Thomas W. Lyons, ESQ.
Thomas W. Lyons is a partner at Strauss, Factor & Lopes in Providence and also Editor-in-Chief of the Rhode Island Bar Journal.
On November 10, 1998, the Rhode Island Supreme Court will hear oral argument on the most important constitutional issue it has faced in many decades. It will be deciding the balance of power between the two other branches of government, the Legislature and the Executive. Specifically, the Governor and the Ethics Commission, which has been called the fourth branch of Rhode Island’s government, and various amici curia, have asked the court to uphold the Commission’s regulation which prohibits legislators from sitting as or appointing members of any public board. The Governor also urges the Court to interpret the Rhode Island Constitution to place the appointive power in the Executive branch in the same manner as the federal constitution. The General Assembly and others argue that the state constitutions and the colonial charter have always given our legislature broad powers of appointment and that they have appointed themselves to public boards for hundreds of years. The General Assembly believes that the regulation unconstitutionally restricts its historical powers.
Background
On May 5, 1997, the Ethics Commission promulgated Regulation 36-14-5014 as part of a broad Code of Ethics for government officials and employees. Subpart (1) states:
No member of the General Assembly shall serve as a member of a Public Board.
No member of the General Assembly shall participate in the appointment, except through advice and consent as provided by law, of any other person to serve as a member of a Public Board.
The definition of “Public Board” set forth in subpart (2) includes “all public bodies within the executive branch of government” and all other “state executive, public and quasi-public boards, authorities, corporations, commissions, councils or agencies” except those which have only “advisory” functions or “legislative” functions. Under subpart (3), the effective date of the regulation is July 1, 1999.
The regulation has come before the Court through Governor Lincoln Almond’s November 20, 1997 request for an advisory opinion on the constitutionality of the regulation. (Whether the Court should even respond to the request is a separate, disputed issue). Those questions are:
A. Does Article III, section 8 of the Rhode Island Constitution, which empowers the Rhode Island Ethics Commission to “adopt a code of ethics, including, but not limited to provisions on conflicts of interest, …[and] use of position,” provide the Ethics Commission with the power to adopt Regulation 36-14-5014?
B. Is the principle of separation of powers contained in the Rhode Island Constitution properly interpreted in the same fashion as it has been interpreted in the United States Constitution with respect to appointments, such that neither legislators, nor their appointees, may serve on any public body within the executive branch of state government, or state executive, public and quasi-public boards, authorities, corporations, commissions, councils or agencies except those which: (i) function solely in an advisory capacity; or (ii) exercise solely legislative functions?
C. Does the separation of powers principle contained in the Rhode Island Constitution impose any limits whatsoever on legislative appointments to a public board or body (as defined above)? In particular, does the Constitution prohibit legislators and/or their appointees from constituting a majority of the membership of a public board or body? Does the Constitution prohibit appointment of sitting legislators to a public board or body?
On November 26, 1997 the Supreme Court entered an order which set a briefing schedule and invited amicus briefs from the Attorney General, the Rhode Island Bar Association, and any other interested parties who may desire to file such a brief. [N.B.: For various reasons the Bar Association declined to take a position].
This article will review and summarize the 13 briefs totaling some 726 pages which have been submitted to the Court. Many of the briefs contain the same or similar arguments. The article will largely avoid duplicative description of these arguments. The author notes that various briefs occasionally disagree as to historical and contemporary facts or the holdings of certain cases. This article does not attempt to resolve these differences or to vouch for the accuracy of the briefs.
The Governor
The Governor urges the Court to answer all three questions in the affirmative. He says between 1843 and 1901 his predecessors made virtually all the appointments to public bodies.
However, in 1901 a Republican General Assembly passed the Brayton Act following the election of a Democratic governor. This Act transferred appointive powers to the legislature. In November 1934 Governor Theodore Francis Green was elected to his second term and his fellow Democrats gained control of the General Assembly for the first time since 1853. He then masterminded the so-called “Green” or “Bloodless” Revolution. Democrats abolished the Brayton Act, reorganized the state government to replace boards with executive departments and replaced the entire Supreme Court with handpicked nominees. The result was the General Assembly “shared rather than yielded” the appointment power. The Governor says no legislators were appointed to boards until 1955 with the creation of the Retirement Board. Today, the General Assembly has by law given itself the power to make over 300 appointments to over 75 public boards. Over 200 of those appointments are mandatory appointments of sitting legislators.
There is no separation or distribution of powers clause in the United States Constitution. The doctrine flows from the “amalgamation” of the first three articles which set forth the powers of the legislative, executive and judicial branches of the federal government. Federal courts, including the Supreme Court, have repeatedly affirmed the doctrine. The Court has often found Congressional action to be an unconstitutional interference with the executive branch’s powers and prerogatives, including legislative appointments to public boards or bodies which exercise executive powers. In Shoemaker v. United States,1 the Court said “while congress may create an office, it cannot appoint the officer.” In Springer v. Gov.’t of the Philippine Island,2 the Supreme Court decided under the “Organic Act” of the Philippines whether appointments by the Philippines’ legislature to various boards violated the separation of powers doctrine. The Governor says the Organic Act was a “document akin to a state Constitution.” The Supreme Court held the appointments do violate the doctrine. Similarly, in Humphrey’s Executor v. United States,3 it held that while the legislature can determine the period for which executive officers shall serve, it cannot remove them.4
More recently, in Buckley v. Valeo,5 the Court ruled that Congress could not appoint members of the Federal Election Commission. The Court said “…it is a breach of the national fundamental law if Congress….attempts to invest itself or its members with either executive power or judicial power.” Congress then amended the statute to provide that it could appoint non-voting members to the commission. The Commission argued that these appointments allowed it better coordination with Congress and played a mere informational or advisory role. However, the D.C. Circuit said:
Advice….surely implies influence, and Congress must limit the exercise of its influence, whether in the form of advice or not, to its legislative role. In that capacity, Congress enjoys ample channels to advise, coordinate, and even directly influence an executive agency. It can do so through oversight hearings, appropriation and authorization legislation, or direct communication with the Commission. What the Constitution prohibits Congress from doing, and what Congress does in this case, is to place its agents “beyond the legislative sphere” by naming them to membership on an entity with executive powers.6
It struck down that statute finding that the mere presence of ex officio legislative appointees violates separation of powers.7
More recently, the Supreme Court invalidated Congressional appointments to a Board of Review in Metropolitan Washington Airport Authority v. Noise Abatement Center.8 The Court observed:
One might argue that the provision for a Board [containing legislative appointments] is the kind of practical accommodation between the Legislative and the Executive that should be permitted in a “workable government.” However, the statutory scheme challenged today provides a blueprint for extensive expansion of the legislative power beyond its constitutionally confined role…9
The prevailing federal test for determining when a separation of powers violation exists was set forth in Chadha v. Immigration and Naturalization Service.10 The Ninth Circuit said a violation occurs when:
[1] an assumption by one branch of powers that are central or essential to the operation of a coordinate branch, [2] provided also that the assumption disrupts the coordinate branch in the performance of its duties and [3] is unnecessary to implement a legitimate policy of the Government.11
The Rhode Island Supreme Court has adopted this as one of two alternative tests of a separation of powers violation.12 A violation also occurs when one branch “interfere[s] impermissibly with the other’s performance of its constitutionally assigned function.”13
The Governor says that execution and enforcement of the laws is “at the very heart of his constitutional duty and obligation.” His duty is constitutionally disrupted when the General Assembly assumes the power of appointment. Legislative appointments to public boards are entirely unnecessary to any legitimate government policy.
An “overwhelming number of state courts and constitutions” follow the federal model and decisions in applying the separation of powers doctrine to prohibit legislative appointments to executive boards. Moreover, “[n]o other state remotely approaches the omnipresent legislative infiltration that exists on Rhode Island’s public boards and commissions.” He calls “idiosyncratic” any interpretation of the Rhode Island constitution which would perpetuate the General Assembly’s power to make such appointments.
The Governor says that all state legislatures have plenary powers, nevertheless, that does not give them the power to intrude into the executive branch citing a law review article by Sheldon Whitehouse.14 He refers to cases from Alaska, Pennsylvania, Michigan, Wisconsin, Utah, North Dakota, Florida, Arizona and Connecticut, among others. There are also decisions from twenty-eight states whose constitutions do have explicit separation of powers provisions which invalidate legislative appointments to executive boards.
The Governor focuses on a decision by the Connecticut Supreme Court, State v. Clemente,15 because of that state’s “parallel constitutional history.” In Clemente, the Connecticut court applied the separation of powers doctrine to invalidate what it describes as “a clear invasion of the judicial power” by the legislature. He also points to several decisions by the Massachusetts Supreme Judicial Court.16 In a 1974 decision that court found the Electronic Data Processing and Telecommunications Commission unconstitutional because legislators were included in its membership.17
The Governor argues that the Guaranty Clause of the federal constitution, Art. 4, § 4, requires that the Rhode Island Constitution follow the separation of powers doctrine. That provision states:
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
The Rhode Island Supreme Court said that “the concept of separation of powers is expressly guaranteed” to the people of Rhode Island by this provision.18 In other cases the Court has cited and applied federal separation-of-powers doctrine decisions.19
The Court recently upheld the constitutionality of legislation barring elected officials from being appointed to certain state jobs, In re: Advisory from the Governor (Revolving Door Legislation).20 The court said:
The Legislature has assumed no power through the administration of the statute and cannot force upon the Governor appointments he deems unacceptable. The Legislature has imposed certain minimal temporary restrictions of the pool of available applicants. [The legislation does] not contain any language that vests the Legislature with any appointment power. Consequently, the Legislature has not, directly or indirectly, assumed any essential power of the Governor.21
However, the state court decision upon which the Governor relies most heavily is an opinion by then Superior Court Justice Ronald Lagueux, Easton’s Point Association v. Coastal Resources Management Council.22 In that case, Judge Lagueux rejected the authority of the Coastal Resources Management Council (“CRMC”) to act because some of its members were appointed by the General Assembly. He said:
The position that the appointment power rests with the General Assembly, carried to its logical conclusion, would allow the legislature a free hand to appoint all administrative personnel in government. Consequently, because the power to appoint is the power to control the governor’s ability to see to it that the laws are faithfully executed would be in serious jeopardy.23
However, the Supreme Court reversed the decision without reaching the merits because Judge Lagueux had raised the issue sua sponte.24
The Governor also relies on the “incompatibility of office” doctrine. This doctrine bars a person from holding two public offices simultaneously if holding those offices is incompatible. In State ex. rel. v. Goff,25 the Rhode Island Supreme Court first applied the test of incompatibility:
The test of incompatibility is the character and relation of the offices: as where one is subordinate to the other, and subject to some degree to its revisory power: or where the functions of the two offices are inherently inconsistent and repugnant. In such cases it has uniformly been held that the same person cannot hold both offices.26
In Goff the court held that the offices of district court judge and deputy sheriff were incompatible because the body of which the judge was a member supervised and controlled sheriffs. Similarly, in Opinion to the Governor,27 the Court held that simultaneous membership in the General Assembly and the Board of Elections violated the incompatible doctrine because the decisions of the board “are subject, in some degree at least, to the revisory power…” of the General Assembly.28
The Governor argues that legislative membership on public boards violates the incompatibility doctrine. A legislator “compromises his independence with simultaneous service on a public board.” Moreover, the General Assembly will not diligently oversee boards on which its members sit. The Department of Environmental Management (“DEM”) has been the subject of dozens of legislative hearings the last two years. However, CRMC, which includes eight legislative appointees, has never faced such hearings since its creation in 1974.
The Governor contends that contrary Rhode Island Supreme Court decisions are actually just dicta or are outdated. For example, in Election of Officers by the Senate,29 the individual justices opinions were “wrong and stand as [a] unique blot on [the] Court’s constitutional history.” Similarly, describing the court which decided Gorham v. Robinson,30 the Governor quotes Whitehouse:
All five of the new judges’s predecessors were sacked. The five new judges served at the will and pleasure of the legislature and were naturally allied with their patrons in the new legislative majority. With the seats of their predecessors still warm, they could have seen little value in provoking the General Assembly.31
The absence from the state constitution of an Appointments Clause such as appears in the federal constitution is irrelevant. That clause states the President:
…shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States….32
However, the United States Supreme Court has not relied upon that clause in its decisions invalidating legislative appointments. Instead, it has most recently relied exclusively on the separation of powers doctrine.33
The Governor says that the failure of the 1986 Constitutional Convention to address this issue is irrelevant. At the time of the Convention, Judge Lagueux had just rendered his Easton’s Beach opinion. The Governor argues that the Convention members would have found it unnecessary to revise the constitution because they would have thought Judge Lagueux’s opinion resolved the issue. Moreover, that Convention created the Ethics Commission and gave it the power to regulate conflicts of interest.
The Ethics Commission
The Ethics Commission’s brief mainly supports its constitutional authority to promulgate Regulation 5014. In the context of arguing that authority it addresses whether the Rhode Island Constitution otherwise prohibits legislators from sitting on or making appointments to public boards. The Commission describes in detail the history of the Regulation from October 1995 when it submitted for public comment a draft code of ethics, including the precursor of the Regulation. It lists the many people who testified in favor of the regulation, including two legislators. No legislator presented arguments against the proposal.
The Commission claims the power to adopt substantive ethics laws, citing Article III, Section 8 of the Constitution. That section says, in part:
The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts, confidential information, use of position….All elected and appointed officials….shall be subject to the code.
The Commission states that the members of the 1986 Constitutional Convention intended to remove ethical regulation from the General Assembly and to make “broad grants” of authority to the Commission. The Supreme Court had previously ruled that the Commission had properly adopted prior rules and regulations relating to ethics and government reform.34 The Commission argues this decision conclusively upholds its power to adopt substantive regulations. The only legal issue is whether Regulation 5014 is a provision on conflicts of interest or use of position.
The Commission says that the term “‘conflict of interest’…concerns any circumstance where divided loyalties may result.” The framers of the 1986 Constitution “…clearly intended the term ‘use of position’ to empower the Commission to adopt regulations to prevent abuses in or the misuses of public office.” Two justices of the Supreme Court have said recently that the presence of legislators on the judicial tenure commission was improper.35
In a 1993 opinion the Court upheld two Commission regulations which restricted the appointment powers of the General Assembly and the Governor.36 Regulation 5006 barred all elected and appointed officials from accepting any appointment by the body of which he or she was a member to any position which carries with it financial benefit until one year after the officials have left those bodies, unless the Ethics Commission approves the appointment. Regulation 5007 bars members of the General Assembly from seeking or accepting state employment as an employee or consultant until one (1) year after leaving office. Accordingly, the Commission believes that it has the authority to adopt Regulation 5014 so long as it does not “usurp or seriously impinge on the central and essential duties of the General Assembly.”
Common Cause, et al.
Common Cause of Rhode Island, The Rhode Island State Council of Churches, The League of Women Voters of Rhode Island and Red Alert, Inc. joined together in a brief. (For ease of reference they will be collectively called “Common Cause”). It supports the Governor’s argument that the separation of powers doctrine implicit in the state constitution prohibits legislators from appointing and being appointed to executive boards.
Common Cause says the history of Rhode Island politics and scandals reinforces the Governor’s position. A historian has argued that one reason Rhode Island revolted from the English was to “preserve ‘the benefits of party politics’— patronage and spoils.”37 The colonial Charter had placed the legislative, judicial and executive power of government in the General Assembly. The 1843 Constitution instituted separations of power to “restore the General Assembly to its proper place.” Thereafter, legislation routinely granted the governor the power to appoint to executive boards.
Arguably, the General Assembly understood for the next sixty years that it was the governor’s role to make those appointments. However, with the passage of the Brayton Act in 1901 the General Assembly reasserted its claim to the appointment power. Even through the Green Revolution of 1935 it continued to make appointments although it now shared the power with the governor. Beginning in 1955, the General Assembly began selecting its own members to serve on executive boards and that power has gone largely unchallenged until now.
Recent examples of conflicts of interest involving legislators highlight the problem, including the RISDIC collapse, the state Retirement Board, the Narragansett Bay Commission, the Coastal Resources Management Council, the Rhode Island Lottery Commission, the Rhode Island Resource Recovery Corporation. Very few states allow legislators to sit on or appoint people to their corresponding commissions.
Legislative appointments to executive agencies are a “formula for corruption.” Legislators place themselves in ethically compromising positions by empowering themselves to execute the laws they enact. Moreover:
Individual legislators from small representative districts are able to accrue enormous power over statewide issues and policies, and even personal enrichment, due to their presence on these agencies; however, only a small proportion of the states’ population is able to vote them in or out.
In addition, the General Assembly cannot effectively oversee a public board if the board includes legislators.
Common Cause echoes many of the constitutional arguments made by the Governor. James Madison wrote:
I conceive that if any power whatsoever is in the nature of the executive, it is the power of appointing, overseeing and controlling those who execute the laws.38
He also said:
The powers relative to offices are partly legislative and partly executive. The Legislature creates the office, defines the powers, limits its duration and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office.39
In 1748 Montesquieu wrote:
When the legislative and executive powers are united in the same person, or in the same body of magistrates….apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.40
Common Cause argues that while the Rhode Island Supreme Court has occasionally distinguished the federal and state constitutions, it has never done so on the issue of separation of powers. It also notes decisions from other states such as Mississippi, North Carolina, Kansas, Pennsylvania, Massachusetts, Alaska, Georgia, Florida, Arizona, West Virginia, Indiana and Colorado holding the appointive power was exclusively executive under those states’ constitutions.
The Environmental Council of Rhode Island, Inc.
The Environmental Council of Rhode Island (“the Council”) represents “a coalition of organizations and individuals committed to working to protect the environment,” including Save the Bay, The Nature Conservancy, the Audubon Society of Rhode Island and the Sierra Club of Rhode Island. It urges the Supreme Court to rule that the separation-of-powers doctrine prohibits legislators from sitting on executive boards. It does not address the validity of Regulation 5014. The Council argues that the presence of legislators on boards and commissions which regulate executive branch and quasi-public agencies:
1) improperly insulates legislators and legislative appointees from public scrutiny and individual accountability in their role as decision makers;
2)compromises the ability of the legislature to exercise legitimate oversight authority concerning state law; and,
3) interferes with the public’s ability to participate meaningfully in shaping public policy.
The Council says the early colonial and constitutional history of Rhode Island shows it has always had a strong chief executive. In colonial times that executive was recognized to be the king and not the relatively “weak” Governor elected by the freeman at large. In the seventeenth century the colonial General Assembly readily acknowledged its obedience to the king. In 1685, the king’s commissioner recommending revoking Rhode Island’s colonial charter due to “irregularities.” The king issued a Royal Writ of Quo Warranto for that purpose and to summon the “Governor and Company” to appear before him:
to answer unto our lord the King by what warrant you claim to have your diverse liberties and franchises within the colony…in default thereof you will be proceeded against to the outlawry whereby the liberty and franchises you claim and now enjoy will be forfeited to the King and your Charter annulled.41
In its response the Assembly said:
To the third [charge] we answer that according to our Charter the legislative power is seated in our General Assemblies and the executive power of the government is in our courts of trial settled according to Charter….
Courts of trial were composed of twelve “jury men….empowered thereto by the warrant of the Governor, or deputy Governor.”42 These courts were routinely convened to administrate and execute the powers of the government.43 Appeals from the decisions of these “executive courts” were to a special committee of the “privy council” sitting in London. This council was composed of the cabinet ministers and other persons chosen by the king.
Following the Assembly’s response to the Writ the king appointed a new governor for all of New England. For a period of four years there was no General Assembly. There was only a Governor who answered only to the king. Moreover, in 1712, the General Assembly disavowed “the executive power or authority of constituting themselves a court of chancery….”44
In 1790 Rhode Island, like other states, adopted a Bill of Rights in convention.45 Among the eighteen enumerated rights was:
That the legislative, executive and judiciary powers of government, should be separate and distinct;-and that the members of the two first may be restrained from oppression.
The convention declared that these rights could not be abridged or violated.46 When the state adopted its first constitution 53 years later, it included:
The enumeration of the foregoing rights shall not be construed to impair or deny others retained by the people. The rights guaranteed by this Constitution are not dependent on those guaranteed by the Constitution of the United States.
Article 1, Section 24. That section remains identical in the present constitution.
The inclusion by the General Assembly of George Washington’s Farewell Address in the first digest of the general laws is further support for the separation of powers doctrine. In the address, Washington spoke of the importance of a distribution of the powers of government: “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.”47
The Council points to other provisions of the original state constitution as supporting separation of powers. Article V said “The powers of government shall be distributed into three departments; the legislative, the executive and judicial.” Nothing in Article VI “Of the Legislative Power,” gives the General Assembly the authority to assume executive power. In Opinion to the House and Senate,48 the Court held that the General Assembly could not legislatively negate the Court’s prior decision overturning a treason conviction against Thomas Dorr, leader of the Dorr Rebellion. The Court construed Article VI, Section 10, of the Constitution: “The General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.” It said: “When….it speaks of conferring power on that body, the fair presumption is,— that it intends legislative power, unless a different intent is expressed.”49 The Council argues this decision “clearly debunked the argument that Section 10 vests the legislature with powers which invade the essential prerogatives of the judiciary or the executive.” In 1887 the Court held that under Article IX, Section 8 of the constitution, which empowers the Governor to commission state officers, the governor could appoint an Investigatory Commissioner to inquire and report facts.50
The Council states the environmental agencies about which it is concerned are executive in nature, in part because they are subject to the state’s Administrative Procedures Act.51 Moreover, they perform traditionally executive branch functions. Their predecessor agencies, such as the Harbor Commission performed executive functions going back to the last century. The governor was legislatively empowered to appoint all three members of the Harbor Commission.52 Similarly, he had the power to appoint other officials with environmental duties, such as the Commission of Inland Fisheries.
Operation Clean Government
Operation Clean Government (“OCG”) describes itself as “a grass-roots, volunteer organization” which “promote[s] honest, responsible and responsive state government.” It argues exclusively the validity of Regulation 5014. OCG says the public has lost confidence in the integrity of Rhode Island government because money flowing to the legislators who are also commissioners:
1) insulates the legislator/commissioner from political opposition, thereby undermining representative democracy and establishing a condition necessary for political arrogance;
2) aggrandizes the legislator/commissioner’s personal power by enabling him to act as a money funnel for colleagues in his party:
3) distorts representative government by making a commission the legislator/commissioner’s de facto constituency, and by undermining the legislature’s oversight function;
4) allows the legislator/commissioner to merge governmental functions of a commission with the political functions of the legislator/commissioner’s political campaign, thereby politicizing governmental services;
5) gives rise to a tacit understanding that vendors to and employees of a commission donate money to the legislator/commissioner’s campaign to do business with the commission; and,
6) allows campaign contributions to be used by an appointed official with power over contracts and jobs.
Before the Ethics Commission promulgated Regulation 5014, OCG presented it with a study focusing on outgoing state Representative Vincent Mesolella, who is also the chairman of the NBC and the Underground Storage Tank Fund Review Board (“USTFRB”). Its study identified businesses whose employees or political action committees made political contributions to Mesolella in 1993 and 1994 and which received business from NBC in 1994 and 1995. OCG found approximately 20 such businesses gave a total of $21,775 in contributions and received over $3 million in business.
In 1994 Mesolella ran unopposed but had contributions totaling over $100,000. Of the $41,000 that he raised in 1993-94, $1450 came from his constituents. Approximately, $27,000 came from vendors to or employees of NBC. Mesolella in turn donated or loaned nearly $20,000 to other political candidates or parties. According to OCG, he also used roughly $6000 to pay for a Christmas party at NBC notwithstanding a state statute requiring that campaign expenditures only be made for gaining or holding office.
When OCG presented its study to the Ethics Commission it urged the Commission to reject various versions of proposed Regulation 5013 which it says “prescribes as unethical certain conduct of legislators sitting on public boards.” One such version would have prohibited legislators from taking contributions from commission vendors within a twelve month period that the legislator participates or votes on a contract with that vendor. It argued that this version did not go far enough in preventing the “corrosive effect” of legislators sitting as commissioners.
OCG did not file an ethics complaint respecting Mesolella and the contributions because the Supreme Court’s decision in DiPrete v. Morsilli,53 requires proof of a “quid pro quo” or “a tacit understanding” with the contributor.54 Nevertheless, it says that there is no rational explanation of why the vendors and employees donated their money other than the expectation of benefits.
OCG argues that the 1986 Constitution vests specific authority over ethical codes in the Commission and gives the Supreme Court no authority regarding the enactment of such codes. It states the Court has authority only to review Commission actions taken against specific individuals pursuant to the APA. OCG says that the information it gave the Commission provided substantial competent evidence upon which to conclude that conflicts of interest and abuse of position are inherent in the dual role of legislator/commissioner.
The Speaker of the House of Representatives
The Speaker of the House of Representatives argues that since colonial times Rhode Island’s governor has had severely circumscribed powers whereas the Legislature had plenary powers unless expressly restricted by the constitution or charter then in effect. The House sees the Ethics Commission regulation as overbroad and unconstitutional. Moreover, the Governor’s support for the regulation is a “transparent power grab.”
According to the colonial charter granted by King Charles II in 1663 the General Assembly obtained the power to “….elect and constitute such offices and officers, and to grant such needful commissions, as they shall think fit and requisite….and also to appoint, order and direct, erect and settle, such places and courts of jurisdiction…as they may think fit.” This charter “… was void of the concept of separation of power…” about which Montesquieu first wrote eighty-five years later. Notably, Rhode Island was the most reluctant of the colonies to approve the federal constitution and did not adopt a state constitution until 1843.
Article IV of that Constitution, now Art. VI, 10, provides: “The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this Constitution.” Respecting the executive power, Article VII, now Art. IX, § 5, said the Governor may: “…fill vacancies in office not otherwise provided for by this Constitution or by law, until the same shall be filled by the general assembly, or by the people.” Numerous Rhode Island Supreme Court decisions from 1856 onward describe the Legislature’s power as “…practically absolute, except for constitutional limitation.”55
From 1843 to 1901 the General Assembly delegated by statute the power to appoint some members of various administrative boards and commissions. It retained the power to appoint many officers including the state auditor, various commissioners, judges, clerks and sheriffs. The House strongly disagrees with the Governor’s assertion that during the 1800’s his offices routinely and customarily made board and commission appointments. Rather, all such appointments were made pursuant to statutory authority granted by the General Assembly.
Decisions from other states such as Arkansas, Delaware, Maryland, Utah, North Carolina and New Mexico support the House’s position.56 [The Governor and the House disagree as to where the North Carolina courts come down on this issue]. These courts and constitutional scholars find that many state constitutions were drafted differently from the federal constitution.
State legislatures, however, unlike Congress retain all powers not explicitly taken from them by the constitution. This residual power has been properly held to include, unless the constitution provides to the contrary, the power to exercise the people’s authority freely to determine how officials will be chosen.57
To the extent other state courts agree with the Governor’s position, the House says that they are interpreting state constitutions drafted like the United States constitution.
Federal decisions are not persuasive authority because the federal constitution is expressly different from the Rhode Island constitution. Our state constitution does not contain an Appointments Clause like the federal constitution, Art. II, § 2. Our Supreme Court has long recognized distinctions between the constitutions:
We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation.58
The Court has also said:
…the General Assembly possessed “all of the powers inhering in sovereignty other than those which the constitution textually commits to the other branches of our state government and that those that are not so committed….are powers reserved to the general assembly.”59
The Court has compared the executive and legislative branches’ relative authority under the federal and the state constitutions.60 It found the federal constitution:
…limits Congress’s authority to the powers specifically enumerated…..the President is given the power to act in those areas not explicitly covered by the Constitution….however, the General Assembly’s power is not limited to the powers specifically limited whereas the Governor’s authority is so limited.61
Article VI, § 10 of the 1986 Constitution states: “the general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution.” Five years ago the Supreme Court held:
[W]e find that no power of appointment is vested in the governor save to fill vacancies temporarily existing….Although many of our laws creating state agencies, commissions, and boards require the Governor to appoint some of the members to those bodies, that power is not a general per se enumerated constitutional duty of the Governor.62
Three years ago the Court commented:
In fact, the executive department-chief executive has today essentially the same limited powers first given in 1842. All that have been added in the intervening years since that time, are the Governor’s limited pardoning and veto powers.63
The House says the Court’s recent decision on the Governors’ power to fill the Lieutenant Governor’s position, In re Advisory to the Governor (Appointment to Fill Vacancy in Office of Lieutenant Governor),64 does not contradict its arguments. In that case, the Supreme Court held that Governor Almond could appoint a new lieutenant governor to fill the vacancy created when Robert Weygand resigned to become a Representative to Congress. The Court said the Governor had the power to do so pursuant to Art. IX, § 5, absent any statute to the contrary.65 The General Assembly then passed a statute granting itself the authority to make the appointment. The issue came back to the Court. It held that in the future, the General Assembly could provide by law for the filling of such vacancies by the Grand Assembly.66
The House rejects Common Cause’s argument that the doctrine of incompatibility prevents legislators from appointing officeholders, including themselves. In a 1966 decision, McCabe v. Kane,67 the Court considered whether a legislator could serve as clerk of the Supreme Court. It initially found there was no constitutional prohibition against holding these two offices simultaneously.68 It then analyzed whether the clerk would be subordinate to the General Assembly such as to make it incompatible for one person to hold both positions. The Court concluded the clerk would be subordinate to the court. Accordingly, there was no incompatibility problem. Similarly, there is no incompatibility problem with legislators appointing board members and being board members because board actions are subject to judicial review.
The House argues the Rhode Island Constitution does not empower the Ethics Commission to prohibit the General Assembly from appointing members of public boards. Article III, § 8 of the 1986 Constitution states in pertinent part: “The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure.” Our Supreme Court has previously held that this power does not include:
the ability to adopt a code that infringes upon the legislative and executive power. For example, the commission may not set standards that seriously impinge upon the executive or the legislative branch’s ordinary duties for which each is elected, including the appointment of various officials to public office.69
Although a few individuals may have committed ethical abuses this does not entitle the Commission to attempt a wholesale redistribution of constitutional powers. Instead, it should continue to prosecute individual abuses on a case by case basis. In Town of Lincoln v. Lincoln Lodge No. 22,70 our Supreme Court considered a clash between the Commission’s constitutional powers and a state statute. The issue was whether under Art. III, § 7, which requires that public officials avoid the appearance of impropriety, the Commission could overrule state laws which allow police chiefs to be part of collective bargaining units. The Court held the Commission could not invalidate the statute. Rather, it must determine case by case whether there has been an ethical violation.71
The House believes that the General Assembly’s appointive power helps it maintain its constitutional position. It has “….short legislative sessions, lack of staff, and its members usually have another primary career or job in order to support themselves.” The power to appoint provides the Assembly with the most effective way to implement legislative oversight. Moreover, the state constitution does not provide an advise-and-consent check on the Executive’s power. Accordingly, the Governor’s claimed power to appoint would be utterly unfettered. This highlights the fundamental differences between the federal and state constitutional systems.
The House argues that only a constitutional amendment can change the distribution of powers between the legislative and executive branches. The Ethics Commission cannot effect such a change by a regulation.
The Majority Leader of the Senate
The Senate Majority Leader initially contends that the Supreme Court should decline to respond to the Governors’ request for an advisory opinion because it does not come within the Constitutional and decisional guidelines for rendering such opinions. The questions presented have no relationship to the Governor’s official duties or any present duty awaiting his performance. The Court should not issue an advisory opinion on hypothetical issues when it may soon face actual controversies.
The Majority Leader says Regulation 5014 is part of a proposed 49 page “Code of Ethics” for public employees and officials. According to the Majority Leader, the code would overturn existing numerous statutes, criminalize certain conduct, confer upon the Commission additional power to impose civil penalties, increase many of its other powers and affect the jurisdiction of the courts.
The Commission’s Executive Director advised it that Regulation 5014 was unconstitutional.72 It then asked Prof. Geoffrey Hazard of the University of Pennsylvania for an opinion. He concurred that the proposed rule would be unconstitutional:
…the text of Article 3, Section 8, does not empower the Ethics Commission to adopt the prophylactic measure stated in proposed Section 5013A [later renamed 5014], as distinct from prohibitions on specific conduct…. It is also noteworthy that article 3, Section 8 does not directly constitute the Ethics Commission. Instead, it requires the Assembly to constitute such a commission…. However, the fact that the Ethics Commission is to be constituted by the Assembly implies that the Commission could be given more limited powers rather than more expansive ones.73
The Majority Leader says that the state constitution explicitly confers only five enumerated powers upon the Governor. The only one dealing with appointments is Art. VII, Section 5 which says:
He may fill vacancies in office not otherwise provided for by this Constitution or by law, until the same shall be filled by the general assembly, or by the people.
Furthermore, throughout the state’s history there have been numerous suggestions for constitutional provisions or amendments which would have restricted the Legislature’s plenary power or given the governor appointment powers. The people have rejected each suggestion. In 1842 the “Landowners Convention” recommended a provision which would have barred any person belonging to any branch of government from exercising “any of the powers properly belonging to either of the others.” In 1915 a constitutional commission unsuccessfully proposed adoption of a new constitution which would have given the governor power to appoint all officers other than general officers and Supreme Court justices. Similarly, in 1961, another commission proposed a constitution which would have copied the federal constitutional distribution of powers, including some appointive power for the Governor. Again, that suggestion was rejected.
During the 1986 Constitutional Convention the delegates received research reports prepared by the Convention’s staff. One report proposed giving the governor explicit appointive power. Similarly, the Rhode Island Public Expenditure Council distributed to delegates a “primer” urging them to strengthen the governor’s powers. Several resolutions presented during the Convention would have implemented these suggestions. The Convention rejected them.
The Majority Leader argues that Regulation 5014 would attempt to overturn explicit constitutional authority. For example, Article VI, Section 15, gives the General Assembly plenary authority over the “prescription and regulation of lotteries,” presumably including the creation and composition of the Lottery Commission.
The Attorney General
The Attorney General urges the Supreme Court to find that Regulation 5014 unconstitutionally infringes on the General Assembly’s plenary powers and the Court’s authority to determine the distribution of powers among the branches of government. He also argues the General Assembly has long had the authority to appoint members of public boards including legislators and that only a constitutional amendment can change that. The Court should decline to answer the third question submitted by the Governor. Finally, if the Court does decide to offer an advisory opinion on what limitations there might be on legislative appointments, the General Assembly suggests the Court adopt a fact-intensive, multi-factor approach.
The Ethics Commission’s constitutional mandate shows it lacks the power to enact the Regulation. The 1986 Constitutional Convention created the Commission as part of Article III addressing “Qualifications for Office.” Section 6 of that Article sets forth constitutional restrictions on members of the General Assembly holding office in the federal or other state governments. There is no prohibition on holding other positions in Rhode Island government.
The Attorney General notes that the Assembly participates in the appointment of five of the nine members of the Ethics Commission. The Majority and Minority leaders of the Senate, the Speaker, and the Majority and Minority leaders of the House each submit a list of five candidates to the Governor. The Governor must appoint one Commission member from each of the five lists. This suggests that the Commission which promulgated the regulation is apparently a product of the same “influence peddling and cronyism” which the regulation purportedly attacks.
Federal decisions on the appointment power are not pertinent due to provisions in the federal constitution which do not appear in our state constitution. The Incompatibility Clause,74 says: “[N]o person holding any office under the United States, shall be a member of either house [of Congress] during his continuance in office.” The Appointments Clause,75 states:
[The President] shall nominate, and by the advice and consent of the senate, shall appoint….all other officers of the United States….but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone….
These two clauses plainly prohibit federal legislators from serving on executive boards or appointing members of such boards. In any event, the Framers of the federal constitution had “no unified understanding of what the principle [of separation of powers] meant in specific application.” The First Congress rejected an amendment proposed by James Madison that would have explicitly prohibited any branch from exercising powers vested in another branch.76
Prof. Zechariah Chafee, Jr. once described the General Assembly’s power as “the same power that the Almighty has over the Universe.”77 Chafee specifically observed that the governor did not have the constitutional power to choose all his important subordinates. More recently, the Supreme Court has described the Assembly’s authority as “the powers of both the Crown and Parliament.”78
In 1856 the Rhode Island Supreme Court first analyzed the distribution of powers clause in the 1842 Constitution.79 The Court found that the purpose of the clause was to separate the judicial power from the legislative. It said:
It is quite evident, too, that this distribution of powers was, in our Constitution, made for the special purpose of depriving the general assembly of their long exercised judicial power, which, rightly or wrongly, that body had assumed under the charter. The executive power had been nominal, merely, under the charter; and the Constitution extends it very little.80
The Court said the Constitution extends only the chief executive power to governor, not the whole executive power.
Similarly, during the 1986 Convention there were resolutions to empower the Governor to appoint administrative officers. These resolutions went to the Committee on the Executive Branch which discussed them as well as Judge Lagueux’s decision in the Easton’s Point case. Members of that committee disagreed with the decision. The majority report said: “The majority also finds that the historical development of legislative enactment has historically vested appointment powers in the legislature and/or the Governor.” The Committee adopted a resolution providing for executive appointment of executive officials. The resolution failed on the Convention floor on June 26, 1986.
The Attorney General observes that governors over the years have acquiesced in legislative appointments. Recent governors have signed legislation creating executive boards with members appointed by the General Assembly, e.g., the Lottery Commission (Governor Noel), the Board of Governors for Higher Education (Governor Garrahy), and the Coastal Resources Management Council (Governor Licht). The Attorney General argues that whatever the merits of a federal system of separation of powers, it is for the people to adopt it through a constitutional amendment.
With respect to the third question propounded by the Governor, i.e., whether there are any limits under the present constitution to the Assembly’s appointment powers, the Attorney General suggests the Court decline to respond. The question is too hypothetical and is best addressed in the context of a specific controversy. However, if the Court is inclined to address the question, the Attorney General suggests that it adopt the analysis set forth by the Supreme Court of Kansas.81 That court said in determining whether a particular board constitutes an unconstitutional intrusion by the legislative branch into the executive it would consider:
- Is the power exclusively executive or legislative or a blend of the two?
- Is there a coercive influence by the legislature or a mere cooperative venture?
- Is the intent of the legislature to cooperate with the executive by furnishing some special expertise or is the objective to establish legislative superiority over an executive department?
- What will be the practical result of a blending of powers?
Finally, the function and makeup of several public boards indicates there is no separation-of-powers problem. Ten of the twenty-three members of the Narragansett Bay Commission are appointed by the Governor and nine are appointed by various municipalities. Only four are legislators. Insufficient separation of powers does not seem to be the cause of its problems.
Patrick Conley
Patrick Conley is a local attorney and published author on Rhode Island history. His 168 page brief is largely factual and directed at rebutting the historical arguments of the Environmental Council and other supporters of the Governor and Ethics Commission. The colonial charter of 1663 provided for the office of governor, deputy governor, ten assistants and eighteen deputies elected by the “freemen” of Providence, Portsmouth, Warwick and Newport. These officials were collectively called the General Assembly. Each member had one vote. The General Assembly had extraordinary power for a colony. It could make or repeal any law not “repugnant” to the laws of England. Otherwise, it essentially exercised all legislative, executive and judicial power in Rhode Island not exercised by the towns.
As early as 1700 members of the General Assembly served on commissions such as the Committee to Audit the Colony’s Debts. All historians who have studied Rhode Island’s colonial period agree the General Assembly had “paramount power under the provisions of Rhode Island’s corporate charter.” In 1901 Arthur May Mowry wrote:
To this Assembly was given authority to establish such other offices and choose thereto such officers as might seem necessary, together with entire legislative power and the constitution of courts of jurisdiction….There was under the charter no such separation of the three departments of government as is common in our State constitutions; and the General Assembly exercised, throughout its entire existence under the charter, an almost omnipotent sway. The governor had absolutely no official authority except as a member of the Assembly, and acted as its executive agent, merely carrying out its orders.82
Similarly, in 1926 Clifford Chesley Hubbard said:
[The Charter’s] most salient feature was the extensive power placed in the hands of the general assembly….The governor….held no more political power than did any other member of the assembly, each having but one vote along with the deputies….There was nothing like a separation of powers but, of course, it is apropos to remark that this theory did not become important until well over a century later when the writings of Montesquieu had become influential in America.83
In 1958 David Lovejoy commented:
The charter of Rhode Island placed control of the government squarely in the hands of the General Assembly, and according to this charter the only check upon that body was that its laws bee not contrary and repugnant unto, butt, as near as may ‘bee, agreeable to the laws of this our realme of England…’ …Sovereignty lay in the General Assembly, and control of that body meant control of the government itself.84
More recently, Irwin H. Polishook wrote: The real test of the power of the General Assembly may be observed in its appointive powers and the vast dimension of its influence in judicial affairs. Here the range of authority was great. The legislature, not the executive, chose all public officers, administrative and judicial, not directly elected by the freemen.85
The 1790 Declaration of Rights cited by the Environmental Council was never ratified by the General Assembly nor included in the public laws. The General Assembly did not base the 1798 statutory bill of rights on the Declaration.
The Dorr Rebellion and the Constitution of 1842 came about because the Charter no longer addressed the changes occurring in Rhode Island. The General Assembly insisted on retaining a freehold [real estate ownership] requirement for voting. However, Rhode Islanders were increasingly urban and landless. In addition, there were calls for a constitutional bill of rights and a more independent judiciary. With one exception — George Burrill in 1807 – there were no calls for a stronger executive branch. Throughout the period between the Revolution and the Rebellion the General Assembly continued to create and staff ad hoc committees.
In 1818 Elisha Potter, a Federalist described the legislative power:
The powers of this House are unlimited: they being without a written Constitution, are omnipotent: they have as much right to govern the affairs of this State and the citizens as the Supreme Ruler of the Universe has to manage his own affairs.86
In 1836 Thomas Dorr, future leader of the Rebellion, sponsored legislation creating a state banking commission. The bill provided that the General Assembly would appoint the three members of the Committee. Their duties were to examine banks “in the exercise of the visitatorial power of the General Assembly.” The three appointed members, including Dorr, were all legislators.
Dorr led his 1842 rebellion when the various interests vested under the Charter, whom Conley describes as “urban Whigs, industrial interests, and rural Democrats,” obstructed the efforts to obtain universal manhood suffrage. The Rebellion failed miserably but did help prompt the passage of Rhode Island’s first constitution later in 1842. The so-called “Law and Order” Constitution included a bill of rights and provided for reapportionment of the House of Representatives and an independent judiciary. It also provided suffrage for all native born men but continued the freehold requirement for naturalized citizens.
However, the Constitution rejected a strict separation of powers clause such as had been set forth in previous draft constitutions. For example, the People’s Convention had proposed a constitution which provided: “No person or persons connected with one of these [branches] shall exercise any of the powers belonging to either of the others, except in cases herein directed or permitted.” The Landholders’ Convention suggested: “The powers of the government shall be distributed into three distinct branches.” Instead, the Constitution said the Governor would exercise the “chief” executive power while “the General Assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.” The word “distinct” was not used. Conley says the adjective “chief” in conjunction with the rejection of other language demonstrates the Framers intended the Assembly would continue to exercise at least some executive powers.
Moreover, Whigs dominated the Law and Order Convention. They were traditionally hostile to a strong executive. One historian has described Whig ideology:
Of the components of mixed government, the one that historically had most often threatened the others was monarchy or the executive. The usurpation of power by the executive was such a common cause of the recurring cycle of republican degeneration that it had to be forestalled if at all possible. Andrew Jackson’s military past and reputation as a strong-willed leader impatient of restraint did nothing to reassure Whigs on this score. The analogies to Napoleon and Cromwell, who had betrayed their respective revolutions, were still strong in people’s minds.87
Accordingly, Conley says the 1842 Constitution “exalted the power of the legislature,” “stifled the power of the executive,” and “maintained the relationship of the two branches essentially unchanged.”
Fourteen years later, Chief Justice Samuel Ames of the Rhode Island Supreme Court, writing in Taylor v. Place said of the 1842 Constitution:
The executive power had been nominal, merely, under the charter, and the constitution extends it very little. No jealousy of it, or of its assumption by the enterprising and all absorbing legislative department of the government, did, or could exist.88
Nevertheless, Ames found the Constitution did free the judicial branch from legislative control.89
From 1843 to the turn of the century, the General Assembly created numerous commissions and appointed many legislators to them. These included boards of railroad commissioner, shell fisheries, banks, prisons, and the militia. Conley argues that these initial governmental actions, while not determinative, are very significant in analyzing what the Framers intended. Conley reviews editions of the Rhode Island Manual at five year intervals from 1867 to 1900 to compare membership on these commissions with membership in the Assembly. He finds some boards, which he describes as the “major state administrative agencies,” had no legislative members though the Assembly made the appointments. However, many other boards regularly had legislative members, including the Board of Education, Board of Charities and Corrections, Commissioners of Sinking Funds, Railroad Commissioners, Commissioners of Inland Fisheries and Commissioners of Shell Fisheries.
In 1901, Republicans, led by General Brayton, dominated the General Assembly. However, the people elected a Democratic governor, Lucius Garvin. The Republicans responded by passing the Brayton Act. It provided that any gubernatorial nomination not approved in three days by the Senate was rejected and the Senate could fill the vacancy.
In 1908 the Rhode Island Supreme Court held the Brayton Act was constitutional.90 The court said of the appointive power: “It is only a power given to the executive for general convenience in case some other custodian of it has not been provided.”91 Through the next thirty some years the General Assembly often overruled executive appointments and substituted its own. Frequently, those substitutes were legislators.
The Green or Bloodless Revolution of 1935 changed that practice somewhat. Part of the Revolution was accomplished by offering the entire Supreme Court generous pensions if they retired immediately. All five justices accepted. They were replaced by three Democrats and two Republicans.
The General Assembly passed statutes transferring much of the appointment power to the governor. They also passed a statute reducing the terms of district court judges and clerks from six years to three years. Several Republican judges and clerks whose tenures were cut short challenged these actions including the constitutionality of the statute. In Gorham v. Robinson, the new Supreme Court commented:
…the constitution gives [the governor] expressly very little executive power, and other parts of the constitution clearly recognize the power of the general assembly in grand committee to elect officers whose choice is not expressly provided for in the constitution.92
The Court split along party lines with the Democrats upholding the statute and the Republicans dissenting.
For the period from 1940 to 1955, Conley identifies numerous legislators who sat on commissions, including the Sinking Fund Commission, the Commission on Interstate Cooperation, Council of War Agencies, State Council of Defense, Commission of the Financial Problems of State and Municipal Governments, Narragansett Bay Bridge Authority, and the Industrial Code Commission.
Although the 1842 Constitution was amended forty-four times, none of the amendments added to appointive power of the governor until 1986. That constitution gave the governor increased authority over judicial appointments. More recently, the voters amended the Constitution to create the Judicial Nominating Commission to help fill Supreme Court vacancies. The amendment provided that the membership of the Committee would be decided by statute. It authorizes the governor to make “temporary” judicial appointments to fill vacancies created by impeachment or inability. The statute which the General Assembly passed provides that a majority of the Commission’s members will be chosen by the Governor from recommendations made by legislative leaders.
Finally, Conley says there is no empirical evidence that the federal model of separation of powers reduces corruption. Statistics from the Justice Department’s Public Integrity Section place Rhode Island in the middle of a ranking of the states for corruption, near Massachusetts and New Jersey.93 Moreover, many of our local governments have councils and managers which effectively combine the legislative and executive branches.94
Daniel Curran
Daniel Curran is a Rhode Island attorney who does not identify any other interest in this issue. He argues that Rhode Island has long followed a “functional” rather “formalist” approach to separation of powers issues.
…the functional approach emphasizes the core functions of each branch and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions. Under this approach there is considerable flexibility in the moving branch, usually [the legislature] acting to make structural or institutional changes…95
On the other hand,
The formalist approach emphasizes the necessity to maintain three distinct branches of government through the drawing of bright lines demarcating the three branches from each other determined by the differences among legislating, executive and adjudicating.96
Even the federal form of separation of powers is not as strict as the Governor’s supporters claim. James Madison said of Montesquieu’s concept:
…he did not mean that these departments ought to have no partial agency in, or control [sic] over the acts of the other. His meaning, as his own words import….that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.97
The membership of the various public boards indicates legislative influence is not pervasive. There are 164 state departments and agencies with 1602 appointed members. The General Assembly has vested the governor, other state and local officials and private organizations with the power to appoint 1223 of these members. The General Assembly appoints 379 seats on 75 committees. Legislators occupy 229 of those seats.
Some of those public bodies perform functions constitutionally assigned to the General Assembly. For example, Article I, Section 17, gives the General Assembly the authority for the Coastal Resources Management Council. Nevertheless, by statute, the governor and the general assembly each appoint half the members of the Council and the governor appoints the chairperson.
Whatever the merits of the federal separation of powers scheme, Rhode Island can only adopt it by amending its constitution. Article I, Section 1 of the Constitution states:
Right to make and alter Constitution obligatory upon all. In the words of the Father of His Country, we declare that the “basis of our political system is the right of the people to make and alter their constitutions of government; but that constitution which at all times exists, till changed by an explicit and authentic act of the people, is sacredly obligatory upon all.”
Moreover, the Rhode Island Supreme Court is the only body which can determine the constitutionality of a statute. Official boards, like the Ethics Commission, cannot determine the constitutionality of their own regulations or of statutes.
Jay Goodman
Jay Goodman is a local attorney and a professor of political science at Wheaton College. His brief addresses only the issue of whether the Guarantee Clause of the United States Constitution, Article IV, Section 4, requires that the states adopt a separation of powers scheme similar to the federal model. The United States Supreme Court has said numerous times that the federal model is not binding on the states.98
The primary issue is whether the application of the Guarantee Clause is even justiciable. The very first United States Supreme Court case addressing the Clause arose in Rhode Island. During the Dorr Rebellion there was a dispute over which of two disputing parties was the legitimate Rhode Island government. In Luther v. Burden, the Court held this was a political question which, under the Guarantee Clause, could only be resolved by Congress.99
Similarly, in Pacific Telephone Co. v. Oregon,100 an Oregon taxpayer argued that an Oregon tax initiative violated the Guarantee Clause. The Court said:
…the issues presented, in their very essence, are and have long since by this court been, definitely determined to be political and governmental, and embraced within the scope of the powers conferred upon the Congress, and not therefore within the reach of the judicial power.101
Numerous other Supreme Court cases from 1912 to 1980 reach the same conclusion.102
Goodman rejects the argument that state courts can adjudicate Guarantee Clause arguments even if federal courts cannot. No Supreme Court decision has even acknowledged this possibility. Instead, the Court has twice affirmed state supreme court decisions holding such arguments non-justiciable.103 Finally, if state courts could adjudicate such arguments but the United States Supreme Court cannot, there is a serious risk of highly inconsistent rulings.
Rhode Island Wiseuse
Rhode Island Wiseuse (“RIW”) describes itself as an advocacy group which protects individual’s property rights from the actions of environmental agencies by promoting constitutional checks and balances. It acknowledges that it is functionally the creature of attorney Brian Bishop who wrote its brief. RIW opposes the positions of the Governor and the Ethics Commission. It believes the greatest danger presented is from the unregulated delegation of legislative authority to the executive branch. It prefers the present system of appointments which it calls a “blended power construct.”
As a passing matter, RIW disagrees with the argument that the Guarantee Clause requires that Rhode Island adopt the federal model of separation of powers. It observes that if the Clause does have that impact, then the Ethics Commission is probably unconstitutional.
The Governor’s position is not analogous to the king’s in colonial times. This argument would offend the framers of the constitution who provided for a weak executive. Instead, executive agencies should be subject to greater supervision by the legislative branch because otherwise the agencies are largely unregulated. For example, the Governor appoints only one employee at DEM. The rest are “protected civil servants” over whom even the Governor has little control. The Administrative Procedure Act does not provide for sufficient supervision of DEM’s actions due to the agency’s combined roles as policymaker, enforcer and adjudicator and the courts’ highly deferential review of its actions. Madison said:
The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.104
RIW says it is agencies like DEM which meet Madison’s definition, not the General Assembly.
RIW attributes much of the problem with administrative agencies to the willingness of legislative branches to delegate their constitutional powers and obligations to the agencies. It quotes from two views at the opposite ends of the environmental spectrum. A member of the Cato Institute told Congress:
Delegation is a political shell game, allowing legislators to simultaneously support the benefits and oppose the costs of regulation.105
Similarly, David Schoenbrod, attorney for the Natural Resources Defense Council, has written:
Congress made only one law in the 1970 [Clean Air] act-the one limiting emissions of three pollutants from new cars by 90 percent. Otherwise, it decided that EPA and the states should make the rules….Congress sidestepped the two hardest and most fundamental choices: how clean to make the air, and who should bear the cleanup burden….the deception deprived everyone of two key advantages provided by the statutory resolution of a major social conflict-knowing how one was represented in Congress, and an authoritative resolution of the dispute upon which to base expectations and plans.106
Legislative appointments implement “legislative vetoes.” [N.B.: A legislative veto is a mechanism for the legislature to overrule an action or policy of one of the other branches]. Justice White’s dissent in INS v. Chadha107 makes the point:
The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central means by which Congress secures the accountability of executive and independent agencies.108
RIW says the issue is simply whether legislative appointments are a reasonable way to implement a legislative veto. These appointments are easier than having the legislature try to enact new legislation to overturn regulations which the legislature believes contradict statutory intent. If the Governor agrees with the regulation it will take a two-thirds majority of both houses to defeat an executive veto.
RIW argues executive appointments are equally susceptible to conflicts and corrupting influences. Any position of influence can be used for personal advancement.
Finally RIW notes the EPA has called the Narragansett Bay Commission under Rep. Mesolella’s chairmanship the best facility among plants that treat more than 10 million gallons a day.109 It stands in better regard by the business community than many other agencies.110 RIW compares these reviews to those of a “purely executive agency” like the state Department of Transportation. It spends three times the national average per mile of road projects yet the state’s road system is among the worst maintained in the country.111
The ACLU
The Rhode Island Affiliate of the American Civil Liberties Union urges the Court not to render an advisory opinion. Article X, § 3, of the state constitution provides that the Court “…shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly.” The court has a large body of jurisprudence of when it will render such opinions. These decisions indicate this is not an appropriate occasion to render an advisory opinion.
The ACLU argues that even if the court does proceed with an opinion, it should find that the regulation violates various provisions of the federal and state constitutions. The First Amendment protects legislators rights of free speech. The ACLU believes the regulation interferes with legislators rights to comment on governmental matters. The regulation is unconstitutionally vague and overbroad and therefore runs afoul of the Fourteenth Amendment. It is vague because it does not provide enough information for a legislator to discern what conduct is prohibited. It is overbroad because it encompasses much activity which does not pertain to the appointment process. The ACLU also contends that the regulation violates the Speech in Debate Clause of the Rhode Island Constitution, Art. VI, § 4, by chilling the ability of legislators to participate in discussions of public appointments. Finally, the ACLU argues that the Ethics Commission lacks the constitutional authority to enact the regulation.
Conclusion
If the Supreme Court issues an advisory opinion, its decision will either confirm the existing balance of power or effect a huge shift from the General Assembly to the Governor. It seems undeniable that legislators’ ability to sit on public boards or to place their appointees on those boards extends their influence to areas of government and time periods far beyond the months they sit in legislative session in the Capitol. Conceivably, the Court might take a middle ground by ruling the legislators can make appointments to public boards but it is “incompatible” for them to sit on some or all of those boards. Moreover, a decision upholding Regulation 5014 or the federal model for separation of powers may lead to further steps by the Ethics Commission or the Governor to curtail the authority of the General Assembly.
Endnotes
1 147 U.S. 282, 300 (1893).
2 277 U.S. 189 (1928).
3 295 U.S. 602 (1928).
4 Id. at 629.
5 424 U.S. 1, (1976).
6 Id. at 121-22.
7 FEC v. NRA Political Victory Fund, 6 F.3d 821, Id. 826 (D.C. Cir. 1993), cert. dismissed, 513 U.S. 88 (1994).
8 501 U.S. 252 (1991).
9 Id. at 276-77.
10 634 F.2d 408 (9th Cir. 1980), aff’d, 462 U.S. 919, 103 S. Ct. 2764, 77 L.Ed.2d 317 (1983).
11 State v. Jacques, 554 A.2d 193, 196 (R.I. 1989), quoting Chadha v. Immigration and Naturalization Service, 634 F.2d at 425.
12 In re Advisory From the Governor, 633 A.2d 664, 675 (R.I. 1993).
13 City of Pawtucket v. Sundlun, 662 A.2d 40, 58 (R.I. 1995).
14 Appointments by the Legislature Under the Rhode Island Separation of Powers Doctrine, 1 Rog. Williams Univ. L. Rev. 1, 55 (Spring 1996) (hereinafter “Whitehouse”).
15 353 A.2d 723 (Conn. 1974).
16 Opinion of the Justices, 302 Mass. 605, 19 N.E.2d 807, 818 (1939); see also, Opinion of the Justices, 309 N.E.2d 476 (Mass. 1974); In re: Opinion to the Governor, 391 N.E.2d 25 (Mass. 1976); In re: Opinion of the Justices, 21 N.E.2d 551, 556-57 (Mass. 1939).
17 309 N.E. 2d 476 (Mass. 1974).
18 In Re Advisory Opinion to the Governor, 612 A.2d 1, 18 (R.I. 1992).
19 See, e.g., City of Pawtucket v. Sundlun, 662 A.2d 40, 58 (R.I. 1995); In Re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 18 (R.I. 1992).
20 633 A.2d 664 (R.I. 1994).
21 Id. at 674.
22 C.A. No. 84-3737 (R.I. Super. Ct. April 21, 1986).
23 Id. at 13
24 Easton’s Point Association v. Coastal Resources Management Council, 522 A.2d 199 (R.I. 1987).
25 15 R.I. 505 (1887).
26 Id. at 506.
27 67 R.I. 197, 21 A.2d 267 (1941).
28 Id. at 202.
29 28 R.I. 607 (1908).
30 57 R.I. 1 (1936).
31 Whitehouse, at 22.
32 Article II, § 2.
33 Metropolitan Washington Airport Authority v. Noise Abatement Center, 501 U.S. 252, 277n.23 (1991).
34 In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 13 (R.I. 1992).
35 In re Commission on Judicial Tenure & Discipline, 670 A.2d 1232, 1234 (R.I. 1996).
36 In re Advisory Opinion from the Governor (Revolving-Door Legislation), 633 A.2d 664, 671 (R.I. 1993).
37 Patrick Conley, Democracy in Decline: Rhode Island’s Constitutional Development 1776-1841 (1977).
38 James Madison in 1 Annals of Congress 481-82 (1789).
39 Meyers v. United States, 272 U.S. 52, 116 (1926), quoting James Madison in 1 Annals of Congress 581 (1789).
40 Charles de Montesquieu, The Spirit of the Laws 157 (Anne M. Cohler, et al. eds. & trans., 1989) (1748).
41 Arnold, S.G., History of the State of Rhode Island, Vol. 1.
42 Records of the Colony of Rhode Island, proceedings of March 1, 1664, vol. II at 26-27.
43 Friedman, Lawrence M., A History of American Law, at 50-51 (2nd ed. 1985).
44 Id.
45 Kevin Leitao, Rhode Island’s Forgotten Bill of Rights, 1 R.W.U.L.R. 1, 31-61(Spring 1996).
46 Simister, F.P., The Fires Center, Rhode Island in the Revolutionary Era, (1976).
47 Laws of Rhode Island, 1798 at 66.
48 (Re: Dorr) 3 R.I. 300 (1854).
49 Id. at 304-05
50 In Re: The Investigating Commission, 16 R.I. 751 (1887).
51 R.I.Gen.Laws § 42-35-1, et seq.
52 P.L. 1876 ch. 556 and P.L. 1877 ch. 611.
53 635 A.2d 1155 (R.I. 1994).
54 Id. at 1165.
55 In re Opinion To The Governor (Reapportionment), 95 R.I. 109, 115, 185 A.2d 111, 114 (1962).
56 See, e.g. Cox v. State, 78 S.W. 756, 757 (Ark. 1904); State ex rel. Martin v. Melott, 359 S.E.2d 783, 787 (N.C. 1987).
57 Devlin, Toward a State Constitutional Analysis of Allocation of Powers, 66 Temp. L. Rev. 1205, 1244, n.138 (1993).
58 Gorham v. Robinson, 57 R.I. 1, 10, 186 A. 832, 838-839 (1936).
59 Kass v. Retirement Board of Employees Retirement System, 567 A.2d 358, 361 (R.I. 1989).
60 Narragansett Indian Tribe v. State, 667 A.2d 280, 281-82 (R.I. 1995).
61 Id.
62 In re Advisory From the Governor (Revolving-Door Legislation), 633 A.2d 664, 666 (R.I. 1993).
63 Narragansett Indian Tribe v. State, 667 A.2d at 281.
64 688 A.2d 288 (R.I. 1997).
65 Id. at 292.
66 In re Request of the Senate For An Advisory Opinion (Election of Lieutenant Governor by the General assembly in Grand Committee), 696 A.2d 277, 280 (R.I. 1997).
67 101 R.1. 119, 221 A.2d 103 (1966).
68 Id. at 121, 221 A.2d at 105.
69 In Re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 19 (R.I. 1992).
70 660 A.2d 710 (R.I. 1995).
71 Id. at 715
72 Providence Journal-Bulletin, July 27, 1996, at A-1, A-5.
73 Letter of Geoffrey C. Hazard, Jr. to Hon. Richard Morsilli, Chair, August 9, 1996, at 2-3.
74 Article I, Section 6, para. 2.
75 Article II, Section 2, para. 2.
76 G. Caspar, SeparatedPowers, 7-12 (1997).
77 Z. Chafee, Jr., The Constitutional Convention that Never Met 27 (1938).
78 City of Pawtucket v. Sundlun, 662 A.2d 40, 44 (R.I. 1995).
79 Taylor v. Place, 4 R.I. 324 (1856).
80 Id. at 348-50.
81 Schneider v. Bennett, 547 P.2d 786 (Kansas 1976).
82 Arthur May Mowry, The Dorr War (Providence, 1901).
83 Clifford Chelsey Hubbard, “Constitutional Development in Rhode Island” (doctoral dissertation, Brown University, 1926).
84 David S. Lovejoy, Rhode Island Politics and the American Revolution, 1760-1776 (Providence, 1958).
85 Irwin H. Polishook, Rhode Island and the Union, 1774-1795 (Evanston, Ill., 1969).
86 Providence Patriot, April 14, 1818.
87 Daniel Walker Howe, The Political Culture of the American Whigs, (University of Chicago Press, 1979).
88 4 R.I. 324, 349-51 (1856).
89 Id.
90 In the Matter of the Filling of Vacancies by the Governor, 28 R.I. 602-06 (1908).
91 Id.
92 57 R.I. 1, 17-18 (1936).
93 Id.
94 Edgar L. Leduc, “Separation of Powers is Overrated,” Letter to the Editor, Providence Journal, April 27, 1998.
95 Annotations of Cases Decided by the Supreme Court of the United States, p.63 (Congressional Research Service, Library of Congress, 1992 ed.).
96 Id.
97 Federalist Papers, No. 47.
98 See, Whalen v. United States, 445 U.S. 684, 689n.4 (1979) (“[T]he doctrine of separation of powers embodied in the federal constitution is not mandatory on the states.”); Sweezy v. New Hampshire, 354 U.S. 234, 255 (1956)(Frankfurter, J., concurring) (“….this court has held the concept of separation of powers embodied in the United States Constitution is not mandatory in state governments.”); Dreyer v. Illinois, 187 U.S. 71, 84 (1902).
99 Luther v. Burden, 48 U.S. (7 How.) 1, 41, 12 L.Ed. 581, 599 (1849).
100 223 U.S. 118, 149-51, 32 S.Ct. 230-231, 56 L.Ed. 377, 385-86 (1912).
101 Id.
102 See, e.g., Kiernan v. Portland, Oregon, 223 U.S. 151, 163-64, 32 S.Ct. 231, 233-234, 56 L.Ed. 386, 389 (1912); City of Rome v. United States, 446 U.S. 156, 182n.17, 100 S.Ct. 1548, 64 L.Ed.2d. 119, 143 (1980) (“[W]e do not reach the merits of the appellants’ argument that the Act violates the Guarantee Clause…since that issue is nonjusticiable.”).
103 Cochran v. Louisiana State Board of Education, 168 Ls. 1030, 1032-33, 123 So. 664 (1928), aff’d, 281 U.S. 374, 50 S.Ct. 335, 74 L.Ed. 913 (1930); State v. Mountain Timber Co., 75 Wash. 581, 590, 135 P. 645, 649 (1913), aff’d, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685 (1917).
104 Federalist No. 47.
105 Testimony of Jerry Taylor, Director of Natural Resources Study, The Cato Institute, submitted to the Subcommittee on Commercial and Administrative Law, House Judiciary Committee, September 12, 1996.
106 Schoenbrod, David, Power Without Responsibility: How Congress Abuses the People Through Delegation, p. 73.
107 462 U.S. 919 (1983).
108 462 U.S. at 967.
109 Best in the Nation, Providence Journal, September 28, 1995.
110 NBC Gets Mostly High Marks From Industries, Providence Journal, June 19, 1995.
111 Roads Ranked Nation’s Worst, Providence Journal, May 5, 1998.
112 See, Topf, The Jurisprudence of the Advisory Opinion Process in Rhode Island, 2 Rog.Williams Univ. L. Rev. 207 (1997).
