - ously guarded.” He states: “The popular assembly, the popular initiative referen - dum, frequent election of officials, as High End Value well as the preponderating influence of the legislature, all bear witness of (Rhode Islanders’) solicitude.” But, by the 1840s Calart Tower all this was gone. A cohesive elite of Providence address, Cranston convenience wealthy landowners, merchants and man - (401) 965-7771 ufacturers dominated politics and resisted any reform. Suffrage was limited to white male landowners, and there was no secret SelectSuites ballot, so employers could monitor their Shared office environments employees voting and, when they disap - proved of employee votes, to take coer - 28 Novembe r/December 2011 Rhode Island Bar Journal cive action. This rule by oligarchy in a period of extensive Irish Catholic immi - gration gave rise to the Dorr Rebellion. Thomas Wilson Dorr was a prince of the gentry but he turned against his class YYoou wwaant it. and supported the so-called “People’s Constitution” which gave the vote to adult white males who had lived in the WWee have it. state for a year. The establishment held a Landowners’ Convention which drafted Guardian Disability Income Insurance its own new constitution in 1843, keep - ing the property qualification for natural - 10% discount to RI Bar Members ized citizens. Competing elections were held, and Dorr was chosen the People’s As a legal professionasional, you may have begun to thinknk you'd never be able governor while the incumbent Samuel to find the kindd off high-quality disability income coc verage you need. Ward King was elected by the landhold - Coverage that includes: ers. After various maneuvers, including an unsuccessful appeal to President Tyler efit paayments when you can't work at youour own occupation - and support from Tammany Hall, Dorr even if you can work at another one led an abortive military raid on an -cancellablellable and guarantteed renewwabblle tto age 65 armory. Another restrictive constitution verr off premiums during disability benefit period was put in place, and Dorr was arrested and sentenced to life imprisonment for If this sounnds like the kind of disability protection you've been treason. He was released after twenty ORRNLQJ IRU DQG \RX¶G OLNH WR GLVFXVV \RXU RSWLRQV RU MXVW OHDUQ months but, his health broken, he died in more about it, please call: 1854 at the age of forty-nine. The domi - nant, nativist Rhode Islanders won again Robbert J. Gallagher & Associates, Inc. when, in 1849, the United States Supreme A Reprreseesentative of Guardiann Court upheld their position, in Luther Robert J. Gallagher, Jr., CLU, CChFC v. Borden , by refusing to adjudicate the Ageg nt substantive issues and first enunciating P.O. Box 154467 the doctrine of “political questions.” Riverside, RI 02915 Thus Rhode Island remained dominated 401-431-0837 by a malapportioned, rural-centered legis - rrjgiggs@[email protected] lature into the 1960s. And the Dorr feud is with us today. The contemporary movement to pardon the last person hanged in Rhode Island, John Gordon in 1845, derives from the biased and unfair process that occurred at the height of the Dorr controversies. Gordon’s attorneys and supporters were Disability income products underwritten and issued by colleagues of Dorr and the Governor and Berkshire Life Insurance Company of America, Pittsfield, MA a wholly owned stock subsidiary of The Guardian Life insurance Company of America, (Guardian) New York, NY. the Judge were from the Law and Order Products not available in all states. Product provisions and features may very from state to state landowner party. (See Patrick T. Conley, “The Origins of the Governor’s Pardoning Power,” Rhode Island Bar Journal , Vol. 59, No. 6, May/June 2011 at 31.) On a related note, this past summer, Rhode Island Governor Chafee posthu - mously pardoned Gordon, based, on the DAVI DW. DUMAS arguments noted in Attorney Conley’s piece referenced above. Reading tastes differ, of course. But for those who like a good evening’s read - , ing on historical constitutional issues, serious, but not law review heavy, this book satisfies. - The reviewed book is a 2010 publication of the Rhode Island Publications Society, Providence. O -- Rhode Island Bar Journal Novembe r/December 2011 29 The Rhode Island Bar Foundation Office Condominium Founded in 1958, the Rhode Island Bar Foundation is the non-profit For Sale philanthropic arm of the state’s legal profession. Its mission is to foster and maintain the honor and integrity of the legal profession and to study, improve, and facilitate the administration of justice. Premier Office Space The Foundation receives support from members of the bar, other 1580 Sq. Feet Foundations, and from honorary and memorial contributions. The Two Story Unit Foundation invites you to join in meeting the challenges ahead by con- tributing to the Foundation’s Tribute Program. The Foundation’s Tribute Program honors the memory, accomplishments, or special occasion of In Established Office Park an attorney, a friend, a loved one, his or her spouse, or another family Landscaped Setting member. Those wishing to honor a colleague, friend, or family member may do so by filling out the form and mailing it, with their contribution, to the Rhode Island Bar Foundation, 115 Cedar Street, Providence, RI 02903. South Kingstown You may also request a form by contacting the Rhode Island Bar Convenient To Route 1 Foundation at 401-421-6541. All gifts will be acknowledged to the family. 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FAVICCHIO To celebrate his/her/their ______Serving Your Clients SEND ANNOUNCEMENT OF GIFT TO: on all Florida Legal Matters Name ______Probate •1031 Exchanges Address ______Real Estate City/State/Zip ______Personal Injury and INDICATE ON ACKNOWLEDGMENT THAT GIFT IS BEING MADE BY: Bankruptcy Your Name(s) ______Convenient Office s: Address ______825 South Tamiami Trail City/State/Zip ______Venice, Florida 34285 Telephone (9 41) 349 -1160 Phone (in case of questions) ______Fax (94 1) 488- 9109 Email: ______Email: mfavicchio @favilaw.com 117 Metro Center Boulevard Rhode Island Bar Foundation, 115 Cedar Street, Providence, R.I. 02903 Suite 2001 telephone: (401) 421-6541 Warwick, RI 02886 All gifts are acknowledged in the Foundation’s annual report. Telephone (401) 946 -1850 Fax (401) 946-5006 30 Novembe r/December 2011 Rhode Island Bar Journal Refusal Cases: Beyond the Basics Recent cases significantly impact the prosecu - the State’s appeal, held that, “[w]hile this tion and defense of refusal to submit to a chem - Panel fully acknowledges the inherent tension ical test case before the Rhode Island Traffic between the Attorney General’s prosecutorial Tribunal (RITT) . In every refusal case, the State role under § 42-9-4 and the role of cities and must prove, by clear and convincing evidence, towns contemplated by Rule 27(a), we never - four key elements to sustain a refusal charge, theless conclude that Rule 27(a) controls our these are that: disposition of the State’s appeal.” 4 1. The law enforcement officer who submit - ted the sworn report to the RITT had rea - II. Refusal Statute Requires Compliance sonable grounds to believe the defendant with R.I. Gen. Laws 31-27-3 had been driving a vehicle within the In State v. Soulliere ,5 the arresting officer Robert H. Humphrey, Esq. State while under the influence of intoxi - began to administer the field sobriety tests at Law Offices of Robert H. cating liquor or drugs; the scene, but the suspect became uncoopera - Humphrey 2. The defendant, while under a lawful tive. The suspect was then arrested on suspicion arrest, refused to submit to a chemical of driving under the influence of alcohol and test upon the request of the law enforce - transported to the Burrillville Police Department. ment officer; The arresting officer testified, “that ‘about 3. The defendant had been informed of his halfway back to the station, [he] realized that or her rights in accordance with R.I. Gen. [he] did not read [Appellant] his rights for use Laws 31-27-3; at scene.’… Before the Officer took Appellant 4. The defendant had been informed of the out of the cruiser and into the police station, he penalties incurred as a result of non-com - read Appellant his rights from a card entitled pliance with R.I. Gen. Laws 31-27-2.1 .1 ‘Rights for Use at Scene.’” 6 Upon reviewing the The recent decisions of the RITT at trial requirements of R.I. Gen. Laws 31-27-3, that a level, the Appeals Panel, and the 6th Division person be immediately informed of their rights, District Court address the four above-refer - the Appeals Panel held that, “time was ‘unrea - enced elements. For the successful prosecution sonably [and] unnecessarily wasted’” 7 and the Kimberly A. Petta, Esq. and defense of refusal cases, prosecutors and Appeals Panel overturned the trial magistrate’s Associate, Law Offices of defense attorneys need to move beyond the decision sustaining the refusal charge. Robert H. Humphrey basic case components and to consider these Two older Appeals Panel cases also address - recent decisions. ing the requirements of R.I. Gen. Laws 31-27-3 are State v. Ciccione and State v. Joyce .9 In I. Rule 27(a) Dismissal by Municipal Joyce , the Appeals Panel held that the refusal For the successful Prosecutors statute, “requires compliance with section 31- prosecution and In State v. Heal y,2 the State appealed the 27-3. To satisfy the requirements of section 31- trial judge’s decision dismissing the refusal 27-3, the actual Rights for Use at the Scene defense of refusal charge pursuant to Rule 27(a) of the Rules of Card must be admitted into evidence unless the cases, prosecutors Procedure of the Traffic Tribunal. The town’s police officer is capable of reciting the language prosecutor, as part of a plea disposition agree - of the Rights for Use at the Scene Card from and defense attor - ment before the District Court, signed a Rule memory.” 10 The Appeals Panel went on to hold, neys need to move 27(a) Dismissal by Prosecution form for sub - “a bare assertion without introducing the mission to the RIT T. As grounds for its appeal, Rights for Use at the Scene Card into evidence beyond basic case the State argued, “that only the Attorney does not comply with the statutory mandates components and General may dismiss a charged violation of required by sections 31-27-2.1 and 31-27-3.” 11 § 31-27-2.1, as the Attorney General is the only In Ciccione , the Appeals Panel held that, to consider recent official with the statutory authority to prose - “[t]he magistrate noted that the officers were decisions. cute refusal cases.” 3 The Appeals Panel, in obligated to arrest and immediately Mirandize upholding the trial judge’s decision and denying appellee at the scene in accordance with Rhode Island Bar Journal Novembe r/December 2011 31 § 31-27-3 if they had probable cause to believe he was driving under the influ - ence.” 12 In Huntley v. State ,13 as a result of a tragic automobile accident, the appellant was charged and subsequently convicted BA NKRUPTCY of driving under the influence – death resulting and refusal to submit to a chemical test. His conviction for refusal Law Office of Steven J. Hart to submit to a chemical test was affirmed 328 Cowesett Avenue, Suite 3 by the RITT Appeals Panel and the District Court. As the District Court West Warwick, RI 02893 Magistrate noted “the investigation which led to his being charged…with the civil offense of refusal did not follow the customary course. For instance, he was telephone: (4 01) 828-9030 never asked to submit to field sobriety tests and he was never read the standard facsimile: (4 01) 828-9032 ‘Rights for Use at the Scene.’” 14 email: hartlaw @cox.net The District Court Magistrate made the following findings regarding the three issues the appellant raised on appeal. First, the arresting officer had reasonable grounds to believe that the appellant was Attorney to Attorney Consultations / Referrals operating under the influence, as required by R.I. Gen. Laws 31-27-2.1, based on “his admission that he had been driving, together with his presence at the scene of the accident in a bloodied condi - tion.” 15 The Court further held that the arresting officer had reasonable grounds to believe the appellant had been driving under the influence of intoxicating liquor despite the absence of field sobriety tests .16 The Court also held that the arresting officer did not violate the requirements of 31-27-3 (the right to an independent physical examination) when he failed to read the appellant his Rights for Use at the Scene .17 Finally, the Court held that the arresting officer had not failed to arrest the appellant prior to requesting him to submit to a chemical test .18 III. Extraterritorial Arrest Results in Refusal Case Dismissal In Jamestown v. White ,19 the Appeals Panel upheld the trial magistrate’s deci - sion to dismiss the refusal charge and the refusal to submit to a preliminary breath test charge based on the non-emergency arrest of the appellee outside of the arresting officer’s territorial jurisdiction despite the existence of a mutual aid agreement. In this case, a Jamestown police officer travelling westbound on Rt. 138 observed the appellee’s vehicle approaching him from behind at a high rate of speed. The arresting officer, “observed the following while both vehi - 32 Novembe r/December 2011 Rhode Island Bar Journal cles were located within the territorial jurisdiction of Jamestown: the suspect vehicle, traveling at a speed in excess of Employee Benefits Law the posted speed limit, drift[ing] over the center dividing line on one occasion and over the fog line on two occasions. Retirement Plans and Executive Compensation Officer Sullivan waited until his cruiser and the speeding vehicle had reached the North Kingstown side of the Jamestown Bridge before activating his cruiser’s emergency lights and attempting to initi - Edward M. McElroy ate a traffic stop.” 20 In upholding the trial Member of the Rhode Island Bar magistrate’s decision, the Appeals Panel stated, “that there are only two recog - nized exceptions to the bright-line rule McElroy Law Group, APC established by Page and its progeny: the 4660 La Jolla Village Drive, Suite 500 so-called ‘hot pursuit’ exception and the San Diego, CA 9 2122 ‘emergency police power’ exception.” 21 The Appeals Panel found that neither Telephone: 858.625.46 70 exception existed in the case at bar. Facsimile: 866.24 3.3264 A recent Massachusetts Appeals Court decision in Commonwealth v. Limone ,22 Email: emcelroy @mcelroylawgroup.net also addresses the issue of an unlawful extraterritorial arrest in the context of a drunk driving case and supports the Designing Innovative Retirement Plans to Businesses Nationwide Appeals Panel’s holding in White . In San Diego and Chicago Offices Limone , the Massachusetts Appeals Court reversed the defendant’s conviction for a fourth or subsequent drunk driving offense and held that “[a] police officer’s power to make a warrantless arrest is generally limited to the boundaries of the jurisdiction in which the officer is employed, and, absent fresh pursuit for an arrestable offense, a police officer is Why Outsource Legal Writing generally without authority to make an arrest outside of his jurisdiction. Outside his jurisdictional boundaries, a police and Research? officer stands as a private citizen, and, Gain the fresh perspective an if not in fresh and continued pursuit of a suspect, an arrest by him is valid only outside attorney can bring to if a private citizen would be justified in your case; making the arrest under the same circum - Provide a sounding board to help stances. In this case, the defendant was frame and narrow the issues; suspected only of a misdemeanor motor vehicle offense. It was subsequent investi - Weather the inevitable busy gation that disclosed the defendant had times; and been convicted on at least six prior occa - sions of operating while under the influ - Avoid fixed overhead. Pay only for ence of liquor. Thus, the seizure of the the time to complete the project defendant was unlawful. The remedy for such an unlawful stop and arrest is exclu - sion of the evidence under the ‘fruit of Law Offices of Maurene Souza the poisonous tree doctrine.’ In this case, since the only evidence would have not 50 South Main Street been obtained but for the unlawful stop Providence, RI 02903 and subsequent arrest, the judgments are 401 -27 7-9822 souzalaw @cox.net reversed, the verdicts are set aside, and Licensed in Rhode Island and Massachusetts. judgments are to enter for the defen - dant.” 23 (citations omitted) Rhode Island Bar Journal Novembe r/December 2011 33 IV. Sworn Reports sion of the Traffic Tribunal is hereby Warwick Police Department would not In Cohen v. RIT T,24 the District Court REVERSED .” 25 produce the potentially exculpatory evi - Judge reversed the decision of the RITT dence, the appellant’s counsel filed a Appeals Panel, which previously reversed V. Discovery Violation Results in motion to compel which was granted by the trial magistrate’s decision dismissing Refusal Charge Dismissal the RITT Trial Magistrate. The District the refusal charge. The District Court In Warwick v. Cianci ,26 the District Court Judge held “[i]t is abundantly clear Judge, in reversing the Appeals Panel’s Court Judge reversed the decision of from the record before this Panel that decision, stated “the evidence in the the Appeals Panel which had upheld the counsel for Appellant did everything instant case goes beyond the facts and trial magistrate’s decision sustaining the that he was required to do pursuant to holding of Link regarding the introduction refusal charge. The District Court Judge Rule 11 of the Traffic Tribunal Rules of of the sworn report (or defects contained stated “[t]he gravamen of the case is Procedure to obtain the videotape evi - therein): there is no evidence that officer whether the Prosecution, (Police depart - dence in possession, custody, and control Geoghegan ever produced a report or if ment and Attorney Generals department) of the Warwick Police Department. As such a report was prepared on the date acted in bad faith by not affording the such, the trial magistrate erred in denying in question or whether that report was appellant her basic rights as a citizen. Also, Appellant’s dismissal motion on the properly sworn before a notary. While did this 19 month delay in discovery grounds that counsel should have taken the court in Link held that the technicali - cause substantial and prejudice prior to the additional – and completely unwar - ties of the report are not an element of and during her trial.” 27 In reviewing the ranted – step of subpoenaing the Warwick the ‘hearing’ case, it insisted that each of history of the case, the District Court Police Department to produce the video - the elements of the ‘hearing’ case must be Judge determined that the day after the tape pursuant to Rule 12.” 29 As a result, proven, one of these is that the ‘officer appellant’s arrest, her attorney “forward - the decision of the Appeals Panel was making the sworn report’ had reasonable ed a written discovery request to the reversed. grounds to believe the operator had been Warwick Police Department that closely driving under the influence. See Section tracked the language of Rule 11 of the VI. Silence is Not Golden and 31-27-2.1(c)(1) and Link , supra , 633 A.2d Traffic Tribunal Rules of Procedure (Rule Constitutes Refusal at 1349. Because this element was not 11). After a month had elapsed and with - In North Providence v. Exarchos ,30 the proven, the motorist’s conviction must be out a response, counsel forwarded a sec - police asked the motorist to submit to set aside. To overlook this omission would ond, more explicit discovery request to the chemical test and the motorist refused completely distil the plain language of the headquarters of the Warwick to answer. The police made the request a Section 31-27-2.1. Accordingly, the deci - Police…” 28 Eventually, when the few times and each time the motorist was SOCIAL SECURITY DISABILITY TITLE CLEARING ______MEDICAL MALPRACTICE QUIETING TITLE Donna M. Nesselbush ACTIONS Joseph P. Marasco Mariam A. Lavoie Joseph P. Wilson Mark H. Grimm Roger C. Ross Jennifer L. Belanger Paul E. Dorsey William Elderkin, Jr. Blais Cunningham A. Chace Wessling & Crowe Chester, LLP Timothy P. Lynch Patrick S. Cannon 150 Main Street Attorney Referrals Welcome Pawtucket RI 02860 TELEPHONE: (4 01 ) 723 -11 22 WWW.M-N-LAW.COM FAX: (4 01 ) 726- 6140 EMAIL: rross @blaislaw.com 34 Novembe r/December 2011 Rhode Island Bar Journal silent. At trial, the magistrate ruled “I was a lack of evidence regarding his and made several phone calls in the pres - don’t think it, [the] [refusal] needs to be alleged impairment. The Appeals Panel ence of the officer. The presence of the verbal. I think his actions certainly indi - held “that Magistrate Goulart’s questions officer violated his rights pursuant to R.I. cated to this officer that he’s refusing a clarified previous testimony and is wholly Gen. Laws 12-7-20 .37 test.” 31 The Appeals Panel agreed holding consistent with Rule 614 and the propos - However since Quattrucci , there the “silence [w]as a constructive, or con - als enumerated in Nelson .” 34 With regards seems to be a shift in the motorist’s right ditional refusal, which we have held to to the reasonableness of the stop, the to a confidential telephone call pursuant have the same legal effect of an actual Appeals Panel looked at the totality of to R.I. Gen. Laws 12-7-20 in the context refusal.” 32 the circumstances known to the officer at of refusal cases as demonstrated in the the time of the stop. The Panel determined following three cases. VII. Questioning By Court the stop was reasonable because the wit - In DeCorpo v. State ,38 the Refusal In State v. DiPrete ,33 the police stopped ness observed the accident and continued charge was sustained despite the presence the motorist based on information from to follow the vehicle while talking to dis - of the police during the motorist’s tele - dispatch regarding a possible hit and run patch, the officer verified/corroborated phone call. On appeal to the 6th Division accident. A witness to the accident called aspects of the tip before stopping the District Court, Magistrate Ippolito held dispatch and relayed information (make, motorist’s vehicle and the informant was “the right to a confidential telephone call model, license plate number and location trustworthy by providing a statement to found in § 12-7-20 does not apply to of the vehicle) to the police, including the police. 35 those charged with civil violation – motorist might be intoxicated. The offi - ‘Refusal to Submit to a Chemical Test.’” 39 cer never observed the motorist commit VIII. Confidential Telephone Calls (emphasis added). He reasoned that proof any traffic violations before stopping the (R.I. Gen. Laws 12-7-20) the defendant was not afforded a confi - vehicle. The motorist was never charged In State v. Quattrucci ,36 Judge dential telephone call is not an element of in connection with the accident, but he McLoughlin affirmed the decision of the the Refusal statute (31-27-2.1) that must was charged with DUI and Refusal. At Appeals Panel which upheld the decision be proven by clear and convincing evi - trial, the magistrate asked questions of of Magistrate DiSandro to dismiss the dence .40 In addition, 12-7-20 is part of the the officer including detailed information Refusal charge based on the lack of a criminal procedure/arrest statute which he received from dispatch and why the confidential telephone call. When asked does not include civil violations .41 Its pur - motorist was stopped. On appeal, the by the Warren Police if he wanted to pose is to provide a phone call to arrange motorist alleged the Trial Magistrate make a confidential telephone call, the violated the Rules of Evidence, and there motorist responded that he “didn’t care” continued on page 42 SOLACE Helping SOLACE, an acronym for Support of Bar Members are screened and then directed through the Lawyers, All Concern Encouraged, is a SOLACE volunteer email network where new Rhode Island Bar Association program in Times members may then respond. On a related allowing Bar members to reach out, in a of Need note, members using SOLACE may meaningful and compassionate way, to their request, and be assured of, anonymity colleagues. SOLACE communications are for any requests for, or offers of, help. through voluntary participation in an email-based network To sign-up for SOLACE, please go to the Bar’s website at through which Bar members may ask for help, or volunteer to www.ribar.com , login to the Members Only section, scroll assist others, with medical or other matters. down the menu, click on the SOLACE Program Sign-Up , and Issues addressed through SOLACE may range from a need for follow the prompts. Signing up includes your name and email information about, and assistance with, major medical problems, address on the Bar’s SOLACE network. As our network grows, to recovery from an office fire and from the need for temporary there will be increased opportunities to help and be helped by professional space, to help for an out-of-state family member. your colleagues. And, the SOLACE email list also keeps you The program is quite simple, but the effects are significant. informed of what Rhode Island Bar Association members are Bar members notify the Bar Association when they need help, doing for each other in times of need. These communications or learn of another Bar member with a need, or if they have provide a reminder that if you have a need, help is only an something to share or donate. Requests for, or offers of, help email away. Rhode Island Bar Journal Novembe r/December 2011 35 Criminal Consequences the legislature establish minimal guide - the law is further illustrated by the fact continued from page 9 lines to govern law enforcement.’” 23 that the police are sometimes guilty of “[W]ithout explicit standards to guide violations. Police departments commonly Section 11-52-7(b) fails to properly those who administer the law, there is create fake Facebook profiles to investi - guide law enforcement and, instead, always the threat of arbitrary and dis - gate criminal suspects and screen their encourages arbitrary and discriminatory criminatory enforcement and the inhibit - recruits during pre-employment back - enforcement. ing of the exercise of basic freedoms.” 24 ground checks. Some police departments Section 11-52-7(b) is also unconstitu - “Where the legislature fails to provide also set up sting operations online where tionally vague because it fails to establish such minimal guidelines, a criminal they falsely represent themselves as a proper guidelines for law enforcement statute may permit ‘a standardless sweep minor to seek out pedophiles and sex and allows for discriminatory and arbi - [that] allows policeman, prosecutors, and offenders. Competent investigators engage trary enforcement. The case against our juries to pursue their personal predilec - in this sort of deception regularly to police officer is a clear example of selec - tions.’” 25 secure useful information in both crimi - tive enforcement. After all, the police Just like the general public, police are nal prosecution and defense. Yet, these efforts to ferret out the party responsible forced to speculate what constitutes a actions by the police and others are ille - for creating a false Facebook page of the “transmission” and “false data” under gal under section 11-52-7(b). chief, using search warrants, subpoenas, the statute. The police are forced to draw Countless fake profiles exist on high-tech wireless Internet access detec - their own line of when they believe an Facebook falsely purporting to be real or tors, and other techniques, are more like offense is arrestable under section 11-52- fictitious persons. The reality is that pros - law enforcement efforts to locate and 7(b), rather than being properly guided ecuting every person who creates a fake arrest a dangerous drug dealer. by the statute. Here, the police decided profile on Facebook would be impossi - Although the vagueness doctrine that creating a false Facebook page for ble. Even if it was possible, society would focuses on both actual notice to citizens the chief was criminal whereas, let’s say, likely strongly oppose the criminalization and arbitrary enforcement, “the more creating a false Facebook page for a crim - of that conduct. Here, though, our police important aspect of vagueness doctrine ‘is inal defense lawyer might not be. officer has been charged criminally for not actual notice, but the other principal Most interesting, and to many most doing something that thousands of other element of the doctrine which requires offensive, is the discriminatory effect of Rhode Islanders are guilty of and for Please contact us for strictly confidential, free, peer and professional assistance for your personal challenges. We are here to help you. Brian Adae, Esq. 831-3150 Neville J. Bedford, Esq. 709-4328 Rhode Island Bar Association members and their families may receive confidential and Henry V. Boezi III, Esq. 861-8080 free help, information, assessment and referral for personal challenges through the Bar’s David M. Campanella, Esq. 273-0200 contract with Resource International Employee Assistance Services (RIEAS) and through the John L. Capone, Esq. 392-4070 members of the Bar Association’s Lawyers Helping Lawyers Committee. To discuss your Diana Degroof, Esq. 274-2652 concerns, or those you may have about a colleague, you may contact a Lawyers Helping Sonja L. Deyoe, Esq. 437-3000 Lawyers Committee member, or go directly to professionals at RIEAS who provide con- Kathleen G. DiMuro, Esq. 944-3110 fidential consultation for a wide range of personal concerns including but not limited to: Lin M. Eleoff, Esq. 480-9101 balancing work and family, depression, anxiety, domestic violence, childcare, eldercare, Merrill J. Friedemann, Esq. 331-1434 grief, career satisfaction, alcohol and substance abuse, and problem gambling. Jeffrey L. Koval, Esq. 230-7277 When contacting Resource International Employee Assistance Services, please identify Nicholas Trott Long, Esq., Chairperson 351-5070 yourself as a Rhode Island Bar Association member. A RIEAS Consultant will briefly discuss Genevieve M. Martin, Esq. 274-4400 your concerns to determine if your situation needs immediate attention. If not, initial appoint - Dennis J. McCarten, Esq. 965-7795 ments are made within 24 to 48 hours at a location convenient to you. Please contact RIEAS Daniel P. McKiernan, Esq. 223-1400 Joseph R. Miller, Esq. 454-5000 by telephone: 401-732-9444 or toll-free: 1-800-445 -11 95. Henry S. Monti, Esq. 467-2300 Lawyers Helping Lawyers Committee members choose this volunteer assignment Roger C. Ross, Esq. 723-1122 because they understand the issues and want to help you find answers and appropriate Adrienne G. Southgate, Esq. 301-7823 courses of action. Committee members listen to your concerns, share their experiences, and Ms. Judith G. Hoffman, 732-9444 offer advice and support. LICSW, CEAP, RIEAS or 800-445-1195 Lawyers Helping Lawyers Committee Members Protect Your Privacy 36 Novembe r/December 2011 Rhode Island Bar Journal which none would ever be prosecuted. Content-Based Restrictions 1. Section 11-52-7(b) Regulates an Without question, our police chief’s Section 11-52-7(b) of the Rhode Island “Expressive Activity” concern about the fake Facebook profile General Laws unconstitutionally places The “expressive activity” regulated made in his likeness could be reasonable. a ban on all speech with “false” content, by the statute is the transmission of data. However, when a person in a position of which creates a content-based restriction The term data, by its statutory definition, power or authority is able to direct the on speech that cannot survive strict includes information, knowledge, facts, police to investigate a matter that they scrutiny. As the Rhode Island Supreme concepts, and instructions .28 The primary would not investigate for an ordinary cit - Court has stated, “singular focus on the means by which these are expressed is izen, it is the very definition of arbitrary content of an expressive activity rings through speech. For example, if informa - and discriminatory enforcement. If any - First Amendment bells and places the tion, knowledge, or facts were transmit - thing, the chief’s position as a public offi - statute squarely within the category of ted through a computer it would almost cial should make him less protected than a content-based regulation meriting strict certainly be transmitted in some form of the ordinary citizen. Section 11-52-7(b) is scrutiny.” 27 Section 11-52-7(b), therefore, written speech or other expressive means so vague it gives law enforcement unfet - warrants a three-part analysis requiring: (like a chart, illustration, or diagram). tered discretion to arbitrarily and dis - 1) an “expressive activity;” 2) a focus on As a result, an “expressive activity” is criminatorily choose when to enforce the content; and 3) strict scrutiny analysis if at issue and First Amendment analysis law and, therefore, it is unconstitutional. the first two points are met. is implicated. Lawyers on the Move Christine Borzilleri, Esq. has opened the Borzilleri Law Donald A. Migliori, Esq. was elected and installed as Office , 986 Hartford Avenue, Johnston, RI 02919. President of the Rhode Island Association for Justice. 401-274-3331 borzillerilaw @gmail.com www.borzillerilaw.com David G. Morowitz, Esq. is now practicing at The Law Office of David Morowitz, Ltd. , 155 South Main Street, Robert Clark Corrente, Esq. , partner in the Burns & Suite 304, Providence, RI 02903. Levinson LLP Providence office, received the Common 401-274-5556 david @morowitzlaw.com Cause Excellence in Public Service Award from Common www.morowitzlaw.com Cause Rhode Island. Stefanie A. Murphy, Esq. announces the opening of the Law Matthew S. Dawson, Esq. , Pamela Chin, Esq. and Maria F. Offices of Stefanie A. Murphy, LLC , East Greenwich, RI. Deaton, Esq. have joined the Patrick Lynch Law Firm , One 401-316-9423 samurphy @samurphylaw.com Park Row, 5th Floor, Providence, RI 02903. www.samurphylaw.com 401- 274-3306 mdawson @patricklynchlaw.com pchin @patricklynchlaw.com mdeaton @patricklynchlaw.com Charles W. Normand is now a Partner in the law firm of www.patricklynchlaw.com Robinson & Cole LLP , One Financial Plaza, Suite 1430, Providence, RI 02903. Michael DiLauro, Esq. , Assistant Public Defender and 401-709-3328 cnormand @rc.com www.rc.com Director of Training and Legislative Liaison, Rhode Island Office of the Public Defender , was awarded the National Teri E. Robins is now an Associate in the the law firm of Association of Criminal Defense Lawyers’ first Champion Robinson & Cole LLP , One Financial Plaza, Suite 1430, of State Criminal Justice Reform Award . Providence, RI 02903. 401-709-3357 trobins @rc.com www.rc.com Cynthia M. Fogarty, Esq. , of Fogarty Law Office , Calart Tower, 400 Reservoir Avenue, Suite 1A, Providence, RI Anne E. Sharrard, Esq. , has been appointed a United States 02907, was sworn in as 2011-2012 President of The Rotary Administrative Law Judge with the Social Security Club of Cranston. Administration in Lawrence, MA. Katherine Godin, Esq. notes The Law Office of Katherine Godin, Inc. moved to 615 Jefferson Blvd., Warwick, RI 02886. 401-274-2423 kg @katherinegodinlaw.com For a free listing, please send information to: Frederick D. www.katherinegodinlaw.com Massie, Rhode Island Bar Journal Managing Editor, via William J. Lynch, Esq. has joined the Providence law firm of email at: fmassie @ribar.com, or by postal mail to his atten - tion at: Lawyers on the Move, Rhode Island Bar Journal, Adler Pollock & Sheehan P.C. One Citizens Plaza, 8th Floor, 115 Cedar Street, Providence, RI 02903. Providence RI 02903. 401-274-7200 wlynch @apslaw.com Rhode Island Bar Journal Novembe r/December 2011 37 2. The Regulation Set Forth in Section 11-52-7(b) is Focused on Content A statute is content-based, as opposed to content-neutral, when it “could not be enforced without first determining whether the content of a particular work fell within the regulated category.” 29 Section 11-52-7(b)’s regulation on the transmission of data is clearly content- based because it draws a distinction between “false data” and “true data.” 30 Section 11-52-7(b) cannot be enforced without first determining whether the content of a transmission falls within the regulated category of untrue speech. Specifically, the State must actually deter - mine if the offending content is true or false before it can enforce the statute. Therefore, the statute is based on content. 3. Because Section 11-52-7(b) is Content-Based, It Must Be Strictly Scrutinized Because of its content-based restriction on expression, section 11-52-7(b) must be reviewed under strict scrutiny. To survive Workers’ Compensation strict scrutiny “the State must show that its regulation is necessary to serve a com - pelling state interest and is narrowly Injured at Work? drawn to achieve that end.” 31 This burden is overwhelmingly difficult to meet, such that the United State Supreme Court Accepting referrals for workers’ “time and again has held content-based or viewpoint-based regulations to be pre - compensation matters. sumptively invalid .” 32 The burden is on the State to rebut that presumption. Section 11-52-7(b) fails strict scrutiny analysis because there exists no com - Call Stephen J. Dennis Today! pelling state interest in support of the statute, nor is the statute narrowly tai - 1-888-634 -1543 or 1-40 1-453 -1355 lored to meet any conceivable state inter - est. It is true that the state could validly assert a compelling interest in protecting the public from select types of false speech, such as fraud, defamation, or false and misleading spam email sent from commercial entities. However, sec - tion 11-52-7(b) extends further than these unprotected forms of speech. It bans THERE SA VER DADEIRO L ABONTE information, knowledge, and facts just for being false. Therefore, the only plau - sible goal of the statute is to protect the public from “false” information in gener - Telephone (4 01) 8 21- 6723 al being transmitted to them. Considering that some false information is expressly permitted by the First Amendment ,33 it is obvious there is no compelling interest served by the statute. Portuguese - English Interpreter Furthermore, the statute broadly places its restrictions on all computer use and most cell phone use, whether it is on 38 Novembe r/December 2011 Rhode Island Bar Journal an open network or in private. The pub - lic is so dependent on computers and cell phones today, both at work and in their personal lives, a permanent and absolute ban against all false content transmitted in Rhode Island would clearly be well outside the bounds of what constitutes narrow tailoring to meet the state’s inter - est. As a result, the presumption that sec - tion 11-52-7(b) is unconstitutional cannot be rebutted. Structuring tax-defe rred exchanges Parody throughout the U.S. Our police officer’s false Facebook with Integrity and Expe rience profile was clearly intended to be a paro - dy. Parody, satire, and humor have long been recognized as protected First Charles J. Ajootia n, Es q. Amendment speech .34 President and Counsel Internet profiles, like the one made R by our police officer, have been protected under the First Amendment in several Rhode Island’s leading Intermedia ry since 199 7. other cases. I n Layshock ex rel. Layshock v. Hermitage School District , a student created a MySpace profile using the actual name and photograph of his high school principal. 35 In the profile, the student posted information that made the princi - pal out to be a drunk, smoker of marijua - na, and homosexual .36 The profile was termed a “parody profile,” and it was protected from regulation by the school under the First Amendment .37 The same result occurred in J.S. ex rel. Snyder v. Blue Mountain School District , where a middle school student created a far more Your Green Building Lawyer vulgar and profane MySpace profile mak - ing fun of her middle school principal .38 If you need an experienced lawyer to handle legal The Facebook profile at issue here is matters related to environmentally-friendly green a parody in the same regard. It created a caricature of the police chief. A carica - building issues, please contact me. ture, as defined in Hustler , is “the delib - First Rhode Island attorney to earn the erately distorted picturing or imitating of a person, literary style, etc. by exaggerat - United States Green Building Council ing features or mannerism for satirical (USGBC) Leadership in Energy and effect.” 39 Hustler held that caricatures Environmental Design Accredited of a person are protected by the First Professional (LEED AP) designation Amendment no matter how outrageous and offensive they may be to the person LEED AP with Building Design and caricaturized or the public .40 Under that Construction credential rationale, an online caricature should be protected in the same regard. Over 25 years of experience in land use, Christine J. Engustian planning and zoning la w, and real estate Conclusion Attorney at Law development and permitting Like the technology it was based on in 1989, section 11-52-7(b) is now archaic One Grove Avenue Member of Rhode Island Builders and obsolete, no longer capable of carry - East Providence, RI 02 914 Association, Rhode Island Chapter of ing out its originally intended purpose. telephone: 4 01.434 .1250 the USGBC , Rhode Island Chapter of With over twenty years of technological email: cjengustian @gmail.com the American Planning Association advancement since its enactment, it is dif - ficult to look back now and determine Rhode Island Bar Journal Novembe r/December 2011 39 what, exactly, section 11-52-7(b) was used for in 1989, or how we can get it to work at all in 2011. The failure to provide limi - tations or qualifications to the language MARC J. SOS S, ESQUIRE drafted in the statute has resulted in a law that grows broader and more vague with each successive advancement in technology. Section 11-52-7 is ripe for a visit by our Legislature. Until it does, any misstate - ments or falsities contained in this article, 591 0 Post Boulevard prepared on a computer, and transmitted P. O. Box 1101 27 as the statute construes that term, were Lakewood Ranch, Florida 34 211 made without knowledge or intent! (9 41 ) 928-0 310 ENDNOTES mjs @fl-estateplanning.com 1 By the way, if you do not know what a Facebook ww w.fl-estateplanning.com profile is or who your Facebook friends are, do not despair. After all, neither did the Legislature when it enacted this criminal statute in 1989. 2 R.I. Gen. Laws § 11-52-7(b) (2010). 3 R.I. Gen. Laws § 11-52-1 (2010). Available to assist you and 4 See State v. McKenna , 415 A.2d 729, 732 (R.I. your clients in Florida with Estate 1980) (holding that “distaste for indelicate lan - guage” does not alone permit the court to sanction Planning, Probate Administration its prosecution). and Document Revie w. 5 State v. Russell , 890 A.2d 453, 459 (R.I. 2006) (citations omitted). 6 In re Advisory From the Governor, 633 A.2d 664, 674 (R.I. 1993) (citing Broadrick v. Oklahoma , 413 U.S. 601, 612 (1973)). 7 Broadrick , 413 U.S. at 612. 8 United States v. Williams , 553 U.S. 285, 293 (2008). 9 See United States v. Alvarez , 617 F.3d 1198 (9th Cir. 2010) (“All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished”). 10 Hustler Magazine v. Falwell , 485 U.S. 46, 51 You know financial planning. (1988). 11 Although the public does not usually consider We know philanthropy. cell phones to be computers in the traditional sense, the definition of “computer” stated in sec - tion 11-52-1 would clearly apply to most cell Talk about a win-win. phones, and perhaps many other instrumentalities of speech as well beyond just what we traditionally think of as a “computer.” Per section 11-52-1, “‘Computer’ means an electronic, magnetic, opti - cal, hydraulic or organic device or group of devices The Rhode Island Foundation has beena charitable which, pursuant to a computer program, to human planning resource for attorneys and professional instruction, or to permanent instructions con - tained in the device or group of devices, can auto - advisors for more than90 years. Findout how we can matically perform computer operations with or on help you provide a full range of charitable tools computer data and can communicate the results to another computer or to a person. The term ‘com - that offer maximum benefits to your clients. puter’ includes any connected or directly related device, equipment, or facility which enables the computer to store, retrieve or communicate com - puter programs, computer data or the results of Please call Jim Sanzi, computer operations to or from a person, another Sr. Development Officer, computer or another device.” R.I. Gen. Laws § 11- 52-1 (2010). at (401) 427-4044 12 United States v. Stevens , 130 S. Ct. 1577, 1591 (2010). or visit www.rifoundation.org 13 E.g., Hustler Magazine , 485 U.S. at 56; Garrison v. Louisiana , 379 U.S. 64, 74 (1964) (“Truth may not be the subject of either civil or criminal sanctions where discussion of public 40 Novembe r/December 2011 Rhode Island Bar Journal affairs is concerned”). 14 Virginia v. Hicks , 539 U.S. 113, 119 (2003). 15 Ashcroft v. Free Speech Coalition , 535 U.S. 234, 244 (2002). RH ODE ISLAND PRIVATE DETECTIVES & 16 R.I. Gen. Laws. § 11-52-7(b)(2) (emphasis added). PROTECTIVE SERVICES LLC 17 See R.I. Gen. Laws § 11-52-1 (2010). 18 Kolender v. Lawson , 461 U.S. 352, 357 (1983). Former Federal Agents & Police Investigators 19 State v. Authelet , 385 A.2d 642, 643 (R.I. 1978) (quoting State v. Levitt , 371 A.2d 596, 598 (R.I. 1977)). Licensed in RI & MA 20 Id . at 644. 21 Id . 22 Id . 23 Kolender , 461 U.S. at 358 (quoting Smith v. Goguen , 415 U.S. 566, 574 (1974)). * INVESTIGATIONS 24 Authelet , 385 A.2d at 644. 25 Kolender , 461 U.S. at 358 (quoting Goguen , * ARMED SECURITY 415 U.S. at 574). 26 See Gertz v. Robert Welch, Inc. , 418 U.S. 323, * FINGERPRINT SERVICES 345 (1974) (Public officials “have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a pri - vate citizen.”). Henry Roy, Senior Partner Napoleon Brito, Managing Partner 27 Bouchard v. Price , 694 A.2d 670, 676-77 (R.I. 1997). www.riprivatedetectives.com 28 R.I. Gen. Laws § 11-52-1 (2010). www.bodyguard.com 29 Bouchard , 694 A.2d at 676. 30 See United States v. Alvarez , 617 F.3d 1198, One Richmond Square Suite 125B (401) 421-5705 1217 (9th Cir. 2010) (analyzing truth and falsity as content-based distinctions warranting strict Providence, Rhode Island 02906 info @riprivatedectives.com scrutiny review). 31 Id . at 677 (quoting Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd. , 502 U.S. 105, 118 (1991)) (emphasis added). 32 Hill v. Colorado , 530 U.S. 703, 769 (2000) (emphasis added). 33 E.g. , Gertz v. Robert Welch, Inc. , 418 U.S. 323, JOSEPH A. KEOUGH 341 (1974) (“the First Amendment requires that we Retired M agistrate Judg e/ protect some falsehood in order to protect speech that matters”); New York Times Co. v. Sullivan , Rhode Island Superior Court 376 U.S. 254, 271-72 (1964) (“erroneous statement is inevitable in free debate” and “[e]ven a false Is Now Available For statement may be deemed to make a valuable con - tribution to public debate, since it brings about Me diat io n & Ar bitrat io n Serv ices ‘the clearer perception and livelier impression of Torts, Business Disputes, Domestic Matters truth, produced by its collision with error’”). 34 See, e.g., Hustler Magazine v. Falwell , 485 110 Armistice Boulevard, Pawtucket, RI 02860 U.S. 46 (1988). 35 No. 07-4465, 2011 WL 2305970, at *1 (3rd (401) 724-3600 jakemas [email protected] Cir. June 13, 2011). Alternate Dispute Resolution 36 Id . at *2. 37 Id . at *1. 38 No. 08-4138, 2011 WL 2305973, at *1 (3rd Cir. June 13, 2011). 39 Hustler Magazine , 485 U.S. at 53 (quoting WEBSTER ’S NEW UNABRIDGED TWENTIETH There’s only one ... CENTURY DICTIONARY OF THE ENGLISH LANGUAGE 275 (2d ed. 1979)). 40 Id. at 55-56. O RI Zoning Handbook, 2d by Roland F. Chase, Esq. • Completely revised • 340 pages • Comprehensive text-and-footnote analysis of Rhode Island zoning law, plus federal zoning law (new!) • Kept up to date with annual supplements • Table of Cases • Table of Statutes • Exhaustive index • $80.00 plus $5.60 tax • No shipping charge for pre- paid orders. Further information and order form at www.rizoning.com. Chase Publications, Box 3575, Newport, RI 02840 Rhode Island Bar Journal Novembe r/December 2011 41 Refusal Cases vehicles collided with the police cruiser. reasonable opportunity to make a confi - continued from page 35 As a result, the motorist was transported dential phone call but its own language to the hospital for evaluation. At the hos - and intent allows for exigent circum - for bail and secure an attorney. Bail is pital, he was given the opportunity to stances to satisfy the requirement.” 51 a non-issue in a civil violation, and, make a confidential telephone call pursu- although motorists are permitted to ant to R.I. Gen. Laws 12-7-20. However, X. Effect of Preliminary Breath Test retain counsel, the “Supreme Court ha[d] he made the telephone call three hours (PBT) After Arrest ruled that a drunk driving arrestee has after his arrest. The Trial Magistrate dis - In Haley v. State ,52 the motorist was no right to consult with an attorney prior missed the Refusal charge, holding that arrested, placed in a police cruiser and to deciding whether to take or refuse a “prejudice” resulted for the motorist read her Rights for Use at the Scene. chemical test.” 42 The Rhode Island because he was not given a confidential The officer requested, and the motorist Supreme Court has stated that “misde - phone call within one (1) hour of his submitted to, a PB T. At the station, the meanor and civil alcohol charges are sep - detention .48 The Appeals Panel in over - motorist refused to submit to a chemical arate and distinct offenses” 43 although turning the Trial Judge’s decision rea - test .53 The motorist argued that her sub - they arise out of factually interrelated soned that the purpose of a confidential mission to the PBT precluded her from events. Finally, Magistrate Ippolito stated telephone call is “to ensure that the being charged with Refusal because she that even if the motorist could show motorist is not unreasonably detained never “refused” to submit to a chemical prejudice due to a lack of a confidential within the course of his or her arrest test. Both the Trial Magistrate and telephone call, the remedy of dismissing without access to counsel or to arrange Appeals Panel found the motorist guilty the Refusal charge is inappropriate. 44 for bail.” 49 The motorist was given the of Refusal. On appeal to the 6th Division A follow-up to the DeCorpo case were chance to make a telephone call as soon District Court, Magistrate Ippolito found Magistrate Ippolito’s holdings in as possible given the circumstances and the fact that the motorist was arrested Nicholas v. State 45 and Eldridge v. State .46 the purpose of R.I. Gen. Laws 12-7-20 prior to the administration of the PBT test was fulfilled. Furthermore, the “delay in crucial. This case is unusual because the IX. Timeliness of Telephone Calls the present case was unintentional and no police did not follow the usual procedure In North Kingstown v. Beiber ,47 the substantial likelihood of a miscarriage of of administering the PBT test prior to Appeals Panel analyzed the confidential justice resulted from the ‘technical non - arresting the motorist. He held that the telephone statute, R.I. Gen. Laws 12-7-20. compliance’ with § 12-7-20.” 50 The motorist agreed to the PBT after she had In this case, the motorist was arrested Appeals Panel held “that 12-7-20 only been arrested and, therefore, she fulfilled and, while still at the scene, two different requires that the defendant be afforded a “her obligation under the implied-con - sent law” and “she had no duty to agree to further chemical tests at the station.” 54 His reasoning was based on the definition IMMI GRAT ION LAW of a chemical test under the Refusal stat- ute and that the PBT could be a defined as a chemical test if the PBT is based on JAMES A. BRIDEN the ‘principle of infrared light absorp - tion.’ 55 Since there was no evidence on Blais Cunningham & Crowe Chester, LLP the record regarding the scientific basis 150 Main Street of the PB T, the case was remanded back Pawtucket, RI 02860 to the Appeals Panel on that issue alone. XI. Conclusion 401-723-1122 These recent decisions of the trial level of the RIT T, the Appeals Panel, and the 6th Division District Court address the fundamental elements of refusal cases. Hopefully, the decisions in these cases will provide guidance to prosecutors and BALSOFIORE & COMPANY, LTD. defense attorneys involved in the prose - cution and defense of these challenging FINANCIAL INVESTIGATIONS cases .56 ORENSIC CCOUNTING ITIGATION UPPORT F A L S ENDNOTES FINANCIAL PROFILES OF INDIVIDUALS AND BUSINESSES 1 R.I. Gen. Laws 31-27-2.1. LOCATE PEOPLE – ASSET SEARCHES 2 State v. Healy , T08-0110 (RITT Appeals Panel 1/20/09). Brian C. Balsofiore, CFE [email protected] 3 Id . at 3. Certified Fraud Examiner (401) 486-7145 4 Id . at 5. 5 RI Licensed Private Detective State v. Soulliere , T08-0045 (RITT Appeals Panel 11/5/08). 42 Novembe r/December 2011 Rhode Island Bar Journal 6 Id . at 2. 7 Id . 5. 8 State v. Ciccione , T02-0076 (RITT Appeals Panel 10/10/02). 9 State v. Joyce , T05-0158 (RITT Appeals Panel WORKERS’ COMPENSATION 1/31/06). 10 Id . at 14. AND SOCIAL SECURITY 11 Id . 12 Ciccione 6. CONSULTATION 13 Huntley v. State of Rhode Island , A.A. 10-0157 (6th Division District Court 3/17/11). 14 Id . at 1-2. 15 Id . at 11-12. ALBERT J. LEPORE, JR. 16 Id . at 13-14. 17 Id . at 14-15. 18 Id . at 21. 19 Jamestown v. White , T08-0141 (RITT Appeals COIA & LEPORE, LTD. Panel 2/19/09). 226 SOUTH MAIN STREET 20 Id . at 1-2. 21 Id . at 5. PROVIDENCE, RI 02903 22 Commonwealth v. Limone , 09-P-252 (Massachusetts Appeals Court 6/22/10). 4 01- 751- 5522 23 Id . at 2. 24 Cohen v. RIT T, A.A. 09-00084 (6th Division www.Coialepore.com District Court 11/19/09). 25 Id . 4. 26 Warwick v. Cianci , A.A. 09-202 (6th Division Email: aleporej @coialepore.com District Court 6/9/10). 27 Id . 3. 28 Id . 29 Id . 4-5. Attorney-to -A ttorney Referrals 30 North Providence v. Exarchos , T09-0119 (RITT Appeals Panel 10/13/10). 31 Id . at 4. 32 Id . at 8-9. 33 State v. DiPrete , T09-0072 (RITT Appeals Panel 8/31/10). 34 Id . at 8. 35 Id . at 11-12. 36 State v. Quattrucci , A.A. 09-153 (6th Division District Court 1/26/10). 37 Id . at 3-4. 38 DeCorpo v. State of Rhode Island , A.A. Stefanie A. Murphy, Esq. 10-0052 (6th Division District Court 2/22/11). ATTORNEY AT LAW 39 Id . at 9. 40 Id . at 10. 41 Id . at 11. is pleased to announce the opening of her new law firm, 42 Id . 43 Id . at 12. 44 Id . at 15-16. 45 Nicholas v. State of Rhode Island , A.A. Law Offices of 10-0208 (6th Division District Court 4/4/11). 46 Eldridge v. State of Rhode Island , A.A. Stefanie A. Murphy, LLC 10-0221 (6th Division District Court 4/14/11). 47 North Kingstown v. Beibe r, T08-0098 (RITT Appeals Panel 6/4/10). focusing on criminal and civil litigation. 48 Id . at 4. 49 Id . at 10. 50 Id . at 13. Telephone: (401) 316-9423 51 Id . at 17. 52 Haley v. State of Rhode Island , A.A. 10-132 Fax: (401) 633-6733 (6th Division District Court, 2/18/11). 53 Id . at 3. email: samurphy @samurphylaw.com 54 Id . at 10. 55 Id . at 14. Website: www.samurphylaw.com 56 The authors express their deep appreciation for the assistance of Kathleen Child and Jodi Van Sprang in the preparation of this article. O Licensed to practice law in Rhode Island, Connecticut and Massachusetts. Rhode Island Bar Journal Novembe r/December 2011 43 In Memoriam Charles Gurney Edwards, Esq. Business Regulation, Deputy Executive McLaughlin is survived by his wife, Charles Gurney Edwards of Providence Counsel, Office of the Governor, Marguerite, and his children Charles and Westport, Massachusetts passed and Hearing Officer, Administrative McLaughlin and his wife Belinda of away on August 20, 2011. He was the Adjudication Division, Department of Cranston, Paul R. McLaughlin and son of the late Gurney and Elizabeth Environmental Management. He was a his wife Victoria of Round Rock, TX , Edwards and husband for 60 years of member of the RI, MA, FL, & DC Bar Marguerite McLaughlin of Cumberland, Beverley Flather Edwards. He was the Associations. Along with his wife and John McLaughlin and his wife, Tracy father of Kate Mullen, Mark Edwards parents, he is survived by his sister Linda and his daughter, Lucianna, all of East and Amy Edwards and brother of Greer and her husband Michael Tilchin. Providence, and Mary McLaughlin George D. Edwards. Charles attended Ono and her husband Tracy Ono of Moses Brown and graduated from The Jennifer L. Madden, Esq. Honolulu, HI and his sister-in-law Loomis School, Brown University, and Jennifer L. Madden, 33, of Pepin Street, Adelaide McLaughlin. Harvard Law School. He served in the West Warwick, passed away on August U.S. Navy as a lieutenant on the USS 27, 2011. Born in San Diego, Ca, she was James L. Taft, Jr., Esq. Fletcher, DDE 445. He practiced law at the daughter of Richard E. Madden of James L. Taft, Jr., age 80, of Wakefield Edwards & Angell in Providence from West Warwick and Judith Reilly Madden and former Mayor of the City of 1959 to 1989 with a brief interval as of East Greenwich. Jennifer was an attor - Cranston, passed away on September Assistant Attorney General of Rhode ney with the law offices of Kirshenbaum 5, 2011 family. He was the beloved Island in charge of the civil division. and Kirshenbaum in Cranston; and husband of Sally Anne Fitzpatrick Taft Thereafter, he maintained a private Cetrulo & Capone LLP in Providence. and formerly resided in Cranston and practice in Little Compton until he She graduated from St. Xavier Academy Saunderstown. Born in Providence, retired in 2000. He worked primarily in Coventry, Boston University and Roger he was the son of the late Honorable as an estate attorney but was most Williams University School of Law. She James L. Taft and Katherine McGrath proud of his pro bono work with the was a member of the Rhode Island Bar Taft. A practicing attorney for over American Civil Liberties Union, defend- Association and the Massachusetts Bar fifty years, he was educated in ing such rights as pro-choice, Indian Association. Besides her parents, she is Cranston public schools before gradu - land rights, fair housing, and free survived by her two daughters, Juliana ating from LaSalle Academy. He grad - speech. He served on many boards in- and Mya Madden of West Warwick, a uated from the College of the Holy cluding Hospice Care of Rhode Island, brother, Joseph Madden of West Warwick Cross and from Boston College Law Providence Players, the Charitable Fuel and her paternal grandmother, M. School. Mayor Taft was admitted to Society, Little Compton Historical Elizabeth Madden of West Warwick. the Rhode Island Bar and to the Society and the Sakonnet Preservation United States District Court for the Association. He particularly enjoyed Charles H. McLaughlin, Sr., Esq. District of Rhode Island, United States amateur sports car racing, acting in Charles H. McLaughlin, Sr., 85, passed Court of Appeals for the First Judicial amateur theater, and travel. away on Sept 6, 2011. Charles was the Circuit, United States Tax Court and husband of Marguerite M. Mournighan the United States Supreme Court. He Jeffrey J. Greer, Esq. McLaughlin and the son of the late was a member of the Rhode Island Jeffrey J. Greer, 54, a resident of William Sr. and Albina Dragon and American Bar Associations. He Providence for over 20 years, passed McLaughlin. He was a graduate of began the practice of law with his late away on August 10, 2011. He was the Brown University and also received a father James L. Taft in Providence and beloved husband of Nancy Smith MAT degree from there. He graduated later practiced with his late brother-in Greer. Born in Chicago, IL , he was the from Boston University with an LLB law Bernard F. McSally. He led the son of Dr. David and Marion Clarich degree and practiced law in Providence firm of Taft & McSally as it operated Greer of Fall River. Mr. Greer was for 52 years. He was a member of the RI in Providence before its move to a graduate of Case Western Reserve Bar Association, American Bar Associa- Cranston where he later formed the University in Cleveland, Ohio and tion, the Rhode Island and American partnership of Taft & McSally LL P. Northeastern University School of Trial Lawyers Association. He was a lec - Mayor Taft is remembered for his Law in Boston. As an attorney, Jeff turer in Law at Roger Williams College. many years of appointed and elected held several legal positions within He was a communicant of St. Raymond’s service to the people of Rhode Island. state government including Chief of Church and served on the Finance He began his elective service as mem - the Appellate Division of the Office Committee. He was a founding member ber of the Cranston City Council 1959 of the Attorney General, Associate of St. Michael’s Council #4847, Knights and 1960. He was later elected to the Director and State Liquor Control of Columbus. He was Secretary for many Rhode Island Senate from Cranston Hearing Officer, Department of years for the Boy Scout Troop #82. Mr. for eight years from 1962-1970. He 44 Novembe r/December 2011 Rhode Island Bar Journal In Memoriam (cont.) Call us today to learn how our qualified business valuators have helped clients with: • Mergers/acquisitions • Divorce asset allocation served as Senate Minority Leader • Business purchase/sale • Adequacy of insurance from 1968-1970. He served as • Succession planning or • Litigation support Cranston’s Mayor from 1971-1979. buy/sell agreements • Financing Mr. Taft also served as Probate • Estate and gift taxes • Mediation and arbitration Judge and Town Solicitor of North Kingstown. He served on the Governor’s Advisory Commission on Judicial Appointments from Want a qualifed, expert 1985-1990 and was a contributing member of the Rhode Island Bar business valuation? Asso ciation Probate and Trust Committee. He served as Bond Count on us. Counsel Rhode Island and numer - ous municipalities and quasi-public agencies. Mayor Taft also served as Director for the Federal Home Loan Bank of Boston. He was a former member of the Quidnessett Country Club and Point Judith Country Club. He was a member of The Dunes Club and The University Club. A William J. Piccerelli, CPA, CVA N John M. Mathias, CPA, CVA N Kevin Papa, CPA, CVA former candidate for Governor of 144 Westminster Street, Providence, RI 02903 N 401-831-0200 N pgco.com Rhode Island, Taft served as a dele - gate to the Republican National Convention in 1972. He was an Elector for President and Vice President of the United States in 1972. Besides his wife of 56 years, NORTH PROVIDENCE he leaves four daughters: Hon. Sarah Taft-Carter and her husband Class A Office Space John C. Carter; Mary T. Rochford and Glenn F. Graf, Eleanor W. Taft and Jamie T. Costello and her hus - One, all-inclusive office in new law offices with high ceilings band J. Michael Costello. He was and beautiful wood work. Must see to appreciate. also the brother of Reverend Robert F. Taft of Rome, Italy, Conveniently off Route 295. Three conference rooms with Eleanor T. McSally of Wakefield library. Utilities, Parking, Receptionist, Cox Internet, and David W. Taft of Cranston. Copier & Fax all included. (4 01 ) 580-4 511 Please contact the Rhode Island Bar Association if a member you know passes away. We ask you to accompany your notification with an obituary notice for the Rhode PELLCORP INVESTIGATIVE GROUP, LLC Island Bar Journal. Please send mem - ber obituaries to the attention of Private Investigations Frederick D. Massie, Rhode Island Bar Journal Managing Editor, 115 Cedar Street, Providence, Edward F. Pelletier III, CEO Rhode Island 02903. Email: fmassie @ribar.com, facsimile: 401-421-2703, (401) 965-9745 telephone: 401-421-5740. www.pellcorpinvestigativegroup.com Rhode Island Bar Journal Novembe r/December 2011 45 Advertiser Index Ajootian, Charles – 1031 Exchange Services 39 Aon Liability Insurance 10 Balsofiore & Company, Ltd. – Forensic Accounting, Litigation Support 42 Boezi, Henry – Trademark/Copyright 12 Boyer Greene LLC – Law Firm Consultants 32 Briden, James – Immigration Law 42 Coia & Lepore, Ltd. – Workers’ Comp. 43 Cox Communications 26 Delisi & Ghee, Inc. – Business Appraisal 20 Dennis, Stephen – Workers’ Compensation 38 Dumas, David – Heirs/Genealogy 29 Engustian, Christine – Green Building Lawyer 39 Favicchio, Michael – Florida Legal 30 Goodman Shapiro & Lombardi LLC – Legal Services 7 Gregory, Richard – Attorney & Counselor at Law 19 Hart – Bankruptcy 32 Kirshenbaum & Kirshenbaum 18 LaBonte, Theresa – Interpreter 38 Lahti, Lahti & O’Neill, LLC 6 LawPay – Credit Card Processing 16 Marasco & Nesselbush – Social Security Disability/Medical Malpractice 34 Mathieu, Joan – Immigration Lawyer 21 McElroy Law Group – Employee Benefits Law 33 Mediation – Howe & Garside 15 Mediation & Arbitration – Joseph Keough 41 Messier & Massad, LLC 28 Mignanelli & Associates, LTD. – Estate Litigation 47 Morowitz, David – Law Firm 22 Murphy, Stephanie – New Law Firm 43 Ocean State Weather – Consulting & Witness 9 Office Condominium – For Sale 30 Office Space – North Providence 45 Office Space – Warwick 8 PellCorp Investigative Group, LLC 45 Pfieffer, Mark – Alternate Dispute Resolution 21 Piccerelli, Gilstein & Co. – Business Valuation 45 Providence Valuation, LLD – business appraisal & forensic accounting 9 Revens, Revens & St. Pierre – Bankruptcy 14 Revens, Revens & St. Pierre – Workers’ Compensation 15 Rhode Island Foundation 40 Rhode Island Private Detectives LLC 41 R. J. Gallagher – Disability Insurance 29 Ross, Roger – Title Clearing 34 Sciarretta, Edmund – Florida Legal Assistance 8 Select Suites – Calart Tower – Cranston 28 Soss, Marc – Florida Estates/Probate/ Documents 40 Souza, Maureen – Drafting/Research 33 StrategicPoint – Investment Advisory Services 12 Verdix 14 Zoning Handbook – Roland F. Chase 41 46 Novembe r/December 2011 Rhode Island Bar Journal 10 Weybosset Street, Suite 205 • Providence, RI 02903 Tel: (401) 455-3500 Fax: (401) 455-0648 www.mignanelli.com Wills/Trusts Estate Tax Planning Estate Settlements Trusts for Disabled Persons Personal Injury Settlement Trusts Anthony R. Mignanelli Attorney at Law All Probate Matters The R.I. Supreme Court Licenses all lawyers in the general practice of law. The court does not license or certify any lawyer as an expert or specialist in any field of practice. Rhode Island Bar Journal Novembe r/December 2011 47 You may ask yourself... How does the Rhode Island Bar Association help me? THE RHODE ISLAND BAR ASSOCIATION is much more than a name. Your Bar consists of people and programs dedicated to enriching and enhancing your practice and your life. Through the thoughtful, caring leadership of volunteer attorneys, the Bar develops offerings designed specifi cally for Rhode Island lawyers. And, with the excellent assistance of the Bar’s friendly and professional staff, your Bar creates and delivers a wide range of programs and services tailored to meet your needs. Your Bar helps you professionally through… Your Bar helps you personally through… s Fully interactive Bar website connecting you to your s Opportunities for pro bono service to those who need it free law library, latest news, seminar information and the most, coupled with free training and mentoring in registration, committee meeting schedules and more at important practice areas www.ribar.com s Lawyers Helping Lawyer Committee programs including s Superb Continuing Legal Education (CLE) seminars offered the Bar’s partnership with Resource International live and online throughout the year Employee Assistance (RIEAS) offering free-to-members s Free, 24-hours-a-day, 7-days-a-week, online law library services for confi dential help, information, assessment services with Casemaker and referral for a wide range of personal concerns s Terrifi c avenues for working with other members of the s SOLACE (Support of Lawyers, All Concern Encouraged) Bar and the Bench on a wide range of Bar Committee allows Bar members to offer or ask for aid and assistance efforts to or from their colleagues s Outstanding Lawyer Referral Service (LRS) connections to s Law Related Education (LRE) volunteer opportunities clients in search of representation to visit classrooms with judges on Law Day and assist s Myriad membership benefits offering preferential products educators throughout the year and services negotiated for you by your Bar leaders s Respected forums for sharing your knowledge and opinions in every issue of the Rhode Island Bar Journal s Informed answers to legal questions through the Bar’s Online Attorney Resource (OAR) center’s volunteer attorneys. s Wonderful Annual Meeting offerings ranging from Same as it ever was... excellent CLE seminars to profession-oriented product and service providers and more s Powerful presence in legislative matters affecting the practice of law ...Only better s Instant client and colleague connections through the Bar website’s Attorney Directory Take advantage of these benefi ts today through the Bar’s website at www.ribar.com, or telephone the Bar today at 401-421-5740