Advisory Opinion to House of Representatives, In re, 84-94-A

• Decision Date: 07 December 1984
• Docket Number: No. 84-94-A,84-94-A
• Citation: 485 A.2d 550
• Parties: In re ADVISORY OPINION TO the HOUSE OF REPRESENTATIVES.
• Court: Rhode Island Supreme Court

Page 550

485 A.2d 550

In re ADVISORY OPINION TO the HOUSE OF REPRESENTATIVES.

No. 84-94-A.

Supreme Court of Rhode Island.

Dec. 7, 1984.

Stephen E. Cicilline, James J. Mullen, John F. McDonough, Peter J. McGinn, Douglas A. Giron, Providence, for petitioner.

Stephen A. Lichatin 3rd, Providence, amicus curiae, for R.I. Bar Ass'n.

John A. MacFadyen 3rd, Barbara Hurst, Providence, for respondent.

Dennis J. Roberts II, Atty. Gen., Joseph F. Dugan, Sp. Asst. Atty. Gen., Providence, for amicus curiae.

To the Honorable, the House of Representatives of the State of Rhode Island and Providence Plantations

We have received from Your Honors a resolution requesting, in accordance with the provisions of section 2 of article XII of the amendments to the Constitution of this State, our written opinion on the following question:

Are the provisions of 84 H 7498 of the January session, A.D. 1984, entitled, "An Act Authorizing a Legislative Reimbursement Plan" in violation of Section 1 of Article XI of the amendments to the state constitution?

Section 2 of article XII of the amendments to the Rhode Island Constitution requires the justices of this court to "give their written opinion upon any question of law whenever requested * * * by either house of the general assembly." This court has held in the past that "the judges of the Supreme Court are constitutionally obligated to give their written opinions to either house of the General Assembly when the questions propounded concern the constitutionality of pending legislation * * *." Opinion to the Governor, 109 R.I. 289, 291-92, 284 A.2d 295, 296 (1971). The question before us involves proposed legislation that, if enacted, would become law January 1, 1985. ¹

In determining the constitutionality of legislation, we adhere to principles enunciated many years ago. "The act must stand as valid, unless we are convinced beyond a reasonable doubt, that it is contrary to a provision which is either expressly set forth in the State constitution or must, beyond a reasonable doubt, be necessarily implied from language expressly set forth therein." Gorham v. Robinson, 57 R.I. 1, 10, 186 A. 832, 838 (1936). See also Malinou v. Board of Elections, 108 R.I. 20, 25, 271 A.2d 798, 800 (1970); Chartier Real Estate Co. v. Chafee, 101 R.I. 544, 549, 225 A.2d 766, 769 (1967). It is also well settled that this court will presume legislative enactments of the General Assembly to be constitutional and valid, Gorham v. Robinson, 57 R.I. at 7, 186 A. at 837, and will so construe legislative enactments if such a construction is reasonably possible. Landrigan v. McElroy, R.I., 457 A.2d 1056, 1061 (1983); Jamestown School Committee v. Schmidt, 122 R.I. 185, 191, 405 A.2d 16, 19 (1979). If more than one construction is possible, we shall always adopt the construction that will avoid unconstitutionality. Opinion to the House of Representatives, 99 R.I. 382, 387, 208 A.2d 116, 119 (1965). Finally, the "fact ... that judges may hold views inconsistent with the propriety of the legislation in question, affords no ground for judicial interference, unless the act [itself] is unmistakably and palpably in excess of legislative power." Gorham v. Robinson, 57 R.I. at 8, 186 A. at 837 (quoting Chicago R.R. Co. v. McGuire, 219 U.S. 549, 569, 31 S.Ct. 259, 263, 55 L.Ed. 328, 339 (1911)). Similarly, the court will not invalidate legislation simply because invalid motives may have secured its adoption. "[I]f what the Legislature has done is constitutional, the reasons why it has done so are irrelevant." Holmes v. Farmer, R.I., 475 A.2d 976, 989 (1984) (Kelleher, J., concurring).

With these principles in mind, we now consider the specific legislation and the constitutional provision that is the subject of your request. On receipt of Your Honors' request, we invited the submission of amicus curiae briefs on the question proposed. Briefs were filed in support of both an affirmative and a negative response to the question. We have had the benefit of oral argument by counsel on those briefs. These efforts by the amici have been most helpful to the members of the court in reaching our conclusions. We are very grateful for their service to the court.

The proposed Act, introduced on February 10, 1984, was referred to the House Committee on Finance where it remains under consideration. The legislation would add to title 22 of the general laws chapter 17 and provide for a legislative reimbursement plan (plan). The purpose of the plan as set forth in chapter 17, section 1, is to enable legislators to better serve their constituency and the state. It would provide reimbursement to legislators for certain legislatively related expenses. The expenses incurred in the discharge of their official duties to be reimbursed are as follows:

a) Mileage within the state to and from legislatively related business but not for attendance at sessions of the general assembly;

b) Postage expenses for performing official duties;

c) Parking fees for legislatively related business;

d) Toll fees for attending legislatively related business; and

e) Telephone charges in the discharge of official business.

The proposed statute further provides that payment of the reimbursement will be at the end of each month at a flat rate, one sum fixed for the months during which the Legislature is in session and a lesser sum fixed for the months during which the Legislature is not in session.

Section 1 of article XI provides that legislators

shall severally receive the sum of five dollars, * * * for every day of actual attendance, and eight cents per mile for traveling expenses in going to and returning from the general assembly; provided that no compensation or mileage shall be allowed any senator or representative for more than sixty days attendance in any calendar year.

This section must be read in conjunction with article IV, section 10, of the Constitution, which provides that the General Assembly

shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.

The court has in the past had the opportunity to discuss this very broad declaration of legislative authority contained in section 10 of article IV, and has said that "state legislatures possess plenary power in the legislative area except as the same may be limited by the Constitution of the United States or the constitution of this state." Opinion to the Governor, 101 R.I. 203, 206, 221 A.2d 799, 801 (1966) (citing Payne & Butler v. Providence Gas Co., 31 R.I. 295, 77 A. 145 (1910)). This court, and the courts of many of our sister states, has recognized that unlike the Federal Constitution, which contains grants of enumerated powers, state constitutions set forth limitations upon what is otherwise plenary power in state legislatures. Gelch v. State Board of Elections, R.I., 482 A.2d 1204 (1984). Therefore, the Legislature may exercise any of its powers, subject only to limitations found either expressly or impliedly in the Federal or State Constitution. Nugent v. City of East Providence, 103 R.I. 518, 525-26, 238 A.2d 758, 762 (1968); Payne & Butler v. Providence Gas Co., 31 R.I. 295, 316-17, 77 A. 145, 154 (1910). ²

Our State Constitution sets compensation for legislators at $5 per day for actual attendance at sessions and $0.08 per mile for traveling to and returning from the General Assembly for no more than sixty days' attendance in any calendar year. The proposed legislation does not attempt to alter that constitutional restriction. Rather, the legislation appears to provide for reimbursement of legislative expenses quite distinct from the compensation provided for in the constitution.

A fair reading of the constitutional provision and the proposed legislation leads us to the conclusion that unconstitutionality beyond a reasonable doubt has not been established. The expenses contemplated for reimbursement in the proposed Act are not, in our opinion, contemplated within the connotation of "compensation" as it is used in amendment XI, section 1. An allowance for expenses that a legislator incurs in the performance of his or her official duties is different from compensation or salary. An "expense" is a charge that a legislator incurs in performing services to the state. Geyso v. City of Cudahy, 34 Wis.2d 476, 483, 149 N.W.2d 611, 615 (1967). The purpose underlying an expense allowance or reimbursement is to replace funds expended by the legislator in performing his services to the state. Harlan County v. Blair, 243 Ky. 777, 779, 49 S.W.2d 1028, 1029 (1932). "Compensation" or "salary", on the other hand, is an allowance of money or fees to recompense or to pay an official for the services he has rendered. Id. Therefore, in the absence of a constitutional prohibition, the General Assembly may, by way of legislation, allow for reimbursement to the legislators for expenses actually incurred in the performance of official duties. Since the Rhode Island Constitution does not expressly prohibit the General Assembly from making appropriations for legislative expenses, the proposed plan, in principle, would have to be considered compatible with the State Constitution.

Other states have upheld the constitutionality of statutes creating legislative-expense allowances when the state constitution did not expressly prohibit such payments. ³ In Verry v. Trenbeath, 148 N.W.2d 567 (N.D.1967), the Supreme Court of North Dakota considered legislation very similar to the legislation that gave rise to the question from Your Honors. The North Dakota Constitution provided that a member of the Legislature "shall receive as a compensation for his services for each session, five dollars per day, and ten cents for every mile of necessary travel in going to and returning from the place of the meeting of the legislative assembly, on the most usual route." Id. at 569. The challenged provision of the legislation provided that a legislator shall receive ...