dissenting.
I respectfully dissent. In my view, this case is a definitive textbook instance in which the Governor’s question is not properly the subject of an advisory opinion. However, if the Governor’s request were properly before this court, I would answer the question in the affirmative.
Article X, section 3, of the Rhode Island Constitution requires the judges of this court, upon request, to “give their written opinion upon any question of law.” It is settled that this provision is mandatory in nature when the inquiry falls within the purview thereof. We have on numerous occasions, however, stated our reluctance to subvert the principle of the separation of powers by translating the obligation to give advisory opinions upon request into a grant of authority to give such opinions in situations in which the inquiry is not such as reasonably to be within the purview of this constitutional provision. See In re Advisory Opinion to the Governor, 483 A.2d 1078 (R.I.1984); In re Request for Advisory Opinion, 472 A.2d 301 (R.I.1984); Opinion to the Governor, 109 R.I. 289, 284 A.2d 295 (1971); Opinion to the Governor, 96 R.I. 358, 191 A.2d 611 (1963). More specifically, the judges of the Supreme Court are constitutionally obligated to give their advice only when the question propounded raises an issue regarding the constitutionality of existing statutes which require the implementation by the Chief Executive, In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1318-19 (R.I.1986), or when the question propounded has a bearing upon a present constitutional duty awaiting performance by the Governor. Id. at 1319.
Here it is undisputed that the question presented does not concern the constitutionality of an existing statute. The Governor, however, argues that the question presented has a bearing upon his constitutional obligation to “prepare and present to the general *819assembly an annual, consolidated operating and capital improvement state budget.” R.I. Const, art. IX, sec. 15. More specifically, the Governor argues that if the state is required to provide free counsel to indigent misdemeanor defendants, then he must allocate the funds to pay for counsel. The Governor’s argument, however, is unconvincing. The question propounded is simply whether the state has an obligation to provide legal representation to indigent misdemeanor defendants. The question therefore does not bear upon the Governor’s duty to present a balanced budget to the General Assembly, rather it bears upon the constitutional duty to appoint counsel for indigent misdemeanor defendants.
As an executive branch of the government, the Governor plays no role in the appointment of counsel for indigent misdemeanor defendants. The General Assembly, through its legislative powers pursuant to article VI, section 2, of the Rhode Island Constitution, created the Office of the Public Defender and stated that “[i]t shall be the duty of the public defender to represent and act as attorney for indigent defendants in those criminal cases referred to him * * * by the supreme court * * * by the district courts, and as are set forth in § 14-1-51 * * * .” G.L.1956 (1994 Reenactment) § 12-15-3. Given this legislative enactment, the Governor clearly has no constitutional duty regarding the right of indigent misdemeanor defendants to appointed counsel.
Because the question propounded does not bear directly upon any constitutional duty of the Governor and does not concern the constitutionality of an existing statute, it cannot serve as a proper basis for an advisory opinion. We have stated that “giving such [advisory] opinions in matters unconnected to the official function of the requesting coordinate branch would amount to inexcusable gratuitousness.” Opinion to the Governor, 109 R.I. at 292, 284 A.2d at 296. Although I am cognizant of the fact that the Governor is required to present a balanced budget to the General Assembly, it is inappropriate for this court to perform a function that necessarily belongs to the executive branch. Nevertheless, if there is any consensus to be had in regard to the budgetary limitations for the payment of legal services for indigent misdemeanor defendants, it belongs to the legislative and not the executive branch of the government; where the Legislature has the the power to appoint counsel for indigent misdemeanor defendants, it is within the purview of the Legislature’s powers to dictate the funds necessary for the payment of such services. See Roe v. Affleck, 120 R.I. 679, 390 A.2d 361 (1978) (even though this court has recognized the validity of considering budgetary limitations in determining the extent of state-funded benefits for indigents, the budgetary limitations were enacted and imposed by the legislative and not the executive branch of the government).
Even if I were to overlook the procedural deficiencies inherent within the Governor’s request, I find that the State of Rhode Island is required to provide free counsel to indigent misdemeanor defendants notwithstanding a trial justice’s determination that no incarceration will be imposed. At the outset, it should be noted that we have never wavered from giving greater protection to the citizens of this State under the Rhode Island Constitution than that afforded by the United States Constitution. In State v. Bertram, 591 A.2d 14 (R.I.1991), we stated that “there is no question that states may, in applying provisions of their constitutions or state charters, afford their citizens greater protection and security than is provided under the United States Constitution.” Id. at 21. See also Pimental v. Department of Transportation, 561 A.2d 1348, 1350 (R.I.1989) (this greater protection may be given to the citizens of a state under the state constitution even if the federal and state constitutional language is similar). In Ex parte Lee, 123 F.Supp. 439 (D.R.I.1954), the Federal District Court stated that “[t]he right to assistance of counsel and ‘due process of law1 guaranteed by the Fifth and Sixth Amendments to the United States Constitution are not limitations upon the power of the states, but operate upon the national government only, applying only to trials in the federal courts.” Id. at 443.
This state has a proud history of affording its citizens the right to counsel and has specifically declined to follow the United States *820Supreme Court in limiting the provision of counsel to indigents. In 1941, long before Gideon v. Wainwright, 372 U.S. 336, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), Rhode Island established a public counsel system for accused felons. Thirty years later, before the United States Supreme Court decided Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), this court, in State v. Holliday, 109 R.I. 93, 280 A.2d 333 (1971), extended the right to counsel for indigent defendants charged with serious misdemeanors which could subject them to an imposition of penalty in excess of six months’ imprisonment. In 1987, after the Supreme Court decided Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), we stated in State v. Moretti, 521 A.2d 1003 (R.I.1987), and in State v. Medeiros, 535 A.2d 766 (R.I.1987), that the Rhode Island Constitution provides a broader right to counsel than that provided under the Federal Constitution. Medeiros, 535 A.2d at 768; Moretti 521 A.2d at 1010.
Specifically, we found in Moretti that “[t]he confluence of the federal and the state guarantees is if an indigent Rhode Island criminal defendant faces a potential sentence of more than six months, Rhode Island constitutional law guarantees to a defendant appointed counsel, even if the trial justice predetermines that no prison sentence will be imposed. If the potential sentence is less than six months, federal constitutional law guarantees the defendant appointed counsel unless the trial justice predetermines that no prison sentence will be imposed.” Moretti 521 A.2d at 1010. Similarly, in Medeiros, we specifically stated that “the Rhode Island Constitution [requires] the appointment of counsel for an indigent defendant if the potential sentence exceeds six months’ imprisonment even in the event that the trial justice predetermines that no prison sentence will be imposed.” (Emphasis added.) Medeiros, 535 A.2d at 768. These cases make clear that even after Scott, this court held that the Rhode Island Constitution afforded indigent defendants a higher degree of protection; that is, we have recognized the right of indigent persons to appointed counsel notwithstanding that the trial justice determines that no incarceration will be imposed.
As a final matter, it should be stressed that we should not attempt to peer into the minds of trial justices. By answering His Excellency’s request in the negative, the majority’s decision effectively reduces the range of discretion previously afforded to trial justices in misdemeanor cases. The majority would have each trial justice determine whether incarceration may be imposed at the initial stages of an action, regardless of any later developments that may require the trial justice to impose a sanction of imprisonment. It is noteworthy that the District Court judges have represented that such a result would profoundly affect the quality of justice which is administered in the trial courts. Undeniably, by structure, they are positioned at the threshold to the access of justice.
For the reasons stated herein, I would conclude that the question advanced cannot serve as a proper basis for an advisory opinion. Even if I were to address the question presented to this court, I would answer in the affirmative.