Separation of Powers

 

Background and History

What’s been accomplished since 2004?

Common Cause Rhode Island’s members were a crucial part of the historic 2004 vote which amended the state constitution in four critical ways:

  • It declared the three branches of state government separate and distinct (RI Const. Art. V);
  • It barred legislators from sitting on or appointing others to boards with executive powers (RI Const. Art. III § 6);
  • It repealed the so-called plenary powers clause, which, according to a 2000 Rhode Island Supreme Court ruling, allowed the General Assembly to exercise any power whatever unless the state constitution expressly forbade the practice (formerly RI Const. Art. VI § 10);
  • It vested the appointment of members of executive boards in the governor, subject to Senate confirmation. This part of the amendment also allows the General Assembly to vest certain appointments, by law, with department heads and general officers within their respective departments (RI Const. Art. IX § 5).

During the 2005 and 2006 legislative sessions, General Assembly abolished 13 inactive boards and repealed two others. The General Assembly also amended the statutes affecting 47 active agencies so that they would conform to the Separation of Powers amendment.

By the end of the 2006 session, however, despite the best efforts of Common Cause Rhode Island and its reform partners, the Assembly refused to amend the statutes governing four agencies affected by the Separation of Powers amendment:

  • The Coastal Resources Management Council (RIGL 46-23)
  • The Narragansett Bay Commission (RIGL 46-25)
  • The I-195 Redevelopment Board (RIGL 37-22)
  • The Rhode Island Human Resource Investment Council (RIGL 42-102)

At the beginning of the 2008 legislative session, over three years after the passage of the Separation of Powers amendment by 78.3 percent of the voters, appointments to those four boards still violate the amendment.

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SOP and the Coastal Resource Management Council

On the last day of the 2007 legislative session, the Rhode Island House of Representatives repeated an assault on Separation of Powers that had failed in 2006. The assault came in the form of House bill 2007-H 6556, sponsored by Rep. John DeSimone, D-Providence and chair of the House Committee on Separation of Powers, which asked the Rhode Island Supreme Court to rule on four questions of law.

Two of the questions ask whether the General Assembly’s leaders can continue to make eight of 15 appointments to the Coastal Resources Management Council (CRMC). (The 16th member is the director of the Department of Environmental Management, sitting ex officio.) A third question asks the court whether CRMC is “a legislative function.”

The fourth question (the third in order) appears innocuous:

“(3) Is the Constitutional Amendment to Article IX, Section 5, so-called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority, self executing or does it require legislative enactment for its implementation?”

Art. IX § 5, as amended by the voters in 2004, provides that only the governor can appoint the members of state agencies which execute state law. The governor’s power is checked by the requirement that the Senate approve his nominations - a classic feature of American Separation of Powers since the late 18th century.

If Art. IX § 5 is “self-executing,” this section of the constitution does not need to be implemented by laws passed by the General Assembly.

If the court rules that Art. IX § 5 is not self-executing and does “require legislative enactment for its implementation,” then the General Assembly would have to pass a law before any gubernatorial appointment could take effect. Such a ruling would essentially give the General Assembly a veto power over the constitutional amendment passed by the voters in 2004.

Strangely, H 6556 was not sent to the Supreme Court after its passage on June 22nd, 2007. It lay “on the desk” throughout the summer and fall until a media inquiry caused the request to be sent on December 10, 2007.

In 2008 the Rhode Island Supreme Court heard oral arguments in "In re Request for Advisory Opinion from the House of Representatives (Coastal Resource Management Council)." The Court's unanimous opinion, published in December 2008, was a sweeping victory for supporters of Separation of Powers. In the opinion the Court asserted that the Separation of Powers Amendments are self-executing, and therefore no further legislative action is needed for them to go into effect.

The Supreme Court's Advisory Opinion "In re Request for Advisory Opinion from the House of Representatives (Coastal Resource Management Council)."

Since the December 2008 opinion there has been no further legislative action to reconfigure the CRMC. However, in June 2009 the Rhode Island Senate provided advice and consent for three current members of the Council who had previously not received legislative approval, as well as one new gubernatorial nominee. In October 2010 Governor Carcieri nominated four new appointees, but the Senate has not yet acted on them.

 

 

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