Duffy v. Rhode Island State Pilotage Commission
Duffy v. Rhode Island State Pilotage Commission
Opinion of the Court
In 1973, Arthur L. Duffy, Jr. and Carl T. Ohrn, Jr. applied to the State Pilotage Commission (the commission) for licenses to pilot vessels on Rhode Island waters. The commission denied licensure because neither applicant satisfied G. L. 1956 (1970 Reenactment) §46-9-8’s requirement for residence in this state for at least 5 years
More than 20 days after the expiration of the time for filing a claim of appeal, the commission, recognizing the potential deficiency of the vehicle selected by it for seeking review in this court, moved that its notices of appeal be amended “to foe read as a Petition for a Writ of Certiorari.” We granted the motion and issued the writ, without prejudice to the applicants’ right to argue at the hearing on the merits that we had acted improvidently in so doing. Duffy v. R. I. State Pilotage Comm’n, 114 R. I. 941, 334 A.2d 425 (1975).
At oral argument the applicants availed themselves of that reserved right. In support of their argument that the controlling statute
The commission nonetheless argues that to insist upon the enforcement of our established rule will, at least for the moment, prevent appellate review of an important constitutional question. But this result could have been avoided had the Attorney General, the commission’s counsel throughout these proceedings, invoked the certification procedure provided for by G. L. 1956 (1969 Reenactment) §9-24-27
The commission also contends that at the time it claimed its appeal the Attorney General had only been in office for several weeks and had inherited from the previous administration a “chaotic” filing system in the civil division as well as a “great number of cases requiring immediate attention * * But those conditions, though certainly not ideal, are not analogous to those in Hester v. Timothy, 108 R. I. 376, 275 A.2d 637 (1971), where we held that common law “* * * certiorari may be used to review a case where it appears that a person’s right of appeal has been lost because of illness or some accident for which he was not responsible. MacKenzie & Shea v. R. I. Hospital Trust Co., 45 R. I. 407, 122 A. 774."
In short, the commission has not persuaded us that in •these circumstances we should depart from our established rule by articulating its claim of appeal as a petition for a
The writ of certiorari heretofore isssued is quashed as having been improvidently granted; the commission's appeal, to the extent it retains that character, is denied and dismissed; and the papers in the case are remanded to the Superior Court.
Mr. Chief Justice Bevilacqua and Mr. Justice Paolino did not participate.
In pertinent part G. L. .1956 (1970 Reenactment) §46-9-8 reads as follows:
“Every person who shall apply after April 27, 1956 for a license to act as a pilot in the waters of this state shall be a citizen of the United States; [and] shall have resided in this state for the period of at least five (5) years prior to the filing of his application * *
General Laws 1956 (1969 Reenactment) §42-35-16, as amended by P. L. 1972, ch. 169, §30 provides:
“Any party in interest, if aggrieved by a final judgment of the superior court rendered in proceedings brought under '§42-35-15, may, within twenty (20) days from the date of entry of such judgment, petition the supreme court of the state of Rhode Island for a writ of certiorari to review any questions of law involved. The petition*175 for a writ of certiorari shall set forth the errors claimed. Upon the filing of such a petition with the clerk of the supreme court, the supreme court may, if it sees fit, issue its writ of certiorari to the superior court to certify to the supreme court the record of the administrative proceeding under review, or so much thereof as was submitted to the superior court by the parties, together with any additional record of the proceedings in the superior court.”
The relevant part of G. L. 1956 (1969 Reenactment) §9-24-27 provides:
“Whenever in any proceedings, civil or criminal, legal or equitable, in the superior court or in any district court * * * the constitutionality of an act of the general assembly shall be brought in question upon the record, which in the opinion * * * of the attorney-general, if the state be a party to such proceeding * * * is of such doubt*176 and. importance, and so affects the merits of the controversy that it ought to be determined by the supreme court before further proceedings, the court in which the cause is pending shall certify such question or motion to the supreme court for that purpose and stay all further proceedings until the question is heard and determined ‡ »
In Hester v. Timothy, 108 R. I. 376, 275 A.2d 637 (1971), a statutory petition for certiorari in a zoning case, although properly addressed to the clerk of this court, was mistakenly delivered by the mailman to the clerk of the Superior Court. That error was then compounded by the striking of the words “Supreme Court” from the title of the petition ■and substituting therefor the words “Superior Court.” By the time these errors were discovered, the petition, although originally timely and in proper form, was no longer so, and in those circumstances we overlooked the deficiencies and articulated the petition as if it were for common law certiorari.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.