Irons v. Rhode Island Ethics Commission

Justice SUTTELL,

dissenting.

Although I concur with much of the majority’s analysis concerning the two conflicting constitutional provisions at issue in this appeal, I respectfully disagree with its ultimate conclusion.

As the majority cogently articulates, speech in debate immunity has long been an integral protection enjoyed by legislative bodies in the common-law tradition, one that plays a vital role in ensuring the independence of the Legislature. See Holmes v. Farmer, 475 A.2d 976, 982 (R.I.1984) (the speech in debate clause enables *1136representatives to execute the core legislative functions of their office without fear of civil or criminal prosecution and ensures the separation of powers among the coordinate branches of government); see also United States v. Brewster, 408 U.S. 501, 516, 525, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972). Without question, the speech in debate clause, codified in article 6, section 5, of the Rhode Island Constitution, has a rich and storied history. Its roots can be traced back as far as 1455, amidst the bitter and protracted dispute between Parliament and the English Crown. See Holmes, 475 A.2d at 981 nn. 8 & 9. It perhaps most famously found expression in the English Bill of Rights of 1689, adopted during the Glorious Revolution that marked the demise of the Stuart monarchy. See Robert J. Reinstein & Harvey A, Silverglate, Legislative Privilege and the Separation of Powers, 86 Harv. L.Rev. 1113, 1129-30 (1973).

I might quibble with the majority’s assertion that “[t]he plain and unequivocal language of the clause ‘confers a privilege on legislators from inquiry into their legislative acts or into the motivation for actual performance of legislative acts that are clearly part of the legislative process.’ Holmes, 475 A.2d at 983.” Rather, I believe, the full breadth of the privilege largely has been shaped by case precedent. As the United States Supreme Court has explained,

“prior cases have plainly not taken a literalistic approach in applying the privilege. The Clause * * * speaks only of ‘Speech or Debate,’ but the Court’s consistent approach has been that to confine the protection of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view. Committee reports, resolutions, and the act of voting are equally covered; ‘[i]n short, * * * things generally done in a session of the House by one of its members in relation to the business before it.’ ” Gravel v. United States, 408 U.S. 606, 617, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (extending the privilege to legislative aides) (quoting Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1881)).

In either case, the privilege is firmly established in this jurisdiction. In Holmes, 475 A.2d at 981, this Court’s first opportunity to interpret and apply the speech in debate clause of the Rhode Island Constitution, the Court explained that it would look to “the interpretation of a similar provision in the United States Constitution.” The Holmes Court then carefully delineated the scope of the speech in debate clause under the Rhode Island Constitution stating:

“The speech in debate clause contained in Rhode Island’s Constitution confers a privilege on legislators from inquiry into their legislative acts or into the motivation for actual performance of legislative acts that are clearly part of the legislative process. * * * Legislators should not be questioned by any other branch of government for their acts in carrying out their legislative duties relating to the legislative process. We go no further at this time than to hold that the speech in debate clause limits judicial inquiry into words or actions that are clearly a part of the legislative process.” Id. at 983.

In the case at bar, as the parties have acknowledged, the actions for which former Senator Irons stands accused fall squarely within the ambit of the speech in debate clause.

Nevertheless, it is an immutable principle of our constitutional government that the people retain the right to amend their constitution. The very first section of the Rhode Island Constitution declares that *1137“ ‘the basis of our political systems is the right of the people to make and alter their constitutions of government.’ ” R.I. Const, art. 1, sec. 1. In 1986, the people of this state exercised this right by substantially altering our constitution, most significantly by the adoption of the ethics amendment, codified as sections 7 and 8 of article 3 of the Rhode Island Constitution. It is my opinion that the ratification of this amendment fundamentally changed the structure of government in order to achieve a framework for more responsible and accountable governance. As the majority properly recognizes, the language of the ethics amendment is indeed plain and unequivocal: “All elected and appointed officials * * * shall be subject to the code of ethics.” R.I. Const, art. 3, sec. 8.

At the same time, however, the people reaffirmed the speech in debate clause. I agree with the majority that the ethics amendment and the speech in debate clause are two conflicting constitutional provisions. If both are accorded their broadest readings, neither can flourish to their fullest extents. Because repeals by implication are disfavored by the law, we make every effort to harmonize statutory and constitutional provisions to avoid implied repeals. In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council), 961 A.2d 930, 935-36 n. 7 (R.I.2008) (CRMC); see also Such v. State, 950 A.2d 1150, 1156 (R.I.2008). Harmonization, however, is not possible in this case; I share the majority’s view that the two provisions “stand in diametrical opposition to each other.” Accordingly, these provisions being irreconcilably repugnant, one provision must necessarily bend to the other. The majority resolves this conundrum by declining “to abridge such a long standing and widely accepted constitutional provision in the absence of an express and uncontroverted manifestation of electoral intent.” By doing so, however, it perforce vitiates the applicability of the ethics amendment to legislators with respect to their performance of legislative activities, contrary to the plain and unambiguous language of the ethics amendment. In essence, the majority chooses to accord greater import to “an ancient and venerable hallmark of our form of government” than to the more newly minted ethics amendment.19

I would take a different approach to this vexing constitutional dilemma by employing the principles of constitutional interpretation this Court has repeatedly applied, over a span of decades, with little or no variation in our methodology. As we explained in Riley v. Rhode Island Department of Environmental Management, 941 A.2d 198, 205 (R.I.2008):

“In construing provisions of the Rhode Island Constitution, our ‘chief purpose is to give effect to the intent of the framers.’ ” In re Advisory Opinion *1138to [the] Governor (Ethics Commission), 612 A.2d 1, 7 (R.I.1992) (citing State ex. rel. Webb v. Cianci, 591 A.2d 1193, 1201 (R.I.1991)); Bailey v. Baronian, 120 R.I. 389, 391, 394 A.2d 1338, 1339 (1978); Opinion of the [Justices] Court to the House of Representatives, 45 R.I. 289, 293, 120 A. 868, 870 (1923). The historical context is important in determining the scope of constitutional limitations because “ ‘a page of history is worth a volume of logic.’ ” In re Advisory Opinion to the Governor, 688 A.2d 288, 291 (R.I.1997) (quoting Kass v. Retirement Board of Employees’ Retirement System, 567 A.2d 358, 360 (R.I.1989) and Justice Oliver Wendell Holmes in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921)). Therefore, this Court properly consults extrinsic sources, including ‘the history of the times and examine[s] the state of affairs as they existed when the constitution was framed and adopted.’ [City of Pawtucket v.] Sundlun, 662 A.2d [40,] 45 [(R.I.1995)] (citing In re Advisory Opinion to the Governor, 612 A.2d at 7).
“We ‘employ the well-established rule of construction that when words in the constitution are free of ambiguity, they must be given their plain, ordinary, and usually accepted meaning.’ Sundlun, 662 A.2d at 45 (citing In re Advisory Opinion to the Governor, 612 A.2d at 7). Moreover, ‘every clause must be given its due force, meaning and effect and that no word or section must be assumed to have been unnecessarily used or needlessly added,’ and we must ‘presume the language was carefully weighed and its terms imply a definite meaning.’ In re Advisory Opinion to the Governor, 612 A.2d at 7 (quoting Kennedy v. Cumberland Engineering Co., 471 A.2d 195, 198 (R.I.1984) and Bailey, 120 R.I. at 391, 394 A.2d at 1339).”

In 1993, five justices of this Court responded to a question propounded by the Governor concerning the authority of the ethics commission to adopt a code of ethics vis-a-vis the plenary legislative power of the General Assembly, which power also had been reaffirmed by the 1986 electorate. See R.I. Const. art. 6, sec. 10 (repealed 2004). I find their advisory opinion, albeit nonbinding, to be very persuasive with respect to the issue presented in this appeal.20 In that ease, the justices noted that “the electorate voted overwhelmingly to approve the ethics amendment” and that the task then before the Court was “to determine precisely the effect of that particular constitutional amendment.” In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 7 (R.I.1992) (hereinafter Ethics Commission). We are confronted with a similar task in this appeal.

The justices began their analysis by stating our well established rule that “[i]n construing constitutional amendments, our chief purpose is to give effect to the intent of the framers.” Ethics Commission, 612 A.2d at 7. They noted that in so doing it is proper to consult extrinsic sources, including the proceedings of the constitutional convention itself. Id. In addition, they cited the long-standing principle expounded by the United States Supreme Court in Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 723, 9 L.Ed. 1233 (1838) that “[i]n the construction of the constitution, we must look to the history of the times, and examine the state of things existing when it was framed and adopted * * *1139See also Bailey v. Baronian, 120 R.I. 389, 391-92, 394 A.2d 1338, 1339 (1978). In Ethics Commission, 612 A.2d at 2, the justices undertook a comprehensive examination of the history of the times and concluded:

“[T]he years preceding this state’s 1986 constitutional convention were marked by scandal and corruption in both state and local government. As a result the overwhelming majority of Rhode Island’s citizens were at the very least distrustful of their elected and appointed officials and of government as a whole. In response to public outcry for reform at all levels of government, an ethics committee was set up as part of the constitutional convention and given the task of examining unethical governmental conduct and proposing measures to bring about ethical reform that would ultimately restore the public trust.”

Observing that the delegates who compose a constitutional convention are agents of the people “‘and as such derive their power and authority solely from the people,’ ” Ethics Commission, 612 A.2d at 7, the Ethics Commission justices reviewed the proceedings of the 1986 constitutional convention to gain “valuable insight into the intent of the framers * * Id. at 9-10. In doing so, they cited the following comments from the transcript of an ethics committee meeting held on May 22, 1986:

“Delegate Gelch: [T]he tragedy of what we have to do here is that we have to leave the implementation of a code of ethics to the thoughts [sic] [fox] guarding the chicken coop because once again, it’s the old statement we all love our legislature, but we don’t — when we look at the whole legislature, we don’t trust the legislature.
“Delegate Philips: I think we should require all of those to follow a detailed code of ethics which we would require the conflict of interest commission or successor agency to draft, promulgate, and implement.
"* * *
“Delegate Lacouture: Maybe some of our concerns can be resolved if instead of relying on the structure to come up with the code of ethics or the prohibition — let this commission do that.
“Delegate Milette: You know, that’s a new idea, and I like it * * *. [W]e would direct that a code of ethics be developed * * * [T]he code of ethics will be developed, and put the responsibility on the Conflict of Interest Commission instead of on the state legislature. Now that takes the fox away from the chickens * * *. What I would like to see is to make sure it just doesn’t die at the table, that it gets passed on to a responsible body which we would spell out to make the code of ethics become a reality. Now if we are all concerned about the state legislature doing it or doing it right, let’s take it away from them. Let’s give it to another body.” Id. at 10:

Based on their review of the convention records, the justices concluded that the primary intent of the framers “was to empower the [ethics] commission with the authority to develop a code of ethics, to investigate violations, and to enforce its provisions, always subject to review by the judicial branch of government consistent with the Constitution.” Id. at 10-11.

The justices then analyzed the history of the times and the state of things as they existed when the constitution was framed and adopted in 1986. Ethics Commission, 612 A.2d at 11. They noted the “scandal and corruption at all levels of government” that preceded the convention, stating “widespread breaches of trust, cronyism, impropriety, and other violations of ethical standards decimated the public’s trust in government.” Id. Based on their analy*1140sis, the justices concluded that “the basic motivating factor in enacting the ethics amendment was to restore the public’s trust in government * * Id. at 11-12.

Noting that “it is permissible to examine election-brochure arguments in construing a constitutional amendment adopted by popular vote,” Ethics Commission, 612 A.2d at 8, the justices also considered the voters’ guide that was sent to each voter household prior to the electorate’s approval of the ethics amendment. The guide detailed fourteen resolutions that were to be presented to the voters, including Question 6, which provided in pertinent part:

“ETHICS IN GOVERNMENT * * * Shall an ethics commission be established with authority to adopt a code of ethics and to discipline or remove public officials and employees found in violation of that code? * * *
“B. Ethics Commission: The general assembly would be directed to establish a non-partisan ethics commission that would enforce a code of ethics for all public officials, state and local, elected and appointed. The commission would have power to investigate charges, impose penalties and to remove officials who are not subject to impeachment * * Id. at 12.

The justices also noted that the ethics resolution as it appeared on the ballot provided in pertinent part:

“(b) The General Assembly shall establish an independent nonpartisan 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. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics.” Id. (emphasis added).

Although the language that was presented to the voters neither adds nor detracts from the plain and unambiguous language of the ethics amendment itself, it at least reinforces the understanding that the intent of the framers was to make the code of ethics applicable to all elected and appointed officials, including members of the General Assembly.

The issue addressed by the justices in Ethics Commission concerned the power conferred by the ethics amendment upon the ethics commission to enact ethics laws vis-a-vis the plenary legislative power of the General Assembly. In 1992, commission opponents averred that the General Assembly was not divested of its power to enact substantive ethics laws, notwithstanding the ethics amendment, because the electorate reaffirmed a constitutional provision continuing the plenary legislative powers of the General Assembly, formerly found in article 6, section 10, of the Rhode Island Constitution.21 Ethics Commis*1141sion, 612 A.2d at 13-14. In answering this question, the justices concluded:

“In addition to reaffirming the plenary legislative power of the General Assembly, the 1986 electorate overwhelmingly approved the ethics amendment that was thereafter made part of the constitution in article 3, sections 7 and 8. We have ruled that the terms of article 3, section 8, expressly confer upon the commission the limited and concurrent power to enact substantive ethics laws. Accordingly, it logically follows that such an affirmative grant of power to the commission necessarily implies a limitation of the same on the part of the General Assembly or any other body. This is not to say, however, that the General Assembly is prohibited from enacting ethics laws altogether; rather, the General Assembly is merely limited to enacting laws that are not inconsistent with, or contradictory to, the code of ethics adopted by the commission.” Id. at 14.

I believe an analogous conclusion is warranted in the case before us now.

In my opinion, it is clear from the analysis undertaken by the five justices of this Court in Ethics Commission that the primary concern of the framers and the electorate in 1986 was the ethical conduct of our public officials. As a result, the people of this state effected a dramatic change in the structure of government by mandating the creation of an independent, nonpartisan ethics commission and by clothing it with the extraordinary power not only to investigate allegations and impose penalties but also to “remove from office officials who are not subject to impeachment.” R.I. Const, art. 3, sec. 8. However, the people also reaffirmed the speech in debate clause, a constitutional provision infused with a rich history signifying the advance of representative government and the decline of absolute monarchism in our Anglo-American tradition.

In Holmes, 475 A.2d at 982, this Court said, “[t]he purpose of the speech in debate clause is to ensure the Legislature freedom in carrying out its duties.” The Court also quoted from Coffin v. Coffin, 4 Mass. 1, 27 (1808):

“These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office, without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered.” Holmes, 475 A.2d at 982.

In 1986, the people of Rhode Island reaffirmed this principle. Yet at the same time they “overwhelmingly” adopted the ethics amendment that on its face applies to legislators. I would resolve this conundrum in a manner similar to that invoked by the five justices in Ethics Commission when they considered the conflict between the ethics amendment and the plenary powers clause and concluded that the ethics amendment impliedly limited the powers of the General Assembly. In light of the very specific intent of the framers to adopt a comprehensive ethics amendment and in view of the history of the times and the state of affairs in 1986, it is my opinion that the express application of the ethics amendment to “[a]ll elected * * * officials” necessarily implies a limitation on the full reach of the speech in debate clause. In other words, I would hold that in matters concerning the ethical conduct of legislators the ethics amendment creates a narrow exception to the immunity historically adhering to legislators in the performance of their legislative activities. Such a con*1142struction of our constitution, I believe, gives greater effect to the intent of the convention delegates and electorate in 1986 than an interpretation that places legislators beyond the reach of the ethics commission for violations of the code of ethics with respect to their performance of legislative activities. It would also preserve the full measure of protections accorded legislators by the speech in debate clause as to questioning from any person or entity except the ethics commission.

For the reasons herein stated, I respectfully dissent from the Court’s opinion.

Acting Chief Justice GOLDBERG did not participate.

. In my opinion, it is not for this Court to decide the best framework for our state government; it is the province of this Court to effectuate the framework of government that the people intended to create. We have previously declared,

“Even to the shock and dismay of constitutional theoreticians, the people may add provisions dealing with ‘non-fundamental’ rights, as well as provisions bearing the most tenuous of relationships to the notion of what constitutes the basic framework of government. * * * In altering their constitution, the question of ‘[h]ow power shall be distributed by a state among its government organs is commonly, if not always, a question for the state itself.' ” In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 15 (R.I.1992) (Ethics Commission) (quoting Omaha National Bank v. Spire, 223 Neb. 209, 389 N.W.2d 269, 275 (1986) and Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 81 L.Ed. 835 (1937)).

. Although a nonbinding opinion, the justices in Ethics Commission were applying precedentially established rules of conslitu-tional construction consistently applied by this Court.

. The plenary power clause of the state constitution provided: "The general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited by this Constitution.” R.I. Const. art. 6, sec. 10 (repealed 2004). After ratification of the 1986 constitution, we construed this provision "to constitute a reaffirmation of the powers historically exercised by the Legislature under the prior constitution.” Kass v. Retirement Board of the Employees’ Retirement System of Rhode Island, 567 A.2d 358, 361 (R.I.1989). This provision has since been repealed as one of the constitutional changes effected by the Separation of Powers Amendments of 2004. See R.I. Const. art. 3, sec. 6; art. 5; art. 6, sec. 10 (repealed); and art. 9, sec. 5; see also In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council), 961 A.2d 930, 933 (R.I.2008).