A. RALPH MOLLIS, in his official capacity as Rhode Island Secretary of State, and not in his individual capacity
MICHAEL D. CORSO
Providence County Superior Court
For Plaintiff: Mark P. Welch, Esq. Christopher M. Mulhearn, Esq.
For Defendant: Anthony M. Traini, Esq. Michael J. Lepizzera, Jr., Esq.
United States Supreme Court Justice Felix Frankfurter once observed that: "Litigation is the pursuit of practical ends, not a game of chess." The matter now before the Court requires it to decide whether or not this is an appropriate case in which to impose Super. R. Civ. P. 11 (Rule 11) sanctions; it must decide if Attorney Mark Welch (Attorney Welch) and his client A. Ralph Mollis (collectively, the Petitioners) properly used the Court to pursue practical ends when they subjected it to a rushed, poorly conceived filing which they ultimately abandoned without explanation.
On July 25, 2014, Attorney Welch, on behalf of Secretary Mollis, filed a Miscellaneous Petition for Perpetuation of Testimony & Preservation of Documents and/or Items (the Petition)—according to the Petitioners, the Petition was filed in accordance with Super. R. Civ. P. 27(a) (Rule 27(a)) and G.L. 1956 § 9-18-12. However, despite that, the Petition was voluntarily dismissed by the Petitioners on August 25, 2014. Accordingly, the Court does not address the merits of the Petition itself but rather the conduct of the Petitioners in the filing of the Petition and whether that conduct merits sanctions. Jurisdiction is pursuant to § 9-29-21 and Rule 11.
Facts and Travel
The facts in the instant case are largely not in dispute. Mr. Mollis is currently serving as the Rhode Island Secretary of State (hereinafter Secretary Mollis) and was acting in that capacity during the events forming the basis of this action. Importantly, during the period at issue in this case, Secretary Mollis was also a candidate in the democratic primary for Rhode Island Lieutenant Governor—a primary he eventually lost on September 9, 2014.
Pursuant to G.L. 1956 § 22-10-10, the Secretary of State is empowered and required to:
"(2) Develop one register for legislative lobbyists and one register for limited-activity lobbyists . . . (5) Prepare and publish a manual for all persons, corporations, or associations that engage any person as a lobbyist and for all lobbyists that sets forth the requirements of this chapter . . . (6) Ascertain whether any person, corporation, association, or lobbyist has failed to register or file reports or has filed an incomplete or inaccurate report; and the secretary may, for good cause shown, extend the dates upon which reports are required to be filed [and] (7) Conduct investigations and/or hearings relative to alleged violations of this chapter . . . on his or her own initiative . . . Upon completion of the investigation, if the secretary of state has reason to believe that a violation has occurred, the secretary may convene a hearing for the purpose of taking evidence and receiving testimony regarding the alleged violation. At this hearing, the person alleged to have committed the violation shall be afforded the opportunity to present evidence and offer testimony in his or her defense. Upon completion of the hearing, if the secretary of state determines by a preponderance of the evidence that a violation has occurred, the secretary shall order the lobbyist or person engaging a lobbyist to file any report or amended report that is necessary to immediately correct the violation. If the secretary determines by clear and convincing evidence that the violation was intentional and that the violator failed to comply when given notice of the deficiency, then he or she may impose an administrative penalty as provided in § 22-10-11(a). Any determination and/or administrative penalty imposed by the secretary of state may be appealed by the aggrieved party to superior court pursuant to the provisions of chapter 35 of title 42. If the secretary of state determines that the nature of the violation was of such seriousness and willfulness as to warrant a criminal complaint, he or she may refer the violation to the attorney general for prosecution as provided for in § 22-10-11(b)." See also G.L. 1956 § 42-139-7.
According to Michael D. Corso (Mr. Corso or the Respondent), the issues involved in this case began when Secretary Mollis was "interrogated by a television news reporter" with respect to why he, as Secretary of State, had taken no action concerning potential unauthorized lobbying that may have taken place with respect to the now-infamous 38 Studios matter. Soon thereafter, on May 14, 2014, the Secretary of State's office sent a letter to Mr. Corso stating that "[t]hrough various media sources, it has come to the attention of our office that you may have failed to both register as a lobbyist and file several required lobbyist reporting forms" in connection with Mr. Corso's role in the 38 Studios matter. (Ex. 2—May 14, 2014 Letter to Mr. Corso.) The letter further stated that Mr. Corso had engaged in lobbying in violation of state law and that if his actions were found to be intentional after an administrative hearing he could be fined or the matter could be referred to the Attorney General for criminal prosecution. Id. On June 2, 2014, Mr. Corso's counsel responded to the letter, questioning its contentions and the evidence on which they were based. (Ex. 10—June 2, 2014 Letter to Attorney Welch.) Subsequently, on June 16, 2014, the Secretary of State's office issued a Notice of Hearing and Appointment of Hearing Officer, ostensibly without conducting any further investigation. (Ex. 3—Notice of Hr'g) A hearing was commenced on July 11, 2014, which Mr. Corso was not required to and did not attend—Mr. Corso's attorney did attend the hearing. Secretary Mollis' counsel offered into evidence a series of documents. Some were admitted by the Hearing Officer but, according to Mr. Corso, others were marked for identification only because they could not be authenticated. The Hearing Officer scheduled the next hearing for July 29, 2014, at which time, Mr. Corso states, the Hearing Officer advised Secretary Mollis' counsel that he should be prepared to authenticate the exhibits which had been marked for identification only. Id. at 8. On July 25, 2014, four days before the scheduled administrative hearing, the instant action was commenced with the filing of the Petition. Thereafter, the Hearing Officer continued the hearing date until August 26, 2014 to allow this Court to hear the Petition.
In the Petition, Secretary Mollis, pursuant to Rule 27(a) and § 9-18-12, sought an order from the Court authorizing him to take the deposition of the "person(s) most knowledgeable at The Providence Journal . . ., the Keeper of the Records for The Providence Journal Company, Keith D. Stokes, Thomas Zaccagnino, Curtis D. Schilling a/k/a Curt Schilling and Bill Thomas . . . for the purpose of perpetuating" their testimony. (Pet. ¶ 15.) After stating the powers the Secretary of State is granted with regard to overseeing the registration of lobbyists and filing of reports, the Petition then states that the enabling legislation that allows the Secretary of State to conduct investigations "does not provide for a specific procedure for the Secretary of State to acquire testimony from individuals related to the subject matter of the investigative/hearing procedure." Id. at ¶¶ 3-6, 14. It is contended in the Petition that, consequently, the Petitioners came before this Court in order to conduct depositions they deemed "necessary and indispensable" to the administrative hearing regarding the possible unauthorized lobbying of Mr. Corso. Id. at ¶ 13.
On August 13, 2014, Mr. Corso filed Respondent's Opposition to Miscellaneous Petition for Perpetuation of Testimony & Preservation of Documents and/or Items, (the Initial Opposition) in which he argued that the Petition was without merit and not in conformity with Rule 27(a); consequently, he sought its dismissal with prejudice, and attorney's fees and costs. It was at this time that the Petitioners became aware that there was some possibility of sanctions being sought in the case. This Court scheduled a hearing for September 3, 2014 and instructed Petitioners to respond to the Respondent's Initial Opposition by August 25, 2014. However, on August 25, 2014, the Petitioners voluntarily dismissed the suit pursuant to Super. R. Civ. P. 41(a)(1) (Rule 41(a)(1)). The Respondent opposed the voluntary dismissal and contended that the Petition was filed deliberately, with bad faith and for an improper purpose, and therefore, was a violation of Rule 11.
On the next day, the scheduled administrative hearing took place. At the August 26, 2014 hearing, the Hearing Officer admitted the previously challenged documents entered for identification only into evidence as full exhibits without authentication, closed the hearing, and eventually found in favor of Secretary Mollis on September 18, 2014. (Ex. 15—Submission by Resp't at the Close of Evidence and Req. for Adjudication of No Violation ¶ 17; Ex. 42—Decision and Recommendation of Hearing Officer.) It is worth noting that the resolution of the administrative matter was effectuated without the depositions of the individuals sought in this action, despite those depositions being deemed "necessary and indispensable." (Pet. ¶ 13.)
On September 19, 2014, after the voluntary dismissal of this action and the administrative hearing, the parties entered into a Stipulation in order to address Mr. Corso's argument for Rule 11 sanctions; the Court endorsed that Stipulation on the record on December 2, 2014. In the Stipulation, it states that the "proceedings are in the nature of a show cause hearing, at which the Petitioners have the burden to convince the Court that they should not be sanctioned." (Ex. 43—Stipulation ¶ 2a.) The Court deems it important to note that, as the Stipulation recognizes, the Court has made every attempt to give the Petitioners the opportunity not just to file briefs, but to testify, offer any other testimonial evidence or engage in oral argument. Id. ...