PROVIDENCE – The R.I. Supreme Court, in one of its final landmark rulings under departing Chief Justice Frank J. Williams, left, has rejected House arguments that lawmakers should be permitted to serve on the state Coastal Resources Management Commission (CRMC) and that the agency should be considered a legislative body.
Environmentalists and good-government groups hailed the ruling as an important victory.
The House of Representatives had asked the court to issue an advisory opinion on four questions related to the Separation of Powers Amendment – the revisions to Article IX, Section 5, of the state Constitution that were approved by Rhode Island voters on Nov. 2, 2004 – and a pending measure (2007-H 6266) that would permit members of the R.I. General Assembly to serve on the CRMC.
• Would the pending legislation, if approved, violate the state’s Separation of Powers constitutional amendment?
• Would it allow the House speaker to appoint public members to the CRMC?
• Is the CRMC, “by its nature, purpose and operation, a legislative function?”
• Is the Separation of Powers provision self-executing or does it require legislative enactment for its implementation?
In a 23-page opinion issued last night, the Supreme Court noted that previous rulings have found that “the General Assembly’s power to regulate marine fisheries is broad and plenary,” and have “implicitly recognized that the coordinate branches of government should ordinarily defer to the General Assembly’s exercise of its plenary legislative powers.” But “the plenary powers conferred upon the General Assembly … are nonetheless circumscribed.”
“It is clear to us” that the CRMC’s powers and functions “are manifestly executive in nature,” the justices wrote.
The court acknowledged that CRMC is “an independent body not subject to direct gubernatorial supervision or control,” and one that “routinely combines executive, quasi-legislative and quasi-judicial powers.”
But it also noted that the agency is authorized by law to “enforce” environmental laws, “administer” programs and “enforce and implement riparian rights”; its staff and conservation officers, like state and local police, are empowered “to issue written cease-and-desist orders”; and the agency’s director and chair are authorized to assess fines.
“To state that all of the CRMC’s powers and functions are legislative would be to blind oneself to that reality … to willfully ignore the language of Article 5 of the Rhode Island Constitution,” the justices wrote.
The high court also found that:
• Yes, the separation-of-powers limitations are “self-executing.”
The supporting provisions “are manifestly more than mere aspirational statements of general constitutional principles; they neither explicitly mandate nor inherently require further legislative action,” the justices said.
• No, lawmakers may not serve on the CRMC, nor may the House Speaker appoint members to that body.
“In our opinion, the proposed CRMC legislation … cannot be reconciled with our Constitution to the extent that it would permit sitting legislators to serve on the CRMC and would allow the General Assembly to make some appointments to that body,” the justices said.
But, they added, “the General Assembly is free to adopt, by law, any other approach to carrying out its duty to preserve the natural resources of the state pursuant to article 1, section 17, that is not repugnant to our Constitution.”
“In the future, we may be less inclined to respond substantively” to similar requests from either chamber of the Assembly, the justices warned. Requests for advisory opinion on existing laws properly should come only from the governor, they said, and the House measure in question “is, in effect, a reenactment (with virtually no substantive alteration) of the CRMC enabling statute that is currently in force.”
It was only “the existence of significant questions of law in an area of important public concern [that] convinced us, not without some hesitation, that we should respond” to the House request, they wrote.
“We conclude by respectfully urging the Governor and the General Assembly to discuss the various subjects addressed in this advisory opinion, with the goal of reaching a mutually satisfactory agreement regarding the rights and duties conferred upon each department by the terms of our Constitution,” the justices wrote.
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Common Cause Rhode Island, which for more than a decade has ranked the separation-of-powers issue among its top priorities – heralded the opinion as “the final chapter” in a long-running dispute.
“The voice of the people has been heard at long last, and Separation of Powers has been achieved,” John Marion, executive director of the public-policy and government watchdog group, said in a statement last night. The high court ruling “will finally end the continued stalling by the legislature to implement the 2004 amendment,” he said.
Since the amendment was passed, 57 boards and commissions have been reconfigured to adhere to its provisions, Common Cause noted. The high court’s declaration that the amendment is self-executing “paves the way for the governor to submit names for confirmation immediately for the remaining boards and commissions without any need for legislation,” the watchdog group said.
“This is a clear victory for Common Cause – and more importantly, for all Rhode Islanders,” Marion added.
Praise for the ruling also came from the Conservation Law Foundation, which joined in a brief opposing legislative involvement in the CRMC. Cynthia Giles, director of the foundation’s Rhode Island office, said the decision would help ensure that the state’s coastline is protected.
“CRMC needs to be a body that can make decisions about the future of our coastline free from Legislative pressures,” Giles said in a statement. “The Legislature’s insistence that it appoint members of CRMC – despite a constitutional amendment saying exactly the opposite – has been a big contributor to the controversy that has surrounded CRMC for so many years.”
Information about the R.I. Supreme Court – including its 23-page opinion “In re: Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council)” – is available from the R.I. Administrative Office of State Courts at www.courts.ri.gov.
