Easton's Point Ass'n v. Coastal Resources Management Council

• Court: Rhode Island Supreme Court
• Writing for the Court: FAY
• Citation: Easton's Point Ass'n v. Coastal Resources Management Council, 522 A.2d 199 (R.I. 1987)
• Decision Date: 10 March 1987
• Docket Number: Nos. 86-201-M,s. 86-201-M
• Parties: EASTON'S POINT ASSOCIATION et al. v. COASTAL RESOURCES MANAGEMENT COUNCIL et al. P. & 86-208-M.P.

Page 199

522 A.2d 199

EASTON'S POINT ASSOCIATION et al. v. COASTAL RESOURCES MANAGEMENT COUNCIL et al.

Nos. 86-201-M.P. & 86-208-M.P.

Supreme Court of Rhode Island.

March 10, 1987.

Stephen Erickson, Middletown, Robert D. Kilmarx, Davis Jenckes Kilmarx & Swan, Inc., Providence, Peter Palombo, Jr., Palombo & Piccirill, Cranston, Gerard M. DeCelles, Abedon Michaelson Stanzler & Biener, Providence, for plaintiffs.

Alan J. Goldman, Goldman & Biafore, Lauren E. Jones, Jones & Aisenberg, Mark S. Mandell, Jay S. Goodman, Mandell Goodman Famiglietti & Schwartz, Ltd., Daniel J. Murray, Joseph DeAngelis, Robert Fine, Licht & Semonoff, Alfred H. Joslin, Jeffrey Schreck, Edwards & Angell, Providence, for defendants.

Arlene Violet, Atty. Gen., David D. Prior, Sp. Asst. Atty. Gen., for amicus curiae.

OPINION

FAY, Chief Justice.

This case is before the court on the consolidated statutory petitions for certiorari brought by the Coastal Resources Management Council (CRMC or the council), Atlantic East Associates, and Elias Lahoud (the latter two parties, the applicants). The council and the applicants seek a review of the judgment of a Superior Court justice reversing the council's earlier decision granting the applicants a permit to construct a large hotel with a parking area and swimming pool in Middletown, Rhode Island.

The facts pertinent to the issue before this court are as follows. The applicants filed their request with CRMC on May 27, 1983. A duly appointed subcommittee of the council held several public hearings on the application at which Easton's Point Association appeared as objectors. These hearings concluded with the subcommittee rendering two opposing recommendations to the council; subcommittee chairman William Miner recommended denial of the application and member Paul Hicks recommended approval subject to modifications in the construction plans. ¹ The entire council then made findings of fact and conclusions of law and granted approval of the application subject to modifications contained in an engineer's report and a biologist's report.

The objectors then appealed the CRMC decision to Superior Court pursuant to G.L.1956 (1984 Reenactment) § 42-35-15, as amended by P.L.1984, ch. 183, § 2 of the Administrative Procedures Act. Before reaching the merits of the case, the Superior Court justice, by a letter dated September 4, 1985, extended to all parties ² an opportunity to file supplemental briefs addressing the following questions:

"1. Whether R.I.G.L. 1956 (1980 Reenactment) § 46-23-2 of the Act creating the Coastal Resources Management Council is unconstitutional as being violative of the separation of powers doctrine to the extent that it provides that some members of the Council must be members of the Rhode Island General Assembly.

"2. Whether § 46-23-2 of the Act is an unconstitutional violation of the separation of powers doctrine in that certain members of the Council can only be appointed by certain officers of the General Assembly."

The trial justice indicated that he did this because of objectors' argument that the council's grant of the construction permit should be reversed because Representative Edward Smith and Senator Leo Gannon were disqualified from participating in the vote of the council.

The parties having submitted supplemental briefs, the justice then rendered his decision. First he determined that the council was an administrative body within the executive branch of state government. Next he held that the Constitution of this state vests the Governor with the exclusive and inherent power to appoint all positions within the executive branch, that the Legislature possesses no power to appoint its own members or anyone else to executive-branch agencies, and that the Legislature may not in any way interfere with the Governor's selection of executive-branch personnel. Consequently, the justice concluded that those parts of G.L.1956 (1980 Reenactment) § 46-23-2, which authorized appointments to the council by someone other than the Governor or which limited his power of appointment (for example, by restricting his/her choices to specified local government officials or requiring the advice and consent of the Senate) were an unconstitutional usurpation of the Governor's executive power.

Applying this constitutional framework to the appeal before him, the justice ruled that the eight members appointed through the auspices of the General Assembly were serving illegally and he declared their appointments void. He thereupon held that the council's eight-to-six vote of approval for the applicants' project was invalid since six of the eight votes for approval were cast by appointees of the Legislature. Since § 46-23-4 requires a quorum of nine members to conduct council business and a nine-member quorum was not present for the vote, the justice reversed the decision of CRMC and remanded it back to the council.

The council and the applicants separately petitioned this court pursuant to § 42-35-16, as amended by P.L.1984, ch. 167, § 4 for issuance of a writ of certiorari to review the trial justice's decision. We issued the writs and granted and consolidated the petitions.

Before this court, CRMC and the applicants argue that the council is not an executive agency but rather an administrative arm of the Legislature performing quasi-judicial and quasi-legislative functions. In addition, they argue that the appointment power has historically been a power reserved to the General Assembly under article IV, § 10 of the R.I. Constitution; therefore, the method of appointment employed here is not unconstitutional and the General Assembly did not usurp any inherent right of the Governor. Finally, they argue that the court below imposed its own views of what constitutes good government in reaching its decision and thus acted in a manner contrary to the principles of proper constitutional analysis.

The objectors contend that the separation-of-powers doctrine is violated by placing the appointment of eight of the seventeen CRMC members in the hands of the legislative leadership or members of the Legislature and that limitations on the power of the Governor to appoint the remaining nine members clearly interferes with the executive authority's inherent power to select its own personnel. ³

A threshold question involves the power of the Superior Court to raise sua sponte the issue of the constitutionality of the composition of the CRMC within the framework of an application for a construction permit.

It is a well-settled principle of administrative law that one who seeks or has acquired rights before an administrative agency may not, in the same proceeding, attack the validity of the statute that has created the agency. See, e.g., Frost v. Corporation Commission of Oklahoma, 278 U.S. 515, 49 S.Ct. 235, 73 L.Ed. 483 (1929); Hurley v. Commission of Fisheries of Virginia, 257 U.S. 223, 42 S.Ct. 83, 66 L.Ed. 206 (1921); General Telephone Co. v. Public Service Commission, 238 Ind. 646, 150 N.E.2d 891 (1958); Samuels v. Couzens, 215 Mich. 328, 183 N.W. 925 (1921); Hart v. Folsom, 70 N.H. 213, ...