Advisory Opinion (Chief Justice), In re, 85-471-M

Decision Date04 April 1986
Docket NumberNo. 85-471-M,85-471-M
Citation507 A.2d 1316
PartiesIn re ADVISORY OPINION (CHIEF JUSTICE). P.
CourtRhode Island Supreme Court

Arlene Violet, Atty. Gen., Shiela Tobie Swan, Sp. Asst. Atty. Gen., Stephen J. Fortunato, McKinnon & Fortunato, for Grand Lodge R.I. Order Sons of Italy.

Richard M. Egbert, for Chief Justice Joseph A. Bevilacqua.

Michael P. DeFanti, Hinckley Allen Tobin & Silverstein, for R.I. Bar Ass'n.

Patricia A. Hurst, D'Amico Connor & Hurst, amicus curiae.

John A. MacFadyen, II, for American Civil Liberties Union.

In re Request for Advisory Opinion to the Governor and the Leaders of the House of Representatives and the Senate.

His Excellency, Edward D. DiPrete, Governor the State of Rhode Island, The Honorable Matthew J. Smith, Speaker of the Rhode Island House of Representatives, and the Honorable John C. Revens, Jr., Majority Leader of the Rhode Island Senate:

We have received your request seeking the advice of the justices of this court in accordance with the provisions of section 2 of article XI of the amendments to the Rhode Island Constitution. The question posited is as follows:

"May a joint resolution such as 85-S16 entitled, "Joint Resolution Vacating the Judgeship of Chief Judge (sic) Joseph A. Bevilacqua," be acted upon if the 1985 General Assembly session is reconvened pursuant to Joint Resolution No. 85-S1064 in light of Section 4 of article X requiring that "such Resolution shall not be entertained at any other than the annual session for the election of public officers * * *?"

Before engaging in a discussion of this question, a review of the matters which occurred prior to your request is in order.

On January 1, 1985 Senator Robert T. Motherway introduced a resolution entitled, "Joint Resolution Vacating the Judgeship of Chief Justice Joseph A. Bevilacqua." The resolution declares the office of Chief Justice Bevilacqua vacant. The Senate referred the resolution to the Senate Committee on Special Legislation.

Following the 1984 general elections in the State of Rhode Island, the newly elected Attorney General wrote to the chairman of the Rhode Island Commission on Judicial Tenure and Discipline requesting an investigation by the Commission into the conduct of Chief Justice Joseph A. Bevilacqua.

The Rhode Island Commission on Judicial Tenure and Discipline investigated and held hearings which resulted, on June 20, 1985, in the following disposition which was agreed to by Chief Justice Bevilacqua:

"1. The Commission and the respondent agreed that Chief Justice Joseph A. Bevilacqua, Sr., has engaged in conduct that violates Canons 4 and 29 of the Canons of Judicial Ethics and that such conduct has brought his judicial office into serious "2. Chief Justice Bevilacqua acknowledges that it is essential for a judge to avoid the appearance of impropriety and to adhere strictly and scrupulously to the Canons of Judicial Ethics.

disrepute. He is hereby PUBLICLY CENSURED for those violations.

"3. After extensive investigation, including a review of the opinions of the Rhode Island Supreme Court during the tenure of Chief Justice Bevilacqua, the Commission has found no evidence, and has no reason to believe, that the conduct referred to in paragraph 1 has in any way affected any of his judicial decisions.

"4. The Commission and the respondent agree that Chief Justice Bevilacqua will abstain from performing the official duties of his office for a period of four (4) months, beginning on July 1, 1985 and ending on October 31, 1985.

"5. Chief Justice Bevilacqua agrees that he will forego all compensation during the four-month period referred to in paragraph 4 and will execute any and all documents necessary to effectuate this intent * * * "

"6. Chief Justice Bevilacqua acknowledges and accepts the authority of the Commission with respect to all proceedings herein and waives any challenge thereto.

"7. On execution of this Order of PUBLIC CENSURE, the proceedings herein are terminated.

"8. This Order is entered by the unanimous vote of the thirteen (13) Commissioners in attendance and with the approval of the Commission's Special Counsel, Arthur J. Goldberg."

Subsequently, on June 21, 1985, the 1985 session of the General Assembly adjourned without the Senate Committee on Special Legislation acting on Resolution 85-S116. The Joint Resolution of Adjournment, No. 85-S1064, provided that each House of the General Assembly may be reconvened by the respective legislative leaders upon three days notice to continue the 1985 session.

On October 11, 1985, this court received the aforementioned request for an advisory opinion. On November 25, 1985, we responded to said request by stating that the question should be answered in the negative. This opinion sets forth the basis for our response, including a discussion of the propriety of the request.

I THE PROPRIETY OF THE REQUEST

Although the petitioners' request involves a matter of the utmost importance, there are some preliminary procedural issues which we desire to put in context before we address the merits of this inquiry. 1

One procedural deficiency arising from this particular request is that the petition was jointly made by the leaders of each House and the Governor. This court will not render an advisory opinion except upon the written request of the Governor or (not and) of either House of the General Assembly. Industrial National Bank of Rhode Island v. Isele, 101 R.I. 734, 737, 227 A.2d 203, 206 (1967). We are constitutionally obligated to give advisory opinions to either House of the General Assembly only when the questions propounded concern the constitutionality of pending legislation, and to the Governor only when the questions propounded concern the constitutionality of existing statutes which require implementation by the Chief Executive. However, neither of those coordinate authorities have standing to propound questions which are clearly the prerogative of the other. Opinion to the House of Representatives, 433 A.2d 944 (R.I.1981). Irrespective of whether the legislative or executive branch is properly before us, the joint nature of the request would be inappropriate for review by this court. Moreover, even if this court were to view these requests to be bifurcated, each request as propounded is improper and procedurally deficient.

Referring specifically to the request by the Speaker and the Senate Majority Leader, the following language from the Reply of The Supreme Court To A Communication From Certain Members of The House of Representatives in The General Assembly, 58 R.I. 51, 54, 191 A. 259, 271 (1937) is instructive:

"We are not unmindful of the generally accepted principle of the law of legislative assemblies that the house means a majority of the house. That principle is also the constitutional law of this state. (art. IV, sec. 6). Generally, no business of any kind can legally be performed by any number less than a majority, except to adjourn or compel the attendance of absent members. In other words, majority rule is firmly imbedded in our fundamental law and governs the house of representatives."

The court in that case declined to render an advisory opinion because the petition only constituted an attempt by some members of the house of representatives to secure the court's advice, and not a formal and collective action by the house as required by article XII, section 2 of the Rhode Island Constitution. Similarly in the case at bar, the request by the petitioners was brought before this court by only the leaders of each house and the governor. No formal action was taken in a collective fashion by either branch of the General Assembly in petitioning the court on this matter. Hence, the request from the House Speaker and the Senate Majority Leader fails to meet the standards enunciated.

As far as the Governor's request is concerned, there are a few principles regarding the rendering of advisory opinions which should be articulated. First, a question or questions propounded to the Supreme Court must have some relationship to the official duties of the coordinate branch propounding the questions. Opinion to the Governor, 109 R.I. 289, 284 A.2d 295 (1971). Second, this court should avoid giving advisory opinions in circumstances not constitutionally mandated; thus, giving such opinions in matters unconnected with the official function of the requesting coordinate branch would be gratuitous. Id. Third, we only advise the chief executive in those instances in which the questions propounded have a bearing upon a present constitutional duty awaiting performance by the Governor. In re Request for Advisory Opinion, 472 A.2d 301, 302 (R.I.1984). In light of these legal precepts and a review of the request before us, it is clearly evident that the Governor has no present constitutional duty awaiting performance in these circumstances. Furthermore, since according to article X, section 4 of the Rhode Island Constitution, the Governor plays no role in the removal of a supreme court justice, his request does not comport with the law.

In spite of the procedural deficiencies inherent within the petition before us, and in view of the fact that either branch of the Legislature could independently, by majority vote, propound the same question to this court, we shall exercise our discretion and waive the defects so that we can address the profoundly important substantive issues raised by the petitioners' request. We must reiterate that we shall not consider this action as a precedent indicating that in the future we shall render an advisory opinion when the requesting petition is improperly before this court or procedurally defective. Our decision, however, to go forward with a judicial review of this matter is solely attributable to the constitutional and public importance of the question propounded to this court.

II

WHETHER THE GENERAL ASSEMBLY HAS THE...

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