*1 trary decision subject would the state to
potential liability for each and action
it undertook. insight Even minimal reveals
that this would lead to hesitation on the
part of the state to perform undertake and necessary
duties functioning society.
free plaintiffs allege have failed to give
facts that special rise to duty
owed to them the Rhode Island Parole
Board. We thus affirm dismissal of their
complaint. plaintiffs’ appeal is denied and dis-
missed, judgment Superior and the
Court is affirmed.
In re ADVISORY OPINION TO the
HOUSE OF REPRESENTATIVES.
No. 84-94-A.
Supreme Court of Rhode Island.
Dec. 1984. *2 Mullen, Cicilline,
Stephen E. James J. McGinn, McDonough, F. Peter J. John Giron, Providence, petition- Douglas A. er. Providence, 3rd, ami-
Stephen A. Lichatin curiae, Bar cus for R.I. Ass’n. Hurst, MacFadyen 3rd, Barbara John A. Providence, respondent. Gen., II, Joseph Atty.
Dennis J. Roberts Providence, Atty. Gen., Dugan, Sp. Asst. F. for amicus curiae. Honorable, Represent- the House
To
Island and
the State of Rhode
atives of
Plantations
Providence
Honors a
received from Your
We have
requesting,
accordance
resolution
XII of
provisions of section 2 of article
of this
the amendments
Constitution
following
State,
opinion on the
our written
question:
provisions
Are the
of H84
7498 of the
actments if such a construction is reason
session,
January
1984, entitled,
A.D.
“An
ably possible. Landrigan McElroy,
Authorizing
Act
Legislative
Reim-
457 A.2d
Jamestown
bursement Plan” in violation of Section 1
Schmidt,
School Committee v.
122 R.I.
of Article XI of the amendments to
405 A.2d
If more
state constitution?
than one
possible,
construction is
we shall
*3
always adopt
the
construction
will
Section 2 of article XII of
the
uneonstitutionality. Opinion
to the
avoid
amendments to the Rhode Island Constitu
Representatives,
House
382, 387,
99 R.I.
requires
tion
justices
the
this court to
116, 119 (1965). Finally,
208 A.2d
the “fact
“give their
opinion upon any
written
ques
* * *
judges may
...
hold views inconsist
tion of
requested
law whenever
ent with the propriety
legislation
of the
general
either house of
assembly.”
question,
ground
judicial
affords no
This court
past
has held in the
that “the
interference, unless the act
is un
[itself]
judges
Court are constitu
mistakably
palpably
legis
excess of
tionally obligated
give
opin
their written
Robinson,
power.”
Gorham v.
lative
57
ions to either house of the General Assem
8,
(quoting Chicago
R.I. at
186 A.
at 837
bly
questions propounded
when the
concern
McGuire,
R.R. Co. v.
549, 569,
219 U.S.
31
constitutionality
pending legislation
259, 263,
328,
(1911)).
S.Ct.
55 L.Ed.
339
Governor,
to the
*.”
109
Similarly,
legis-
the court will not invalidate
295,
R.I.
(1971).
284 A.2d
simply
lation
may
invalid
because
motives
question
The
proposed
before us involves
adoption.
have secured its
what the
“[I]f
legislation that,
enacted,
if
would become
Legislature
constitutional,
has done is
1,
January
law
1985.1
why
reasons
it has done so are irrelevant.”
In determining the constitutionali
Farmer, Holmes v.
976,
475 A.2d
ty
legislation,
principles
we adhere to
(1984) (Kelleher, J., concurring).
many years ago.
enunciated
“The act
mind,
principles
With these
we now
valid,
must stand as
unless
are
we
con
specific legislation
consider the
and the
beyond
doubt,
vinced
a reasonable
that it is
provision
subject
constitutional
that is the
contrary
provision
to a
which is either ex
your request.
receipt
On
of Your Hon-
pressly set forth in the State constitution
request,
ors’
we invited
submission
must, beyond
doubt,
a reasonable
be
question
amicus
pro-
curiae briefs on the
necessarily implied
language express
from
posed.
in support
Briefs were filed
of both
ly set forth therein.” Gorham v. Robin
negative response
an affirmative and a
son,
1, 10,
832,
57 R.I.
186 A.
question.
We have had the benefit of
Elections,
See also Malinou v. Board of
argument
oral
by counsel on those briefs.
20, 25,
798,
R.I.
271 A.2d
These efforts
the amici have been most
Chafee,
Chartier Real Estate Co. v.
helpful
to the
of the court
members
544, 549,
225 A.2d
reaching
very
our conclusions. We are
pre
is also well settled that this court will
grateful
their service
court.
legislative
sume
enactments of the General
valid,
Act,
Assembly
constitutional and
The
introduced on Febru-
Robinson,
Gorham v.
ary
as forth in is to continue exercise the set section shall exercised, heretofore unless they con- enable to better serve their have in this constitution. stituency prohibited and the state. It would legislators for certain past in the had the court has expenses. The ex- very broad dec to discuss this opportunity penses discharge in the their incurred legislative authority contained laration of duties as fol- official to be reimbursed are IV, article and has said that in section 10 of lows: legislatures possess plenary power “state except the same area a) Mileage state within *4 may limited the Constitution legislatively related business but of States or the constitution United gen- for attendance at sessions of the Governor, 101 R.I. state.” assembly; eral 206, 799, (1966) 203, (citing 801 221 A.2d b) Postage offi- expenses performing for Co., v. 31 Payne & Butler Providence Gas duties; cial court, 295, (1910)). A. 145 This and R.I. 77 c) Parking for related fees states, many courts of our sister has of business; recognized Federal Consti that unlike the d) attending legislatively tution, grants Toll fees for contains of enumerat business; forth powers, state constitutions set and ed plenary upon what is otherwise limitations e) Telephone charges discharge of legislatures. in v. State power state Gelch official business. Elections, A.2d 1204 482 Board of provides that proposed The statute further Therefore, may Legislature ex payment of the reimbursement will be at only any powers, subject of its ercise rate, of flat one the end each month at a expressly or im limitations found either during sum fixed for the which the months in Federal or State Constitution. pliedly the Legislature sum is in session and lesser Providence, 103 City East Nugent v. of Leg- during fixed for the months which the 758, (1968); 518, 525-26, A.2d 762 R.I. 238 islature is not in session. Co., 31 v. Gas Payne & Butler Providence legis- 145, (1910).2 1 XI provides of article that Section A. 154 77 lators compensation sets State Constitution Our severally five shall receive the sum of day at for actual for * * * dollars, day for every of actual per mile sessions and $0.08 attendance attendance, eight per mile for returning and cents from the traveling to for and
traveling re- expenses going sixty in no more than year. turning general assembly; pro- any calendar days’ from the attendance legislation attempt mileage does not compensation or no vided restriction. any repre- alter that constitutional allowed senator or shall be Rather, appears legislation sixty days at- for more than sentative expenses year. any calendar tendance 189, (1972); 196 deGraffenried, Misc.2d 328 N.Y.S.2d v. So.2d 2. also Van Hart 388 See 567, (N.D. Mears, Trenbeath, 1196, (Ala.1980); Verry 256 Ark. 571 1198 Jones v. v. 148 N.W.2d 827-28, 857, Yankton, 825, (1974); Way 1967); v. S.W.2d 859 510 v. Board McDonald School Diego County, 606, 93, (1976); 74 Cal. Superior 599, San Court 97 S.D. N.W.2d Cal.Rptr. App.3d Wyoming Witzenburger Commu v. State ex rel. Rogers, v. 538 S.W.2d Americans United Auth., (Wyo.1978). nity Dev. 575 P.2d York, 1976); (Mo. Montgomery New v. quite distinct compensation pro- from the legislation of North Dakota considered vided the constitution. very gave similar to the question rise to the from Your Honors. A reading fair of the constitu provided The North Dakota Constitution provision tional proposed legisla Legislature that a member “shall tion leads us to the conclusion that uncon compensation receive as a for his services stitutionality beyond a reasonable doubt session, per day, for each five dollars has not been established. The necessary ten cents for mile of travel contemplated for pro reimbursement in the posed not, going returning place Act to and from the opinion, are in our contem plated within meeting legislative assembly, the connotation “compen sation” is used in amendment the most usual route.” at 569. The Id. section 1. An allowance for challenged provision legislation pro legislator performance incurs in the legislator “thirty- vided that a shall receive * * * his or her official duties is different from five dollars each month for un compensation salary. or An “expense” is a compensated expenses incurred in the exe * * * charge legislator perform that a incurs cution of his duties while the ing services to the state. Geyso City legislative assembly is not in session.” Id.4 Cudahy, 34 Wis.2d 149 N.W.2d Applying principle Legislature purpose underlying may any expressly im enact law not expense allowance or reimbursement is pliedly constitution, forbidden replace expended by legislator funds *5 Supreme Dakota held that Court North performing his services to the state. legislative-reimbursement plan the was Blair, County Ky. Harlan v. constitutional. The court stated that “the “Compensa S.W.2d legislature, being not forbidden [the “salary”, hand, tion” or on the other is an Constitution, possesses inherently State] money allowance of or recompense fees to money power provide expense the for pay or to an official for the services he has performance the of such duties as Therefore, rendered. Id. in the absence of * * legislator performs the individual *.” prohibition, a constitutional As General Id. at 574. sembly may, by way legislation, allow legislators for reimbursement for Similarly, Mears, in Jones v. 256 Ark. expenses actually per incurred in the (1974), Supreme S.W.2d 857 formance of official duties. Since the Court of Arkansas legislative- held that a Rhode Island Constitution does not ex pressly prohibit plan reimbursement was constitutional making appropriations from for incompatibility absence of a clear expenses, proposed plan, principle, the State or Federal Constitutions and rec- compatible would have to be considered ognized presumptive constitutionality with the State Constitution. any legislative act. In Jones the court Constitution, stressed that the Arkansas upheld Other the constitu- states have amended, express then did contain an tionality creating legislative-ex- of statutes prohibition against or other pense allowances when the state constitu- beyond allowance that set the constitu- expressly prohibit pay- tion did not such express tion. Without such an Trenbeath, constitu- In Verry ments.3 prohibition, legislative-reimburse- tional (N.D.1967), N.W.2d 567 Court deGraffenried, provisions Van Hart v. 388 So.2d Other which enti- 4. 3. (Ala.1980); Meats, legislators expense Jones v. 256 Ark. 1199-1200 tled the to substantial mon- 510 S.W.2d 859-60 eys challenged. expressly were not The court Washington, Hoppe v. 78 Wash.2d challenged provision. limited its decision to the P.2d ment plan negative was valid. re supporters Id. The S.W.2d at 859.5 sponse argue that because the State also for provided day Constitution has At argument oral and in their memoran- per mile for trav $0.08 attendance da, arguing negative response amici going returning eling expenses in consequences raised the income-tax to indi- Assembly, the Legisla from the General legislators lump paid vidual if sums are precluded providing ture is for reim plan any under accounting without or legislatively expense. related ex They argue verification of the bursement of regulations, tax penses. principle they under federal such on which base funds would be treated as income taxable argument originates this in the maxim “Ex- legislator. to the individual Such factors pressio Est Exclusio Alterius” —that Unius are not of this a concern court. Further- is, thing expression of one is the exclu more, consideration, apart from tax They argue sion of that it another. against those argued constitutionality who make no the framers of the sense for con point aspects that some out singled stitution out travel re to have plan, payments lump such as sums with- thereby striction not have intended expense out any verification of incurred legislatively rule out all other related ex any legislative findings and without argument penses. We believe must extent expenses amount of these or are fail for reasons. We not con several reimbursed, proof the plan are is real- vinced that the maxim is relevant in situa ly compensation one for increased rather interpreting tions which we are our State than for reimbursement of re- said, it Constitution. As we have is well however, expenses. legislation, lated Legislature possesses settled that the State provides legislator “shall be reim- area, plenary power limit bursed for official This only by Federal ed the State and Constitu language demonstrates the clear intent to Legislature may any tions. The exercise Amici reimburse incurred. powers subject only to its limitations found supporting negative response assume necessary expressly implica either accept moneys will for ex- *6 Nugent City in the tion constitutions. v. penses assump- never incurred. Such an Providence, R.I. East 103 of tion in the face of a flies time-honored 758, (1968). Opinion A.2d In 238 762 presumption, adopted by this court 70, Governor, 56, 433, R.I. 178 A. the 55 Governor, 95 to the “ (1935), 440 court said that ‘the maxim (1962), 118 that A.2d * * * applicable is deeds more and con presumed and officials are constitution, requires tracts than a and legally good act faith and in the dis- great application, in its in all caution charge duties. of their Those concerns opinion, cases.’ ”. In same this court the however, apparent arise from the incon- do quoted approval language the also with language the sistency in the Act—“reim- justice Judge Bradley, former chief a on the one hand and “flat bursement” Court, publi Rhode Island his Therefore, rate” on the other. payment Changing cation entitled “The Methods some of a resolution of this consideration States, especially the Constitution of the inconsistency before enactment would be (1885), with that of Rhode Island” refer by accomplished This could be warranted. people, ence to maxim: in such legislative hearings and declarations and “[T]he proceedings, say they They mean. Legislature by what do findings fact power accounting negation an not leave of one provision plan a expenses claimed reimbursement. another.” Id. grant inferred from the Gordon, Berry 5. See also Ark. Jones because the Arkansas Constitution at that Ferguson, but see S.W.2d 279 Ashton v. express prohibition time contained an against (1924) (where S.W. 624 Ark. allowances). court similar invalidated as that in recently, More we Constitution, have held that virtually in con to the Rhode Island struing statute, a the maxim “is merely an ensures that economic sacrifices must be aid to construction dispositive and is not by legislators made in order to fulfill their legislative intent *.” Volpe v. Still obligations people. as servants of Co., man White Moreover, A.2d undoubtedly acts as a barrier follows, then, It the maxim to those who would and could render this application have even less when the important public economi- service but are construction of a state constitution is at precluded doing. my cally from so is issue and constitutionality pre is to be personal opinion that the constitutional re- sumed unless contrary proven is be legislative compensation striction yond a conclude, reasonable doubt. We goal contrary reimbursement is of a therefore, provision in our State government representative, ef- state that is per Constitution for mile $0.08 for travel ficient, However, and effective. this court expenses to and from the Assem upon judicial has been called to render bly sessions preclude does not any reim legisla- opinion respect proposed to a bursement expenses for other leg that are contrary perceive tive Act which I to be islatively related. express provision an of the Rhode Island For this reason I must re- Constitution. We are opinion, therefore, majority opin- spectfully dissent from the that the underlying concept of 84 H 7489 of ion. the January session, A.D. an Act constitutionality determining In authorizing legislative Act, question purely is one plan, is not in violation of section 1 of legislative power and not one of sound article XI of the amendments to the State Robinson, Gorham v. policy. 57 R.I. However, Constitution. we are unable to In the area of 186 A. determine whether specific sums set remuneration, As- forth in the Act are factually consistent sembly’s power is limited article plan with a of reimbursement. finding to the Consti- section 1 of the amendments of fact in that regard is not a function that Island, tution of the State of Rhode is within competence. our That must be provides, part, performed, instance, in this by the Honora representatives shall senators [t]he ble House Representatives unless Your severally the sum of five dollars receive Honors decide to amend the legis * * * attendance, day of actual lation providing for accounting traveling eight cents mile for to be reim returning from going to and bursed. assembly; provided that no *7 Respectfully submitted mileage allowed compensation or shall be BEVILACQUA, A. C.J. JOSEPH any representative for more senator or KELLEHER, J. THOMAS F. any calen- sixty days attendance than WEISBERGER, J. R. JOSEPH year. dar SHEA, F. J. DONALD upon The Act are called to consider we Justice, MURRAY, dissenting. attempts to reconcile itself with the above provision by the use of semantics. that those citi- little doubt There can be “[mjembers as- states that of their services to choose to offer zens who sembly shall be reimbursed official of as members of Rhode Island the State * expenses at the end of each month by a Assembly are rewarded necessity providing of evidence without expense-reimbursement compensation and added.) (Emphasis expenses.” of such inadequate. The woefully package that is specify of goes The Act on to a “flat rate” set forth scheme legislative remuneration per of month XI, $175 the amendments section of article January through amendment, through leg- May per and not $100 month constitutional through Thus, from June December. ev- islation. ery member of the General ambigu- XI It is that article is conceded $1,575 per year, be “shall reimbursed” or point the contem- ous on the above and that
$3,150 per two-year term.6 that amend- poraneous given construction point by ment is no means clear. One is majority opinion prem- stands on two clear, exception, every however. With one ises, persuasive. neither I find re- legislative effort to ever made increase premise The first is that article XI address- by soundly has been defeated muneration only compensation mileage es and 1900, compen- people of this state. In from meetings to and As- per day. sation increased from to$1 $5 was sembly, thus and the Act does not intrude persuade skep- effort a Since then to constitutionally regulated into area. A populace legislative tical to com- increase reading opinion majority fair indi- pensation failed. re- has Voters have types that these cates two of renumeration peatedly rejected proposals.7 such Where except by may never be altered constitu- ambiguous constitutional clause has amendment, all other types tional but Depart- by been the Executive construed are subject remuneration to ad- Legislature, ment where such and the and I justment. do not believe framers long- has been uniform and construction such a possessed adopting narrow view standing, acquiesced and in by the people, article XI. That article of amendment was meaning may by be determined compensation intended to a total long-standing construction. to package, not to limit remuneration for com- Governor, 85 A. pensation mileage and to and from meet- There can doubt be little that ings to leave open every type but other Act, legislative until remunera- present reimbursement. The Journal the Con- tion the sole has been determined be vention, (1859) p. 38 candidly states that province people, people have mileage given was them “[a] [the members] spoken. expenses.” pay their I think is clear mileage populace spoken that allowance of article XI Whether the has irra- tionally meant to in general. people was cover of no concern. The have is I package together The entire taken in- chosen to alter article and am not was promote attempt public persuaded tended to this court service offset- should ting expenses paying already per a small what has been construe otherwise any attempt It follows thoroughly diem. to alter debated and defeated package accomplishedthrough any proposal I must be electorate. believe that year); Report 6. Under article XI of the amendments to the calendar Commission on Constitution, Constitution, compensation p. Rhode Island can Rhode Island Revision per year (1962) or (recommending provi $600 reach maximum of any two-year that constitutional mileage allowances). (plus term salary sion members’ be deleted compensation legislation); left to The Pro conventions, as well as 7. State constitutional ceedings the Rhode Constitutional Con Island forums, consistently have dealt 113-151, (1973) pp. (adopt vention of legislative compensation. issue of with the ing compensation by proposal fix adopted compensation schemes approval majority subject of voters at law varied, but one constant has remained—all have *8 setting interim remunera election rejected by proposals have been such $2,000 mile); per year per $0.15 tion at See, Proceedings e.g., the Limited electorate. Study Report the Public Commission Convention, (1951) pp. 64-70 Constitutional Relating Compen Amendment Constitutional (adopting amend constitution to resolution to Assembly, p. (April sation per day compensate members at rate 1980) (recommending attendance); abolishment of article XI sixty days' Proceedings up of 44-52 Convention, permanent Legislative pp. Com Constitutional creation Limited (1955) Commission). (adopting pensation to amend resolution constitu- Review $1,500 salary compensate at tion to members possible legislators, of individual amend the remuneration scheme set forth actions per- I in article XI should taken to the citizens from the Act itself. am not be but concept pay- of this state for a decision. that the of “flat rate” suaded ment, of ac- purportedly reimbursement opinion I that article Even were guidelines expenses, and no as to tual with section 1 allows for reim- calculated, expenses should be is how such mileage than bursement for legisla- strongly 1 feel constitutional. Assembly, and from the I am to. compensation, I tors deserve enhanced but pre- persuaded majority’s not second accomplished must believe this end be mise, namely, moneys which shall be may be amendment and Constitutional reimbursement, paid a “flat rate” and legislation. accomplished by necessity accounting, are without the of an Indeed, in fact there is no reimbursement. prescribes that either
directive Act moneys paid in direct relation to be payment of mon- prohibits
eys expenses. simply It the absence
provides payment a flat-rate each $1,575
month. I am not convinced every year paid to members which shall be Concetta V. TARRO the Act labels it is reimbursement because view, is, compensation, a my such. by a choice
reality which cannot be altered Robert D. TARRO. of words. 81-636-Appeal. No. appears infirmity of the Act evident of Rhode Island. Court only to me not its failure accounting legislative expenses, but 20, 1984. Dec. particularity in also in its overall lack of instance, regard expenditures. For to such 22-17-2(a) proposed Act al-
section “mileage within
lows reimbursement the state to and specificity as There is no
business is to be calcu-
to how such reimbursement Presumably, could
lated. speci- mile at the $0.08
be determined also It could be
fied in the Constitution. gaso- by determining the cost
calculated particular
line, per gallon the miles which travel, and the number
automobile will costs could be Insurance
miles traveled. costs, in, or even or maintenance
factored The Act is the automobile.
depreciation of are of such matters
silent on these because in its “reimbursement”
little relevance little,
scheme, anything, if to do has expenses. actual correctly points out that majority to act always presumed
legislators will The infirmities good faith.
legally and however, Act, not from the stem
of this