In re Request for Advisory Opinion to the Governor and the Leaders of the House of Representatives and the Senate.
His Excellency, Edward D. DiPrete, Governor the State of Rhode Island, The Honorable Matthew J. Smith, Speaker of the Rhode Island House of Representatives, and the Honorable John C. Revens, Jr., Majority Leader of the Rhode Island Senate:
We have received your request seeking the advice of the justices of this court in accordance with the provisions of section 2 of article XI of the amendments to the Rhode Island Constitution. The question posited is as follows:
“May a joint resolution such as 85-S16 entitled, “Joint Resolution Vacating the Judgeship of Chief Judge (sic) Joseph A. Bevilacqua,” be acted upon if the 1985 General Assembly session is reconvened pursuant to Joint Resolution No. 85-S1064 in light of Section 4 of article X requiring that “such Resolution shall not be entertained at any other than the annual session for the election of public officers * * *?”
Before engaging in a discussion of this question, a review of the matters which occurred prior to your request is in order.
On January 1, 1985 Senator Robert T. Motherway introduced a resolution entitled, “Joint Resolution Vacating the Judgeship of Chief Justice Joseph A. Bevilac-qua.” The resolution declares the office of Chief Justice Bevilacqua vacant. The Senate referred the resolution to the Senate Committee on Special Legislation.
Following the 1984 general elections in the State of Rhode Island, the newly elected Attorney General wrote to the chairman of the Rhode Island Commission on Judicial Tenure and Discipline requesting an investigation by the Commission into the conduct of Chief Justice Joseph A. Bevilacqua.
The Rhode Island Commission on Judicial Tenure and Discipline investigated and held hearings which resulted, on June 20, 1985, in the following disposition which was agreed to by Chief Justice Bevilacqua:
“1. The Commission and the respondent agreed that Chief Justice Joseph A. Bevi-lacqua, Sr., has engaged in conduct that violates Canons 4 and 29 of the Canons of Judicial Ethics and that such conduct has brought his judicial office into seri[1318]*1318ous disrepute. He is hereby PUBLICLY CENSURED for those violations.
“2. Chief Justice Bevilacqua acknowledges that it is essential for a judge to avoid the appearance of impropriety and to adhere strictly and scrupulously to the Canons of Judicial Ethics.
“3. After extensive investigation, including a review of the opinions of the Rhode Island Supreme Court during the tenure of Chief Justice Bevilacqua, the Commission has found no evidence, and has no reason to believe, that the conduct referred to in paragraph 1 has in any way affected any of his judicial decisions. “4. The Commission and the respondent agree that Chief Justice Bevilacqua will abstain from performing the official duties of his office for a period of four (4) months, beginning on July 1,1985 and ending on October 31, 1985.
“5. Chief Justice Bevilacqua agrees that he will forego all compensation during the four-month period referred to in paragraph 4 and will execute any and all documents necessary to effectuate this intent * * * “
“6. Chief Justice Bevilacqua acknowledges and accepts the authority of the Commission with respect to all proceedings herein and waives any challenge thereto.
“7. On execution of this Order of PUBLIC CENSURE, the proceedings herein are terminated.
“8. This Order is entered by the unanimous vote of the thirteen (13) Commissioners in attendance and with the approval of the Commission’s Special Counsel, Arthur J. Goldberg.”
Subsequently, on June 21, 1985, the 1985 session of the General Assembly adjourned without the Senate Committee on Special Legislation acting on Resolution 85-S116. The Joint Resolution of Adjournment, No. 85-S1064, provided that each House of the General Assembly may be reconvened by the respective legislative leaders upon three days notice to continue the 1985 session.
On October 11, 1985, this court received the aforementioned request for an advisory opinion. On November 25, 1985, we responded to said request by stating that the question should be answered in the negative. This opinion sets forth the basis for our response, including a discussion of the propriety of the request.
I
THE PROPRIETY OF THE REQUEST
Although the petitioners’ request involves a matter of the utmost importance, there are some preliminary procedural issues which we desire to put in context before we address the merits of this inquiry.1
One procedural deficiency arising from this particular request is that the petition was jointly made by the leaders of each House and the Governor. This court will not render an advisory opinion except upon the written request of the Governor or (not and) of either House of the General Assembly. Industrial National Bank of Rhode Island v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 206 (1967). We are constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the [1319]*1319questions propounded concern the constitutionality of existing statutes which require implementation by the Chief Executive. However, neither of those coordinate authorities have standing to propound questions which are clearly the prerogative of the other. Opinion to the House of Representatives, 433 A.2d 944 (R.I.1981). Irrespective of whether the legislative or executive branch is properly before us, the joint nature of the request would be inappropriate for review by this court. Moreover, even if this court were to view these requests to be bifurcated, each request as propounded is improper and proeedurally deficient.
Referring specifically to the request by the Speaker and the Senate Majority Leader, the following language from the Reply of The Supreme Court To A Communication From Certain Members of The House of Representatives in The General Assembly, 58 R.I. 51, 54, 191 A. 259, 271 (1937) is instructive:
“We are not unmindful of the generally accepted principle of the law of legislative assemblies that the house means a majority of the house. That principle is also the constitutional law of this state, (art. IV, sec. 6). Generally, no business of any kind can legally be performed by any number less than a majority, except to adjourn or compel the attendance of absent members. In other words, majority rule is firmly imbedded in our fundamental law and governs the house of representatives.”
The court in that case declined to render an advisory opinion because the petition only constituted an attempt by some members of the house of representatives to secure the court’s advice, and not a formal and collective action by the house as required by article XII, section 2 of the Rhode Island Constitution. Similarly in the case at bar, the request by the petitioners was brought before this court by only the leaders of each house and the governor. No formal action was taken in a collective fashion by either branch of the General Assembly in petitioning the court on this matter. Hence, the request from the House Speaker and the Senate Majority Leader fails to meet the standards enunciated.
As far as the Governor’s request is concerned, there are a few principles regarding the rendering of advisory opinions which should be articulated. First, a question or questions propounded to the Supreme Court must have some relationship to the official duties of the coordinate branch propounding the questions. Opinion to the Governor, 109 R.I. 289, 284 A.2d 295 (1971). Second, this court should avoid giving advisory opinions in circumstances not constitutionally mandated; thus, giving such opinions in matters unconnected with the official function of the requesting coordinate branch would be gratuitous. Id. Third, we only advise the chief executive in those instances in which the questions propounded have a bearing upon a present constitutional duty awaiting performance by the Governor. In re Request for Advisory Opinion, 472 A.2d 301, 302 (R.I.1984). In light of these legal precepts and a review of the request before us, it is clearly evident that the Governor has no present constitutional duty awaiting performance in these circumstances. Furthermore, since according to article X, section 4 of the Rhode Island Constitution, the Governor plays no role in the removal of a supreme court justice, his request does not comport with the law.
In spite of the procedural deficiencies inherent within the petition before us, and in view of the fact that either branch of the Legislature could independently, by majority vote, propound the same question to this court, we shall exercise our discretion and waive the defects so that we can address the profoundly important substantive issues raised by the petitioners’ request. We must reiterate that we shall not consider this action as a precedent indicating that in the future we shall render an advisory opinion when the requesting petition is improperly before this court or pro[1320]*1320cedurally defective. Our decision, however, to go forward with a judicial review of this matter is solely attributable to the constitutional and public importance of the question propounded to this court.
II
WHETHER THE GENERAL ASSEMBLY HAS THE POWER TO REMOVE A JUSTICE OF THE SUPREME COURT BY A JOINT RESOLUTION DECLARING THE OFFICE VACANT, IN THE LIGHT OF THE PROVISIONS OF ARTICLE X, SECTION 4 OF THE RHODE ISLAND CONSTITUTION WHICH STATES THAT “SUCH RESOLUTION SHALL NOT BE ENTERTAINED AT ANY OTHER THAN THE ANNUAL SESSION FOR THE ELECTION OF PUBLIC OFFICERS.”
For reasons fully set forth below, we are of the opinion that article X, section 4 expressly limits the legislature’s power to remove a justice of the Supreme Court to that day upon which “the annual session for the election of public officers” took place. As the result of constitutional amendments, that session has been eradicated and because of its demise the power to remove has been extinguished.
On the matter of constitutional interpretation, the United States Supreme Court said in Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 723, 9 L.Ed. 1233 (1838) that “[i]n the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it was framed and adopted * * .” Therefore, an exposition of the changes in the structure of government in Rhode Island as it had evolved from the early years of the colony to the middle 1800s is helpful in appreciating the political climate in which article 10, section 4 was adopted into the 1842 Constitution.
Rhode Island, unlike most of its neighbors, was not founded as a controlled experiment under the authority of the King of England or his deputies.2 It was founded without official sanction by different groups of people who came from other colonies for reasons personal to them. They all purchased the land from the Indians who were living here rather than obtaining it by a grant from the King.
These different groups were made up of people who were quite average except for the fact that they were out of step with the prevailing rigid religious attitudes of the settlements that they had left voluntarily or from which they were expelled. They were Baptists, Antinomians,3 Arminians,4 Quakers, Catholics and Jews and all of them were highly individualistic and independent.
These groups established towns in Providence, Portsmouth, Newport and Warwick, and in the beginning, no statewide organization or colonial government existed. The first General Assembly was simply a gathering of men who were eligible to vote in the towns from which they came. It was the towns who called the central state government into being and the early acts of the general assembly had to be sent back to the different cities and towns for approval.
In 1663, the Charter of Charles II validated Rhode Island’s right to exist. By that date, the people were electing a Governor and a Deputy Governor and ten assistants at large. Each of the towns also [1321]*1321elected deputies or representatives. The right to vote was easily obtained by owning a small amount of property. Colony wide elections took place in the Spring and Fall. The Governor, Deputy Governor and assistants stood for election in May and the deputies were elected in October. The voting took place in the town meetings and ballots were signed before the magistrates. Ballots or proxies were taken to Newport for the official tally. By the end of the 1600’s, most of the other General Offices of the state had been created, the Secretary of State, the Attorney General and the General Treasurer.
By 1700 or shortly before, the ten assistants at large had evolved into an upper house that later became the Senate and the deputies from the towns had become a lower house that became the House of Representatives. The Governor and Deputy Governor were members of the upper house and had very little executive authority. Their offices were primarily ceremonial. The two houses sitting together in “Grand Committee” made all of the appointments to office and distributed patronage.
Frequency of election, limited executive powers, the legislative appointment of the judiciary were salient elements of the charter government. Freedom of religion, press, assembly and petition were a part of the Rhode Island tradition for nearly a century before they were written into the United States Constitution. Government was kept small in size and close to the people. This was fostered by having the legislative sessions move around the state. Until the middle of the 1800’s, the legislators met at Newport, Bristol, Providence, East Greenwich and Kingston. From about 1850 to 1893, state government alternated between Newport and Providence. From 1893 on, legislative sessions were held in Providence only.
Our constitutional development involving the structure and operations of state government reflected this evolution. In particular, the constitutional framework establishing the timing and location of General Assembly sessions and the method by which public officers would be elected has been the subject of substantial amendment. These amendments are at the heart of the issue before us today.
Article IV, sec. 3 of the original constitution that was adopted in 1842 and became effective in 1843 provided that:
“There shall be two sessions of the general assembly holden annually: one at Newport, on the first Tuesday of May, for the purposes of election and other business; the other on the last Monday of October, which last session shall be holden at South Kingstown once in two years, and the intermediate years alternately at Bristol and East Greenwich; and an adjournment from the October session shall be holden annually at Providence.”
The election referred to in art. IV, sec. 3 was the annual session for the election of public officers. At that time, all general officers and all Rhode Island Senators and Representatives stood for popular election annually on the first Wednesday in April under the provisions of article VIII, section 1. Under article VIII, sections 7 and 10, any person who sought election to one of these offices was required to obtain a majority of the votes. If no person received a majority of the votes cast for a particular office, the Legislature, sitting in grand committee, would select one of the two top vote get-ters to fill that office. Because the terms of office began on the first Tuesday in May as provided in art. VIII, sec. 1, it was only logical that a vacancy in office created by the failure of any candidate to obtain a majority of the votes would be dealt with on the same day by the grand committee at the May session convened “for the purpose of election and other business”, as prescribed by art. IV, sec. 3. This is because that particular session also began on the first Tuesday in May, pursuant to art. IV, sec. 3.
Eleven years later, in 1854, art. IV, sec. 3 of the original constitution was supersed[1322]*1322ed by article III of the amendments. It provided:
“There shall be one session of the General Assembly, holden annually, commencing on the last Tuesday in May, at Newport, and an adjournment from the same shall be holden annually at Providence.”
This article remained hi effect until 1893 when article III of amendments was in turn superseded by article XI of the amendments. The new amendment contained several provisions regarding election and terms of office and it provided for one session of the General Assembly to be held in Providence, commencing on the first Tuesday in January of each year. The most important aspect of this constitutional evolution, for our purposes, was the enactment in 1893 of article X of the amendments which provides that all elections in the state should be by plurality not majority. This amendment divested the General Assembly of its former constitutional duty to hold elections in grand committee for the purpose of choosing between the two highest vote getters in an election in which neither had been able to capture the office by a majority of the votes.
In 1900, article XI, sec. 2 of the amendments changed the time on which the general election would be held but not the one year term of office. It provided for annual elections to be held on the Tuesday next after the first Monday in November. Finally, in 1912, article XVI, sec. 1 of the amendments, provided that, beginning with 1912, elections would be held biennially.
In approaching the issue before us today, we believe that “the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties and rights, with all the lights and aids of contemporary history; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 536, 609, 10 L.Ed. 1060 (1842). Having followed this guidance given us by the United States Supreme Court, we conclude that the adoption of biennial elections, coupled with the change to plurality elections, consigned to history the “annual session for the election of public officers.” Because this session no longer takes place, we do not believe that the Legislature today retains the removal power contained in article X, section 4, of the Constitution. That section provides:
“Election and removal of supreme court judges * * * Impeachment. The judges of the supreme court shall be elected by the two houses in grand committee. Each judge shall hold his office until his place be declared vacant by a resolution of the general assembly to that effect; which resolution shall be voted for by a majority of all the members elected to the house in which it may originate, and be concurred in by the same majority of the other house. Such resolution shall not be entertained at any other than the annual session for the election of public officers; and in default of the passage thereof at said session, the judge shall hold his place as is herein provided. But a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor.” (Emphasis added).
When we interpret the constitution, we are guided by the same rules of construction that apply to the construction of statutes. City of Jacksonville v. Continental Can Co., 113 Fla. 168, 151 So. 488 (1933). See also Opinion to the Governor, 44 R.I. 275, 117 A. 97 (1922). The general rule is that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of time was intended as a limitation of the power of the officer. In re the Census Superintendent, 15 R.I. 614, 616, 15 A. [1323]*1323205, 205 (1885) (citing People v. Allen, 6 Wendell 486 (1831)).
The language of art. X, sec. 4 expressly limits the removal power. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), Chief Justice Marshall stated that “[i]t cannot be presumed, that any clause in the constitution is intended to be without effect; and therefore, such a construction is inadmissible, unless the words require it.” Id. at 174, 2 L.Ed. at 72. We believe those words are appropriate to the situation at hand. In article X, section 4, the authors of the constitution made it absolutely clear that the Legislature could not consider the joint resolution for removal of a Supreme Court Justice “at any time other than the annual session for the election of public officers.” Their choice of the words “shall not be entertained,” coupled with the fact that no such limitation was placed on the legislature’s power to impeach, in our opinion, renders this conclusion inescapable. Moreover, “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary sense as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.” United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 222, 75 L.Ed. 640, 644 (1931). See also The Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929); Edwards v. Cuba R. R. Co., 268 U.S. 628, 45 S.Ct. 614, 69 L.Ed. 1124 (1925); Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906); Lake County v. Rollins, 130 U.S. 662, 9 S.Ct. 651, 32 L.Ed. 1060 (1889); Tennessee v. Whitworth, 117 U.S. 139, 6 S.Ct. 649, 29 L.Ed. 833 (1885); Craig v. Missouri, 29 U.S. (4 Pet.) 410, 9 L.Ed. 903 (1830); Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 6 L.Ed. 678 (1827); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 4 L.Ed. 97 (1816); Story, Commentaries on the Constitution § 451 (5th ed. 1891); Cooley’s Constitutional Limitations, 61, 70 (2nd ed.).
While one might argue that the inadvertent repeal of a power is not lightly to be assumed, in this instance, between 1843 when the Constitution became effective and 1893, when the need for the elective function of the General Assembly was finally ended by article XI of the amendments, it is significant that half a century had passed without the removal of a single justice. Without question, those who adopted the amendment were eliminating the occasion for the exercise of a power that had fallen into complete disuse.
We are not unmindful of the fact that, in 1935, the Legislature momentarily attempted to resurrect the power to vacate and it arbitrarily selected the first day of the legislative session as appropriate for its exercise. Because the justices who were purportedly removed resigned their offices and accepted pensions that were paid to them for life, that action was never challenged and the question of whether the Legislature had the removal power after 1893 was never adjudicated in any forum. Consequently, that event does not serve as a persuasive precedent either historically or legally.
The language of article X, section 4 makes the time for the exercise of the power of removal vital to the power itself. With the elimination of the time and the occasion for the exercise of the power, it ceased to exist.
We believe that the logical interrelationship of the amendments in our Constitution’s evolution compels only one conclusion. The power of the Legislature to remove Supreme Court justices by joint resolution was limited from the very beginning, conditioned specifically on the occurrence of a legislative session that met annually for the election of public officers. With the effective abolition of that session in 1854, and more certainly in 1893, there was and is no longer any constitutionally ordained forum in which this power can be exercised.
[1324]*1324III
IN THE LIGHT OF THE CIRCUMSTANCES OF ITS INTRODUCTION, IS JOINT RESOLUTION 85-S16, WHICH PURPORTS TO VACATE THE POSITION OF CHIEF JUSTICE JOSEPH A. BEVILAC-QUA, VIOLATIVE OF THE PROHIBITION, CONTAINED IN ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE UNITED STATES, AGAINST THE PASSAGE BY ANY STATE OF A BILL OF ATTAINDER?
The court must take judicial notice of the well-known fact that at the time of the introduction of Joint Resolution 85-S16, entitled “Joint Resolution Vacating the Judgeship of Chief Judge [sic] Joseph A. Bevilacqua,” accusations of misconduct had been leveled against the Chief Justice because of his alleged association with persons of criminal background. These accusations resulted in consideration of possible disciplinary action against the Chief Justice by the Commission on Judicial Tenure and Discipline of this state. For purposes of this opinion, it is not necessary to consider the details of the hearings and consideration by the Commission on Judicial Tenure and Discipline since we have already noted that a resolution of the issues before the commission was reached by agreement of the commission and the Chief Justice upon recommendation of its counsel, former United States Supreme Court Justice Arthur Goldberg, and counsel for the Chief Justice as set forth in the first portion of this opinion. Under this agreement, the Chief Justice removed himself from office for a period of four months without pay. That abstention from judicial duties terminated November 1, 1985.
Although the joint resolution does not specify the reason for removal of the Chief Justice, it is clear beyond doubt that the basis for the resolution was a response to the charges of misconduct that were also considered by the commission.
Article I, section 9 of the Constitution of the United States denies to Congress the power to pass a bill of attainder or ex post facto law. Article I, section 10 of the Constitution places the same prohibition upon the states. The bill of attainder was well known to the framers of the Constitution of the United States and the prohibition thereof was designed to prevent the abuses of the legislative power that had frequently taken place over the centuries in England. As it was known and implemented during the 16th, 17th and 18th centuries, the bill of attainder was directed to persons who were believed by members of Parliament to have sought to overthrow the royal government or to have given aid or assistance to those who were so engaged. See, e.g., 8 Jac. I, c. 2; 10 & 11 Will. 3, c. 13; 13 Will. 3, c. 3; 9 Geo. 1, c. 15. Normally, the bill of attainder by Parliamentary act sentenced to death one or more specific persons or those who could be determined by description to have participated in the insurrection. Coupled with the death sentence, the bill of attainder would normally impose “corruption of blood.” This meant that the attaint-ed party’s heirs could not inherit his property. United States. v. Brown, 381 U.S. 437, 441, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484, 487-88 (1965); 3 Coke, 1st Inst. (on Littleton) 565 (Thomas ed. 1818). As a corollary to the bill of attainder, Parliament had the power to enact and did enact a “Bill of Pains and Penalties.” Such a bill was identical to the bill of attainder except that it provided a penalty less than death. Such a penalty might include banishment, deprivation of the right to vote, or exclusion of the designated person’s sons from membership in Parliament. Brown, 381 U.S. at 441-42, 85 S.Ct. at 1711, 14 L.Ed.2d at 488. Bills of attainder and pains and penalties were not limited to English practice but were extensively utilized during the American Revolution when all thirteen newly independent states enacted statutes directed against those that were were loyal to the British Crown. Id.
The bill of attainder clause was designed by the framers to insure that the Legislature did not overstep its bounds in imposing punishment upon individuals without [1325]*1325hearing or trial. Alexander Hamilton observed:
“Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disenfranchisement, and banishments by act of the legislature.” The Federalist, No. 48, 383-84 (Hamilton ed. 1880).
It was a frequently expressed opinion, during the period succeeding the adoption of the Constitution, that the Legislature was not suited by its numbers and organization to try with coolness, caution and impartiality a criminal charge, especially in those cases in which popular feeling was strongly excited. See 1 Cooley, Constitutional Limitations, 536-37 (8th ed.1927). As early as the decision in Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136, 3 L.Ed. 162, 178 (1810), it was stated in dictum that it was “the peculiar province of the legislature, to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments.”
Following the Civil War, the Supreme Court of the United States considered two cases: Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867), and Ex Parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867). In Cummings, the Court determined that a provision of the Missouri constitution which deprived a Catholic priest of his right to administer the sacraments of his church and to serve as a minister of his faith, without taking an oath that he had never engaged in acts constituting loyalty to the Confederacy, was a violation of the attainder clause. In Garland, the Court, for similar reasons, voided a requirement by the Congress that a person could not practice law without subscribing to a loyalty oath of equivalent import. In both cases the Court determined that the attainder clause was applicable to bills of pains and penalties as well as to the traditional death penalty of a bill of attainder. Garland, 71 U.S. (4 Wall.) at 377, 18 L.Ed. at 369-70; Cummings, 71 U.S. (4 Wall.) at 323, 18 L.Ed. at 363. In summary, the Court observed in Cummings:
“The Constitution deals with substance, not shadows. Its inhibition was levelled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment, under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding. 71 U.S. (4 Wall.) at 325, 18 L.Ed. at 363.
Eighty years later, the Supreme Court again considered the attainder clause in United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). In that case Congress had passed, after some resistance by the Senate, an appropriation bill cutting off the salaries of three named individuals, Lovett, Watson and Dodd, who were suspected by investigators of the Dies Committee of subversive activities and of association with “communist front organizations.” In striking down this act as violative of the Bill of Attainder clause, the Court reiterated the holding in Cummings v. Missouri, supra, that a bill of attainder is a legislative act that inflicts punishment without a judicial trial and that the bill of attainder includes a bill of pains and penalties. The Court went on to determine that the prohibition by Congressional act of federal employment by three named individuals with the concomitant stigma upon their reputations fell precisely within the bill of attainder prohibition. Justice Black, speaking for the Court, suggested:
“Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punish[1326]*1326ment without trial by duly constituted courts.” United States v. Lovett, 328 U.S. at 317, 66 S.Ct. at 1079-80, 90 L.Ed. at 1260.
Finally, in United States v. Brown, supra, Chief Justice Warren, quoting Lovett, 328 U.S. at 315-16, 66 S.Ct. at 1079, 90 L.Ed. at 1259 with approval, reiterated that “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” United States v. Brown, 381 U.S. at 448-49, 85 S.Ct. at 1715, 14 L.Ed.2d at 492.
In Brown, the Court struck down a statute that made it a criminal offense for a person who had been a member of the Communist party to serve as an officer or (except in clerical or custodial positions) as an employee of a labor union. Although the persons were not specified by name, the Court held that the infliction of a deprivation upon one described as a member in the Communist party as opposed to specifically named individuals did not preclude its violation of the attainder clause. The Court stated that under our Constitution Congress possesses full legislative authority, but the task of adjudication must be left to other tribunals.
For bill of attainder purposes, a justice of the Supreme Court would have a fully protectible interest in his employment and the ancillary benefits incident thereto. When one considers that for a period of one hundred forty-four years a justice of the Supreme Court had a fully justified expectation of employment until retirement, resignation or death, with only one exception in 1935 (in which full retirement benefits were accorded the justices), it seems clear beyond doubt that a property interest has been established even for purposes of due process. See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); VanAlstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv.L.Rev. 1439, 1457 (1968); Reich, The New Property, 73 Yale L.J. 733 (1964). Even such a case as Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), does not deprive a government employee of due process, but only allows the government agency to determine what process is due for purposes of a pre-termi-nation or post-termination hearing. Arnett does not suggest that removal without any hearing at all would meet the requirements of due process. In any event, the analysis in the instant case is properly a bill of attainder rather than a due process question. We are of the opinion that the removal of a Supreme Court justice for misconduct, without an opportunity to be heard, by a majority of both Houses of the Legislature would not meet either safeguard.
It must be noted that in responding to the instant request for advisory opinion, we deal with a provision of the Constitution of the State of Rhode Island as the Supreme Court of the United States in Cummings v. Missouri dealt with a provision of the Missouri Constitution. When the Constitution of Rhode Island was first adopted in 1842, Cummings v. Missouri, supra, and later cases expounding upon the attainder clause by the United States Supreme Court, had not yet been decided. Moreover, as indicated in earlier portions of our response to the request for advisory opinion, the purpose of article X, section 4, of the Constitution of Rhode Island, dealing with election and removal of the judges of the Supreme Court, did not, at least facially, relate necessarily to punitive actions by the Legislature in respect to the removal of a justice. Prior to the adoption of the Constitution of 1842, Supreme Court justices were elected annually. This provision was designed to increase the tenure of such judges to an indefinite term which might terminate by death, resignation, or removal, as well as by impeachment. Opinion to the Governor, Re The Election of Justices of the [1327]*1327Supreme Court, 23 R.I. 635, 51 A. 221 (1902). The framers of the Rhode Island Constitution and the justices who rendered the advisory opinion in 1902 did not consider whether this provision relating to election and removal of judges would be subject to the limitations of the attainder clause of the Federal Constitution.
It is, of course, theoretically possible that a judge might have been removed from office without any suggestion of misconduct or stigma upon his reputation. Such a question, however, cannot be considered in a vacuum in light of the fact that no justice of the Supreme Court was removed from office from the adoption of our Constitution in 1842 until the attempted removal of all five justices in 1935 as a result of real or fancied shortcomings on the part of such justices. It is also a matter of historical, fact that the removal of the justices in 1935 was not challenged because all of the justices voluntarily resigned when offered paid retirement for the rest of their lives.
Consequently, we are faced with a situation in which the provision allowing removal of justices has not been implemented in the face of a challenge for a period of one hundred forty-four years. As with removal by address in Connecticut, Maine and Massachusetts, the remedy is seldom exercised.5
It is not surprising that the framers of the Rhode Island Constitution were not particularly sensitive to the limitations of the Federal Constitution since in 1842 those limits were scarcely perceptible. The Bill of Rights at that time was a limitation solely upon federal as opposed to state power. See Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). This doctrine was to be unchanged for many years. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937); Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L.Ed. 394 (1873). Although the bill of attainder clause was a direct limitation upon state power, Cummings v. Missouri, supra, and In re Garland, supra, were not decided until twenty-five years after the Rhode Island Constitution was adopted.
In any event, the limitation of the attainder clause would, in our judgment, completely preclude the passage of any resolution purporting to remove the Chief Justice or any justice of this court in a context in which such removal would be construed as punishment for past misconduct by implementation of the provisions contained in article X, section 4, which provides for a majority vote of both Houses of the General Assembly.
However, this opinion should in no way be construed as indicating that the attainder clause would inhibit application of the provisions of article X, section 4, which states:
“But a judge of any court shall be removed from office if, upon impeachment, he shall be found guilty of any official misdemeanor.”
The latter provision refers to article XI of the Constitution which deals with impeachments. Such article provides in section 1 for impeachment by the House by a vote of two-thirds of all the members and for a trial of such impeachment by the Senate. The process of impeachment would in our opinion not transgress the bill of attainder clause because it gives to the party accused an opportunity to be heard and to present evidence in his own defense. In short, the impeachment proceeding allows for due process to be afforded to the accused. On the contrary, a justice who is removed by a majority vote of both houses of the General Assembly is not entitled to a hearing or to any of the procedural safeguards normally accorded to an accused person under the [1328]*1328judicial process. Impeachment is the sole method which may be utilized for the removal of a justice of the Supreme Court that would comport with the limitations of the bill of attainder clause.
We express no opinion on whether other methods of removal might be devised that would include a judicial hearing prior to such removal together with subsequent action by the Legislature. No such provision presently exists in the Rhode Island Constitution in respect to the justices of the Supreme Court, although such action may take place in respect to other judicial officers pursuant to the Judicial Tenure and Discipline Act, G.L.1956 (1985 Reenactment) chapter 16 of title 8.
For the reasons stated, we answer the question addressed to us by the Governor and the leaders of the Rhode Island House of Representatives and Senate in the negative.
Respectfully submitted,
Joseph R. Weisberger
Florence K. Murray
Donald F. Shea