House of Representatives (Special Prosecutor), In re

• Decision Date: 03 May 1990
• Docket Number: No. 89-486-M,89-486-M
• Citation: 575 A.2d 176
• Parties: In re HOUSE OF REPRESENTATIVES (SPECIAL PROSECUTOR). P.
• Court: Rhode Island Supreme Court

Page 176

575 A.2d 176

In re HOUSE OF REPRESENTATIVES (SPECIAL PROSECUTOR).

No. 89-486-M.P.

Supreme Court of Rhode Island.

May 3, 1990.

Bradford Gorham, House of Representatives, Providence, for plaintiff.

James E. O'Neil, Atty. Gen., Jeffrey Greer, Asst. Atty. Gen., Peter Palombo, Jr., Cranston, B. Mitchell Simpson, Newport, Ralph E. Iannitelli, Lauren Jones, Providence, for defendant.

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 3 of article X of the Rhode Island Constitution, our written opinion on the validity of proposed legislation relating to the appointment of special prosecutors. The members of this court have been asked to determine whether House of Representatives Bill 89-H-7433 Substitute A, which was introduced during the 1989 session of the General Assembly, violates various provisions of the Rhode Island Constitution. ¹

Bill 89-H-7433 Substitute A (hereafter referred to as the proposed legislation), if enacted, would amend title 12 of General Laws 1956 (1981 Reenactment) and would create a procedure for appointment of a "special prosecutor" to investigate and prosecute any crime involving certain public officials. ² First, the Attorney General would be required to conduct a preliminary investigation upon receiving "specific information" that any such official has, or may have, committed a crime other than a petty misdemeanor. Section 12-30-1. ³ In the event that the "specific information" related to the Attorney General or to any assistant attorney general, the superintendent of the State Police, acting under the direction of the Governor, would then conduct the preliminary investigation. Section 12-30-1.

Any preliminary investigation conducted pursuant to the statute is not to exceed ninety days. Section 12-30-2. If the investigator determines that the matter is so unsubstantiated that no further investigation or prosecution is warranted, he or she is required to notify the Chief Justice. Such a conclusion will obviate the need for appointment of a special prosecutor. Section 12-30-2(b).

On the other hand, if the investigator determines that the matter warrants further investigation or prosecution, or if ninety days elapse without a determination, the investigator is required to apply to the Chief Justice for the appointment of a special prosecutor. In cases investigated by the Attorney General, if the Attorney General determines that further investigation or prosecution can be undertaken by the Attorney General's department and so notifies the Chief Justice, then in that event the Chief Justice has no authority to appoint a special prosecutor. Section 12-30-2(c)(2).

The proposed legislation provides that the Chief Justice, upon receipt of an application, shall appoint a special prosecutor from among the members of the Rhode Island bar and shall define the limits of the prosecutor's jurisdiction. Section 12-30-3. Once appointed, a special prosecutor would have "the full power and independent authority to exercise all investigative and prosecutorial functions of the department of the attorney general." Section 12-30-4(a).

Before termination of an appointment the designated prosecutor is required to submit a report to the Chief Justice that fully and completely describes the endeavors undertaken by the special prosecutor. Section 12-30-5(2). The Chief Justice is authorized to release to the General Assembly, the public, or to any individual such portions of the report as the Chief Justice may deem appropriate. Section 12-30-5(3).

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 affirmative and negative responses to the question on behalf of the following amici curiae: the sponsor of the legislation, the Governor, the Attorney General, and the Rhode Island Bar Association.

The fundamental principle we must keep in mind in deciding the question of constitutionality of legislation is that "the question is purely one of legislative power and not at all one of sound policy." Gorham v. Robinson, 57 R.I. 1, 7, 186 A. 832, 837 (1936). "It is a firmly established principle of constitutional law that questions of the wisdom, policy or expediency of a statute are for the legislature alone." Creditors' Service Corp. v. Cummings, 57 R.I. 291, 298-99, 190 A. 2, 8 (1937).

The special-prosecutor legislation is modeled in great part upon the independent counsel provisions of the Ethics in Government Act of 1978, codified as 28 U.S.C.A. §§ 49, 591 through 599 (West Supp.). This statute provides in certain circumstances for the appointment of a panel of Federal judges who are authorized to appoint an independent counsel to investigate and, if necessary, prosecute high-ranking Federal officials. Recently the United States Supreme Court held that the appointment of an independent counsel pursuant to title VI did not violate the doctrine of separation of powers. Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988).

We believe, however, that there is a critical distinction between the Federal legislation considered in Morrison and the proposed legislation now before us. The Federal legislation vests the appointment power in a panel of three judges. The panel is described as the Special Division and is considered a division of the United States Court of Appeals for the District of Columbia. It consists of three justices of the United States Court of Appeals appointed by the Chief Justice of the United States. One of the appointees must be a member of the United States Court of Appeals for the District of Columbia, and none of the appointees may be from the same Court of Appeals. 28 U.S.C.A. § 49 (West Supp.).

The Federal legislation confers the following powers on the Special Division: the power to appoint an independent counsel, the power to define his or her jurisdiction, and the power to terminate his or her office. Although the special division has been given much of the same authority that our Chief Justice is given under the proposed legislation, the special division has no power to review the actions of the independent counsel. In Morrison the Supreme Court concluded that the powers granted by the Federal legislation were "essentially ministerial" and did not authorize the Special Division to "supervise" the independent counsel in the exercise of his or her investigative or prosecutorial authority. 487 U.S. at 681, 108 S.Ct. at 2613, 101 L.Ed.2d at 599.

Furthermore, Congress specifically precluded any member of the Special Division from participating in any judicial proceeding involving an independent counsel who was appointed during that justice's tenure on the Special Division. 28 U.S.C.A. § 49(f); See Morrison, 487 U.S. at 684, 108 S.Ct. at 2615, 101 L.Ed.2d at 601. The Supreme Court reasoned:

"We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the judiciary such as would render the Act invalid under Article III." Id. at 684, 108 S.Ct. at 2615, 101 L.Ed.2d at 601.

The principle of separation of powers is also mandated by Rhode Island's Constitution. Article V provides, "The powers of the government shall be distributed into three departments: the legislative, executive and judicial." Article X, section 1, states, "The judicial power of this state shall be vested in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish." When enacting legislation governing criminal proceedings, "the General Assembly may not overstep the bounds of its authority to 'subvert the power of the judiciary.' " Advisory Opinion to the Governor, 437 A.2d 542, 543 (R.I.1981) (quoting Creditors' Service Corp. v. Cummings, 57 R.I. 291, 300, 190 A. 2, 8 (1937)).

We believe that the restraints present in the Federal legislation at issue in Morrison, which preserve the independence of the judiciary, are lacking in the legislative scheme fashioned by the General Assembly.

There is no provision in 89-H-7433 Substitute A that disqualifies the Chief Justice from reviewing actions of the special prosecutor. This court, the only constitutionally established court in this state, is solely responsible for reviewing felony prosecutions tried in the Superior Court. As a result the Chief Justice will be in a position to rule on any appeals brought by the special prosecutors he has appointed. Although the Chief Justice could recuse himself from participation in appeals involving special prosecutors, the proposed legislation does not require the Chief Justice to do so. This potential for the Chief Justice to serve in dual capacities clearly brings into question the impartiality of the judiciary. We believe the proposed legislation "impermissibly threatens the institutional integrity of the Judicial Branch." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 3257, 92 L.Ed.2d 675, 693 (1986).

We emphasize that the authority vested in the Chief Justice pursuant to the proposed legislation is not restricted to the appointment of a special prosecutor. The Chief Justice's responsibilities would include appointing a special prosecutor and defining the special prosecutor's jurisdiction; receiving and, if the Chief Justice deems it appropriate, releasing to the public a final report from the special prosecutor; removal of the special prosecutor for cause; and termination of the office of the special prosecutor upon completion of the assigned duties.

The proposed legislation not only compromises the independence of the judiciary but also transfers nonjudicial powers to the judicial branch. The proposed l...