County Superior Court
get high with a little help from my friends "
Plaintiff: Carly Beauvais Iafrate, Esq.
Defendant: Timothy C. Cavazza, Esq.; Meghan E. Siket, Esq.
fifty years ago, pop culture addressed the use of marijuana
in our society. Within the past decade, the General Assembly
legalized the use of medical marijuana, and it became lawful
to sell Rocky Mountain High cannabis in Colorado. Last fall,
the voters of our neighbor, Massachusetts, authorized the
legal possession and sale of marijuana. Today, the debate
rages in Rhode Island political circles over legalizing the
recreational use of "pot." Until recently, Rhode
Island courts have dealt with the subject solely from the
perspective of the criminal law. However, our civil
jurisprudence will undoubtedly face an onslaught of
litigation concerning the lawful use of marijuana. A
colleague recently analyzed the zoning law of a town to
determine if growing marijuana is agriculture. Carlson v.
Zoning Bd. of Review of South Kingstown, No.
WC-2014-0557, 2016 WL 7035233 (R.I. Super. Nov. 25, 2016). We
read of towns enacting zoning ordinances outlawing the
cultivation of medical marijuana, which ordinances will most
certainly be challenged. See, e.g., Ter
Beek v. City of Wyoming, 846 N.W.2d 531 (Mich. 2014).
the legal use of marijuana, whether medicinal or
recreational, makes for interesting political and
philosophical discourse from law review articles to the
dinner table, a Superior Court justice cannot participate in
that debate. Consequently, this Court's challenge is
limited to discerning the intent of the General Assembly in
enacting the Edward O. Hawkins and Thomas C. Slater Medical
Marijuana Act (the Hawkins-Slater Act), G.L. 1956
§§ 21-28.6-1 et seq. To adequately perform
its task, this Court must wade into the weeds of the law of
private rights of action, federal preemption, and statutory
interpretation. Hopefully, it will not write out of key or
analyze out of tune.
Christine Callaghan (Plaintiff) has brought this action
against Defendants Darlington Fabrics Corporation
(Darlington) and the Moore Company (together, Defendants),
alleging employment discrimination with respect to hiring for
an internship position because she held a medical marijuana
card. Defendants have moved for summary judgment on all three
counts under Superior Court Rules of Civil Procedure 56;
Plaintiff has filed a cross-motion for summary judgment on
Counts I and III, and otherwise opposes Defendants'
motion on Count II. For the reasons stated below, the Court
grants Plaintiff's cross-motion and denies the
Facts and Travel
the facts in this case are undisputed. In June 2014,
Plaintiff, then a Master's student studying textiles at
the University of Rhode Island, sought an internship as a
requirement of her program. Compl. ¶¶ 7, 11-12. Her
professor referred her to Darlington, a division of the Moore
Company. Compl. ¶¶ 4, 13. Plaintiff met with
Darlington Human Resources Coordinator Karen McGrath on June
30, 2014. Defs.' Mem. 3. At this meeting, Plaintiff
signed Darlington's Fitness for Duty Statement,
acknowledging she would have to take a drug test prior to
being hired. Id. at 3-4. During this meeting,
Plaintiff also disclosed that she held a medical marijuana
card, authorized by the Hawkins-Slater Act. Id. at
4. The interview concluded shortly thereafter.
morning of July 2, 2014, Ms. McGrath and a colleague, Ms.
Linda Ann Morales, had a conference call with Plaintiff.
Id. Ms. McGrath asked Plaintiff if she was currently
using medical marijuana, to which Plaintiff responded
affirmatively. Id. Plaintiff also indicated that as
a result, she would test positive on her pre-employment drug
screening. Id. Ms. McGrath responded by informing
Plaintiff that a positive test would "prevent the
Company from hiring her." Id. Plaintiff
informed Ms. McGrath that she was allergic to many other
painkillers and that she would neither use marijuana in or
bring it to the workplace. Defs.' Answers to Interrog. 3.
afternoon, Ms. McGrath and Ms. Morales called Plaintiff to
inform her that Darlington was "unable to hire
her." Defs.' Mem. 5. According to Darlington,
"Because Ms. Callaghan put the Corporation on notice
that she was currently using marijuana, would not stop using
marijuana while employed by the Company, and could not pass
the required pre-employment drug test, and thus could not
comply with the Corporation's drug-free workplace policy,
the Corporation did not hire her." Defs.' Answers to
filed a three-count complaint on November 12, 2014. Count I
seeks a declaration that the "failure to hire a
prospective employee based on his or her status as a medical
marijuana card holder and user is a violation of the"
Hawkins-Slater Act. Compl. ¶ 29. Counts II and III seek
damages: Count II alleges Defendants' conduct violated
the Rhode Island Civil Rights Act (RICRA), G.L. 1956
§§ 42-112-1 et seq.; Count III alleges
violations of the Hawkins-Slater Act due to employment
judgment is 'a drastic remedy, ' and a motion for
summary judgment should be dealt with cautiously."
Estate of Giuliano v. Giuliano, 949 A.2d 386, 390
(R.I. 2008) (citation omitted). On a motion for summary
judgment, the movant must "establish that there exists
no genuine dispute with respect to the material facts of the
case." Id. at 391. This Court can grant summary
judgment only if it concludes, "after viewing the
evidence in the light most favorable to the nonmoving party,
that there is no genuine issue of material fact to be decided
and that the moving party is entitled to judgment as a matter
of law." Lacey v. Reitsma, 899 A.2d 455, 457
Count I, the declaratory judgment request, and Count III, the
Hawkins-Slater Act claim, both deal with the Hawkins-Slater
Act, the Court will address those first. The Court deals with
Count III initially as the reasoning therein informs the
analysis of Count I. After those counts, the Court will move
to Count II, the RICRA claim.
III: Employment Discrimination under the Hawkins-Slater
the Court must determine whether the Hawkins-Slater Act
provides a private right of action through which Plaintiff
can seek relief. Section 21-28.6-4(d) of the Hawkins-Slater Act
provides: "No school, employer, or landlord may refuse
to enroll, employ, or lease to, or otherwise penalize, a
person solely for his or her status as a cardholder."
Plaintiff contends that she was not hired because she was a
cardholder, and she contends that this prohibition against
discriminatory hiring practices should apply to her. Despite
this direct prohibition, the statute fails to provide an
express private right of action. Thus the first of many
questions this Court must tackle is whether the General
Assembly intended § 21-28.6-4(d) to be enforceable or
not. To do so, the Court must turn to statutory
interpretation, as the intent of the Legislature is not
obvious. "'In matters of statutory interpretation
[the Court's] ultimate goal is to give effect to the
purpose of the act as intended by the Legislature.'"
Whittemore v. Thompson, 139 A.3d 530, 540 (R.I.
2016) (quoting GSM Indus., Inc. v, Grinnell Fire Prot.
Sys. Co., Inc., 47 A.3d 264, 268 (R.I. 2012)). To
discern that purpose, however, the Court must resolve several
conflicting jurisprudential principles.
one hand, "[i]t is well settled in this jurisdiction
that when the language of a statute is unambiguous and
expresses a clear and sensible meaning, this Court must
interpret the statute literally and must give the words of
the statute their plain and obvious meaning."
Bandoni v. State, 715 A.2d 580, 584 (R.I. 1998).
"When a statute 'does not plainly provide for a
private cause of action [for damages], such a right cannot be
inferred.'" Stebbins v. Wells, 818 A.2d
711, 716 (R.I. 2003); but see Bandoni, 715 A.2d at
585 (denying a private right of action "where our
Legislature has neither by express terms nor by
implication provided" for one). Our Supreme Court
has routinely refused to imply a private right of action.
E.g., Great Am. E & S Ins. Co. v. End Zone
Pub & Grill of Narragansett, Inc., 45 A.3d 571, 575
(R.I. 2012) (no private right of action under §
27-9.1-4, the Unfair Claims Settlement Practices Act);
Tarzia v. State, 44 A.3d 1245, 1258 (R.I. 2012) (no
private right of action under G.L. 1956 § 12-1-12(a), a
records sealing statute); Heritage Healthcare Servs.,
Inc. v. Marques, 14 A.3d 932, 939 (R.I. 2011) (no
private right of action under P.L. 2003, ch. 410, § 3,
involving a workers' compensation fund);
Stebbins, 818 A.2d at 716 (no private right of
action under G.L. 1956 § 5-20.8-5, requiring real estate
agents to provide buyers with disclosure statements);
Cummings v. Shorey, 761 A.2d 680, 685 (R.I. 2000)
(no private right of action under G.L. 1956 §§
44-5-11(b) and 44-5-22 for missed tax certification
deadlines); Bandoni, 715 A.2d at 584 (no private
right of action under §§ 12-28-3 to 12-28-5.1, the
Victim's Bill of Rights); Pontbriand v. Sundlun,
699 A.2d 856, 868 (R.I. 1997) (no private right of action
under G.L. 1956 § 19-14-2, regarding those allowed to
inspect financial records); Accent Store Design, Inc. v.
Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)
(no private right of action under G.L. 1956 § 37-13-14,
requiring governmental entities to demand bonds from
contractors they employ); In re John, 605 A.2d 486,
488 (R.I. 1992) (no private right of action under G.L. 1956
§ 15-7-7(1), regarding termination of parental rights);
Citizens for Pres. of Waterman Lake v. Davis, 420
A.2d 53, 57 (R.I. 1980) (no private right of action under
§ 2-1-22, the Freshwater Wetlands Act).
the Hawkins-Slater Act does not contain an express private
right of action, at first glance it appears that the
aforementioned cases would militate against implying a
private right of action under the Hawkins-Slater Act.
However, there is another principle which cuts strongly the
other way: that the Court "will not ascribe to the
General Assembly an intent to enact legislation which is
devoid of any purpose, inefficacious, or nugatory."
Kingsley v. Miller, 120 R.I. 372, 376, 388 A.2d 357,
360 (1978). This canon of interpretation has long been
recognized in Rhode Island. See Mowry v. Staples, 1
R.I. 10, 16 (1835); see also Brennan v. Kirby, 529
A.2d 633, 637 (R.I. 1987); State v. Gonsalves, 476
A.2d 108, 111 (R.I. 1984); Carrillo v. Rohrer, 448
A.2d 1282, 1285 (R.I. 1982); Town of Scituate v.
O'Rourke, 103 R.I. 499, 509, 239 A.2d 176, 182
(1968); Long v. Fugere, 56 R.I. 137, 142 (1936). In
each of the private cause of action cases listed earlier,
refusing to recognize a private right of action did not
result in the statute being inefficacious.
whether these two tenets can comfortably coexist here, it is
instructive to examine these prior cases that have declined
to recognize a private right of action by implication. The
cases can generally be placed in one of four categories:
those (1) imposing civil penalties, (2) authorizing
government enforcement, (3) directing government action, or
(4) stating policy considerations. The Court examines each in
Tarzia, the plaintiff sued the state for, inter
alia, violations of § 12-1-12(a), "which
governs the destruction or sealing of records of people who
have been acquitted or otherwise exonerated."
Tarzia, 44 A.3d at 1254. The plaintiff
"argue[d] that although the only remedy explicitly
included in the sealing statute [was] a monetary fine, there
exist[ed] other causes of action available to him."
Id. at 1257. The Court held that "the
Legislature specifically limited the remedy for the violation
of the statute to a monetary fine demonstrat[ing] 'that
the [L]egislature provided precisely the redress it
considered appropriate.'" Id. (quoting
Sterling Suffolk Racecourse Ltd. P'ship v.
Burrillville Racing Ass'n, Inc., 989 F.2d 1266, 1270
(1st Cir. 1993)). Thus, in Tarzia, there was clearly
nothing nugatory about § 12-1-12(a)-the statute made a
particular action subject to a civil penalty, enforceable by
the designated government agency.
of the other listed cases stem from similar circumstances. In
Stebbins, a "buyer attempted to allege a
private cause of action for damages against defendants for
their asserted violations of [Chapter 20.8 of Title 5's]
disclosure provisions." Stebbins, 818 A.2d at
715. However, the court held that the $100 civil penalty was
the "particular enforcement provision" the
Legislature had contemplated. Id. at 716. In
Pontbriand, the statute in question had "three
express remedies for its enforcement, " including a
$1000 civil fine and, potentially, dismissal from state
employment. Pontbriand, 699 A.2d at 868. Finally, in
Great American, a violation of the unfair insurance
claim practice the statute prohibited was punishable by a
substantial fine, see G.L. 1956 § 27-9.1-6,
determined by the director of business regulation. Great
Am. E & S Ins. Co., 45 A.3d at 575. Thus, these
statutes were not superfluous by virtue of their express
enforcement mechanisms-just not the private one the
plaintiffs in each case desired.
to instances where the statute provided for a civil fine are
cases where the statute enables or empowers a government
agency to take some action. In In re John, for
instance, at issue was § 15-7-7, which provided that, if
certain facts were found, a "court shall, upon a
petition duly filed after notice to the parent and hearing
thereon, terminate any and all legal rights of the parent to
the child." A woman sought to use this statute to
terminate her former husband's parental rights. In re
John, 605 A.2d at 487. However, the Court held that
"[t]he state needs a method to terminate the parental
rights of unfit or unable parents, " and that
"[t]ermination of parental rights in these instances
achieves the purpose of § 15-7-7, which is to allow the
state to make the children available for adoption."
Id. Likewise, in Waterman Lake, a
citizens' group attempted to privately enforce the Fresh
Water Wetlands Act. Waterman Lake, 420 A.2d at 55.
However, the Court "conclude[d] that all enforcement
powers [were] vested in the director, " who had
"broad powers to remedy any violation of the wetlands
act." Id. at 57. Therefore, the statutes at
issue had purpose and effect. Like those cases where the
statute at issue provided for a civil fine, these statutes
enable the government to take action. Thus, in all of these
cases, there was no concern that the statutory language would
be meaningless were no private right of action implied-the
statute allowed the government to take action
cases are linked by a different thread. In these instances,
the statute at issue is directed at the government, not a
private actor, and instructs it to take or not take some
action. For instance, in Cummings, the statute in
question provided that town tax assessors must certify
revaluations, and must do so by a particular date.
Cummings, 761 A.2d at 685. The plaintiff there
availed herself of the two-step appeals process provided for
by § 44-5-26, claiming that because the certification
was not done pursuant to the statute, she was entitled to a
full refund of her property tax payment. Id. at 682.
However, the Court held that "the Legislature did not
provide a remedy to taxpayers in plaintiff's
position." Id. at 685. While it was clear that
there was a "remedy available for relief from an alleged
illegal assessment of taxes, " it was of no benefit to
plaintiff. Id. The Court found the certifications
there "directory, not mandatory." Id. at
686; see also id. at 687 (Flanders, J., concurring)
("[F]or the reasons given by the Court, I do not believe
that the challenged revaluation and tax assessment
certifications were illegal . . . ."). Unlike a
mandatory statute, "[t]he violation of a directory
statute is attended with no consequences, since there is a
permissive element." 1A Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction
§ 25:3, at 583 (7th ed. ...