At the request of the Honorable House of Representatives of the State of Rhode Island and Providence Plantations, four of the justices of the Supreme Court rendered an advisory opinion on pending legislation concerning the reenactment of the organic statute of the Coastal Resources Management Council (CRMC). The pending legislation would allow sitting legislators to serve on the CRMC, as well as allow members of the General Assembly to appoint other public members to the CRMC. The request made by the House of Representatives asked:
“(1) Would the proposed act, if duly enacted into law, which permits members of the General Assembly to sit as members of the Coastal Resources Management Council (CRMC) as set forth in R.I.G.L. 46-23-2(a)(1), violate the constitutional amendment to Article IX, Section 5, so called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority?
“(2) Would the proposed act, if duly enacted into law, permit the Speaker of the House to appoint public members to the Coastal Resources Management Council (CRMC) as set forth in R.I.G.L. 46-23-2(a)(1)?
“(3) Is the Constitutional Amendment to Article ix, section 5, so-called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority, self executing or does it require legislative enactment for its implementation?
“(4) Is the Coastal Resources Management Council (CRMC) by its nature, purpose, and operation a legislative function * * *[?]”
The four justices answered question (1) and the first clause of question (3) in the affirmative and questions (2) and (4) in the negative. The four justices noted that the so-called separation of powers amendments adopted by the Rhode Island electorate in 2004 constituted an important recalibration of the system of checks and balances within Rhode Island state government. The justices opined that two of the separation of powers amendments, article 3, section 6 and article 9, section 5 of the Rhode
Island Constitution, are both self-executing. As a result, the power to appoint members of administrative bodies exercising executive power is now vested in the Governor subject to the advice and consent of the Senate.
Furthermore, sitting legislators are barred from serving on administrative bodies that exercise executive power under the plain language of article 3, section 6. Finally, the four justices concluded that the CRMC exercises executive power in addition to quasi-legislative and quasi-judicial power.
In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council) No. 07-370 (December 18, 2008)
The opinion can be accessed at: http://www.clf.org/uploadedFiles/SOP%20decision%20CRMC%2012-18-08.pdf
Read what the Conservation Law Foundation had to say about this opinion: http://www.clf.org/general/internal.asp?id=1146
