Town of Johnston v. Santilli

Justice ROBINSON,

dissenting.

Given my understanding of (1) the General Assembly’s constitutionally mandated role with respect to public education and (2) the General Assembly’s statutory delegation of its own broad powers and responsibilities to the several school committees of the state, I cannot in good conscience join in my colleagues’ legal conclusion that the charter of the Town of Johnston somehow partially overrides a long-standing and far-reaching state statute and permits someone other than the elected members of the Johnston School Committee to designate the attorney who will represent the school committee as that body tries to carry out the broad and vitally important duties that the General Assembly has delegated to it. I sincerely acknowledge the thoughtful nature of the analysis upon which the majority opinion is based; but my own review of the relevant statutory charter provisions in light of certain key canons of statutory construction has led me to a different conclusion, and therefore I must respectfully but vigorously dissent.

I concede that the interpretive question which this case presents is reasonably close. Nevertheless, in the absence of specific language in the charter dealing with the issue of legal representation for the school committee, I am unable to join in an opinion that in effect holds that the General Assembly’s ratification of the Johnston Town Charter (which contains notably unspecific language about the entities to be represented by the town solicitor) constituted an implied repeal of G.L.1956 § 16-2-9 to the extent that said statute empowers the Johnston School Committee to be able to choose its own legal counsel. I cannot agree that in this instance there was any partial implied repeal of that statute — a statute which has constituted for a long while a key directive with respect to the implementation of public education in this state.8

*134Discussion

I

The Statutorily Conferred Powers of School Committees

Although it is crystal clear that article 12 of the Rhode Island Constitution accords vast responsibility and power to the General Assembly with respect to the promoting of public education,9 it is equally clear that, by its enactment of title 16 of the General Laws, the General Assembly long ago chose to delegate much of that constitutionally based responsibility to the school committees of the several cities and towns. In that regard, the very broad language of section 16-2-9 is especially noteworthy:

“(a) The entire care, control, and management of all public school interests of the several cities and towns shall be vested in the school committees of the several cities and towns.”10

The potency of that simple declarative sentence, written in laudably plain English, is remarkable. In my opinion, diminishment of any of the broad statutorily conferred powers of school committees should not lightly be inferred; the presumption should be that the school committees of the several cities and towns retain those powers unless they are explicitly removed by the General Assembly. In view of the sweeping nature of the General Assembly’s delegation of its responsibility concerning public education in section 16-2-9, it is my opinion that the Johnston Town Charter should not be read as broadly as the majority does.

I am convinced that the right to hire counsel is an inherent management right of school committees; and, since the General Assembly in the exercise of its plenary responsibility for education has not chosen to remove that right by specific legislation, it is my view that the Johnston School Committee retains the right and power to choose its own counsel.

II

Latent Ambiguity

Turning now with narrower focus to the specific legal issue at hand, it is undisputed that the most crucial language in the Johnston Town Charter is the following portion of section 6-4 of that document:

“The town solicitor shall be the attorney for the town and legal advisor to the mayor, town council, and all other departments, offices and agencies of the town government and shall direct the work of the assistant solicitors.”

The ultimate question raised by this case is: how far-reaching is the term “all other departments” as it appears in the quoted section of the charter? In my judgment, a school committee does not *135constitute simpliciter one of the “departments” of municipal government.

The majority opinion considers the words “all other departments” in the charter as being a sufficiently clear statement by the legislators of their intent to include the school department among the several town departments for whom the town solicitor shall be the attorney.11 I appreciate the attractiveness of that straightforward reading of the charter, but I believe that it fails to take sufficiently into account the radical difference between the school department and the rest of town government (which is overseen by the mayor and the town council). It is because of that radical difference that I do not believe that the generic reference in the Johnston Town Charter to “all other departments” suffices to repeal or restrict by implication section 16-2-9 of the General Laws, which constitutes the General Assembly’s uniquely broad and powerful delegation of its responsibility for education to the school committees of the several cities and towns.

Even language that at first glance appears to be quite clear is sometimes infected with latent ambiguities.12 Many apparently clear statements must be understood contextually. Giving due consideration to the context of a statement does not represent an abandonment of the plain meaning rule;13 it is rather a refinement of that rule, reflecting the inherent limitations of human language. Judge Easterbrook of the Seventh Circuit has provided an instructive example relative to the need to consider context when interpreting language:

“If someone at a dinner party says: ‘Pull up a chair to the table’, he means a table chair and not an overstaffed easy chair, even though both are called chairs.” In the Matter of Erickson, 815 F.2d 1090, 1092 (7th Cir.1987).14

*136In my opinion, the term “department” is not unambiguous in the context presented here, and therefore the “plain meaning rule” is inapplicable. I believe that the word “department” in the charter is not as crystalline as it first appears: upon reflection, one realizes that the contextual reality is complex.15 There are departments and there are departments. To put it plainly, the Johnston School Department (which reports to the school committee and not to the town government as such) is radically different in kind from the other town departments: by virtue of the sweeping language of section 16-2-9, the General Assembly’s constitutional responsibility for public education has been delegated to the Johnston School Department (through the school committee). That simple fact profoundly differentiates this one department from all the others.

In addition, I find highly significant the fact that, pursuant to the terms of the Johnston Town Charter, the five members of the Johnston School Committee are elected in a popular election. They are chosen by the people through the electoral process, and then the extensive responsibilities for public education which the General Assembly has delegated to school committees become theirs. This fact further differentiates the school committee (and the school department which it supervises) from the other departments of town government — which are not subject to supervision by a separately elected group of officials but rather are directly supervised by the central town government.

Ill

There Was No Repeal by Implication

It is a basic principle of statutory construction that repeals by implication are disfavored. Berthiaume v. School Committee of Woonsocket, 121 R.I. 243, 248, 397 A.2d 889, 893 (1979).16 Yet, the major*137ity’s intei'pretation of the charter in effect treats the General Assembly’s approval of the charter as constituting a sub silentio repeal by implication of one of the powers that I consider to be necessary for school committee autonomy — namely the right to choose who will be its legal representative.17

The comprehensive reach of section 16-2-9 should be constantly borne in mind. That statute vests “[t]he entire care, control, and management of all public school interests” in Rhode Island’s various school committees. (Emphasis added.) Assuming, as I do, that the right to control legal representation is a core aspect of management, I do not believe that the noticeably general language contained in the Johnston Town Charter should be understood as nullifying that important right, which springs from a statute that deals comprehensively with all aspects of public education.18 The charter that was ratified by the General Assembly is utterly lacking in any words of specificity with respect to school committees.19

It is undeniable that the charter and section 16-2-9 of the General Laws are in pari materia, and therefore there comes into play the rule that in such a situation it is proper to harmonize, whenever possible, two provisions that at first glance seem to be irreconcilable. See, e.g., Kells v. Town of Lincoln, 874 A.2d 204, 212 (R.I.2005) (“When confronted with statutory provisions that are in pari materia, this Court will ‘construe them in a manner that attempts to harmonize them and that is consistent with their general objective scope.’ ”) (quoting State v. Dearmas, 841 A.2d 659, 666 (R.I.2004)); State v. Ahmadjian, 438 A.2d 1070, 1081 (R.I.1981); see also Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 351 (1936) (“The cardinal rule is that repeals by implication are not favored. Where there are two acts upon the same subject, *138effect should be given to both if possible.”); DelSanto v. Hyundai Motor Finance Co., 882 A.2d 561, 562 n. 2 (R.I.2005) (“It is a fundamental principle of statutory interpretation that every effort is to be made to harmonize statutes.”); see generally Tennessee Valley Authority v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978).

I am convinced that harmonization of the charter and of the statute can be achieved in this instance by not reading the charter with maximal broadness. Instead, we should read the charter as not including the unique entity20 that is the school department as being included among the entities which are to be represented by the town solicitor. If the school department is understood as being fundamentally different in kind from the other departments, then it becomes entirely possible to harmonize the two enactments.

IV

Some Significant Precedents

Before concluding this dissenting opinion, I feel that I should comment briefly on some of the decided cases that are referenced and discussed in the majority opinion.

A

Royal v. Barry

I believe that the view that I express in this dissenting opinion is entirely consistent with the following quite definitive statement by this Court in the case of Royal v. Barry, 91 R.I. 24, 30-31, 160 A.2d 572, 575 (1960):

“[N]o provision affecting education contained within a home rule charter, so called, can effectively regulate the conduct of school committees as agents of the state unless expressly validated by an act of the general assembly. In other words a school committee’s exercise of its powers cannot be regulated by local legislation whether by ordinance or charter.”

The majority opinion’s reference to article 13 of the amendments of the Rhode Island Constitution (the “Home Rule” amendment) fails to persuade me that article 12 of the same amendments to the constitution has thereby been trumped. As this Court so forcefully stated in Royal, 91 R.I. at 31, 160 A.2d at 575:

“Article [12] of the constitution expressly and affirmatively reserves to the legislature sole responsibility in the field of education and nothing contained in article [13] is in derogation thereof.”21

*139B

Cummings v. Godin

It is true that in Cummings v. Godin, 119 R.I. 325, 331, 377 A.2d 1071, 1074 (1977), this Court noted in passing that the defendant in that ease, a public school teacher, was “employed by a department of the city * * It is important to bear in mind, however, that the entire focus of that case was on the principle that school committees are not state agencies but rather entities that act locally; the opinion in Cummings does not in any way purport to analyze or define the word “department.” The issues that were litigated in that case have no substantive bearing on those which this case involves.

C

Coventry School Committee v. Richtarik

The majority opinion relies heavily on the case of Coventry School Committee v. Richtarik, 122 R.I. 707, 411 A.2d 912 (1980). For my part, I do not consider Richtarik to be dispositive. My colleagues in the majority state that they “fail to see any meaningful distinction between the charter provision in Richtarik and the one at issue here.” I respectfully disagree, since I believe that the two charters are radically distinguishable. The Coventry Town Charter specifically mentioned the school committee, whereas the Johnston Town Charter does not. Absent the sort of specificity that was contained in the charter at issue in Richtarik, I am not able to conclude that in this case there has been the sort of express validation by the General Assembly that was the determinative factor in Richtarik.

It is noteworthy that the following language was contained in the Coventry Town Charter at issue in Richtarik:

“The town solicitor shall appear for and protect the rights of the town in all actions, suits, or proceedings, civil or criminal, in law or equity, brought by or against it, or for or against any of its departments, offices or agencies, including the council, the manager and the school committee * * Richtarik, 122 R.I. at 711, 411 A.2d at 914 (quoting from the Coventry Town Charter).

The very specific reference to “the school committee” in the portion of the Coventry Town Charter dealing with the responsibilities of the town solicitor is crucial. No similar language specifically referencing the school committee appears in the Johnston Town Charter. (In addition, the Court in Richtarik went out of its way to observe that, under the Coventry Town Charter, “the ‘school committee’ is specifically designated as being within the departmental category.” Richtarik, 122 R.I. at 714, 411 A.2d at 915.)

Conclusion

In view of the sweeping nature of section 16-2-9, a key component of the statutory mechanism through which the General Assembly delegated much of its constitutional responsibility for education to the school committees of the several cities and towns, I do not believe that the anodyne reference in section 6-4 of the Johnston Town Charter to the “legal advisor to the mayor, town council, and all other departments” should be understood as referring to the Johnston School Committee.22 Therefore, I respectfully dissent.

. I agree with the majority that the issue before us in this case is purely legal and that, *134therefore, the de novo standard of review applies.

. Article 12, section 1, of the Rhode Island Constitution reads in pertinent part as follows:

"The diffusion of knowledge, as well as of virtue among the people, being essential to the preservation of their rights and liberties, it shall be the duty of the general assembly to promote public schools * * * and to adopt all means which it may deem necessary and proper to secure to the peo-pie the advantages and opportunities of education * *

. The right to hire counsel seems to me to be an inherent component of the statutorily delegated responsibility for the “entire care, control, and management of all public school interests * * G.L.1956 § 16-2-9(a). It would be difficult to identify another right that is more quintessentially a management right than the right to determine who shall be the legal advisor and the legal representative of a school committee.

. It is also interesting to note that section 6-4(1) of the Johnston Town Charter imposes on the town solicitor the duty to appear for the town in all actions brought by or against the town "or for or against any of its departments, including the board of canvassers and registration.” One can infer from that clarifying statement that the drafters of the charter were aware of the elusiveness of the word "department.”

. Although at first blush it may seem counterintuitive to maintain that the words "all other departments” in the charter do not necessarily mean each and every department, such restrictive interpretations of seemingly broad language are by no means unprecedented. Courts frequently construe apparently very broad words in a statute or similar provision as being in actuality more circumscribed in scope. See, e.g., Raso v. Wall, 884 A.2d 391, 395 (R.I.2005) (construing statutory language providing that an application for post-conviction relief “may be filed at any time” as meaning "at any reasonable time”); see also Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 780, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (referring to the Supreme Court’s "longstanding interpretive presumption” that the word "person” in a statute "does not include the sovereign”); United States v. Palmer, 16 U.S. (3 Wheat.) 610, 631, 4 L.Ed. 471 (1818) (Marshall, C.J.) (interpreting in a restrictive manner the facially all-inclusive words "any person or persons”); see generally, Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892).

. See, e.g., Kells v. Town of Lincoln, 874 A.2d 204, 213 (R.I.2005) ("When the language of a statute, or, correspondingly a charter, is clear and unambiguous, we interpret the statute literally and give the words their plain and ordinary meaning.”); Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996).

. Similarly, in addressing the need to consider context as one interprets any communication, Professor Reed Dickerson’s perceptive treatise on statutory interpretation quotes the following example provided by a famous twentieth century philosopher:

“Some one says to me: ‘Shew the children a game.’ I teach them gaming with dice, *136and the other says 'I didn't mean that sort of game.' ” Reed Dickerson, The Interpretation and Application of Statutes 111-12 (1975) (quoting Ludwig Wittgenstein, Philosophical Investigations 33 n. (G.Anscombe, transl.1953)).

. The famous observation of Justice Holmes in the case of Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 62 L.Ed. 372 (1918), comes to mind: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”

. In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the United States Supreme Court succinctly summarized as follows the thrust of the canon of statutory construction dealing with the disfavored nature of repeals by implication — a venerable canon which is an aid to us in our heuristic efforts just as it is an aid to the Justices of the Supreme Court in Washington:

"In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” Id. at 550, 94 S.Ct. 2474.

The following sentences from an opinion of the Supreme Court of Wyoming cogently summarize the implications of the interpretive canon that counsels that repeals by implication are disfavored:

"One asserting implied repeal bears the burden of demonstrating beyond question that the legislature intended that its later legislative action evinced an unequivocal purpose of affecting a repeal. Furthermore, it must be shown that the later statute is so repugnant to the earlier one that the two cannot logically stand together, or that the whole subject of the earlier statute is covered by the later one having the same object, clearly intending to prescribe the only rules applicable to the subject.” Shumway v. Worthey, 37 P.3d 361, 367 (Wyo.2001).

In accordance with those venerable principles, I believe that the proper approach in this case is to read the language in the charter as not extending to the Johnston School Committee. It is entirely possible to reconcile *137section 16-2-9 with the charter provision at issue by reading the charter as addressing all departments except for the school committee (which is not a department in the same sense that the others are).

. Courts should be even more reluctant to find a repeal by implication when the statute at issue is of venerable vintage (as is section 16-2-9). I believe that there is a great deal of wisdom in the rule that "it is not to be presumed that the legislature in the enactment of statutes intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.” Los Angeles County v. Frisbie, 19 Cal.2d 634, 122 P.2d 526, 532 (1942).

. It should go without saying that I do not question the ultimate right of the General Assembly to remove with respect to all or some school committees the power to choose legal counsel from among the powers delegated to school committees. See generally Coventry School Committee v. Richtarik, 122 R.I. 707, 411 A.2d 912 (1980). As to the case at bar, however, I simply do not believe that the General Assembly has taken that step.

. Although I firmly believe that this case can be decided on the basis of settled principles of statutory construction, I cannot help but recall the old maxim that actions speak louder than words — and I find it worthy of comment that, even though section 6-4 of the charter was ratified in 1963, for more than three decades thereafter the Johnston town government apparently did not read the charter as including the school department among the departments to be represented by the solicitor. See United States v. Philbrick, 120 U.S. 52, 59, 7 S.Ct. 413, 30 L.Ed. 559 (1887) (Harlan, J.) ("A contemporaneous construction by the officers upon whom was imposed the duty of executing those statutes is entitled to great weight; and since it is not clear that that construction was erroneous, it ought not now to be overturned.”); see also Reed & Reed, Inc. v. Weeks Marine, Inc., 431 F.3d 384, 388 (1st Cir.2005) (stating, in the context of contract interpretation, that "the parties’ subsequent course of performance may be instructive”).

. I am in full agreement with the hearing justice in this case who quite properly made reference to "[t]he independent and unique nature of the school committee * *

The fact is that school committees, because of the delegation to them by the General Assembly of its plenary responsibility with respect to education, are radically distinguishable from other municipal departments. In my judgment, the hearing justice in this case was entirely correct when he observed:

"Although school committees are agents of the state, they perform the state function of educating children residing in specific communities. It is this function which places school committees in a unique position, unlike any other municipal agency or department. In that respect, school committees are sui generis; when performing their delegated responsibilities of educating children, they are legally neither a staté agency nor a municipal department.”

. See also Amico's Inc. v. Mattos, 789 A.2d 899, 903 (R.I.2002) (“[A]s has long been the case, the Legislature continues to exclusively occupy the fields of education, elections, and taxation, thereby precluding any municipality's foray into these areas, absent specific legislative approval.”).

. This case is clearly an important one, and the underlying issue of public policy (viz., *140who shall choose legal counsel for school committees) may well arise in other towns and cities. For this reason, I respectfully suggest that the issue might well be worthy of immediate legislative attention.

Like the majority, I have today focused only on the facts of the case before us. But I cannot blind myself to the larger issue. Whether good education and responsible government would best be served by having separate or unified legal representation (prescinding for the moment from situations of inherent ethical conflict) is the sort of question with which legislative bodies are best suited to grapple.