Kass v. Retirement Bd. of Employees' Retirement System of the State of R.I.

• Decision Date: 14 December 1989
• Docket Number: No. 88-348-A,88-348-A
• Parties: Stephen KASS v. RETIREMENT BOARD OF THE EMPLOYEES' RETIREMENT SYSTEM OF the STATE OF RHODE ISLAND et al.
• Court: Rhode Island Supreme Court

Page 358

567 A.2d 358

Stephen KASS v. RETIREMENT BOARD OF THE EMPLOYEES' RETIREMENT SYSTEM OF the STATE OF RHODE ISLAND et al.

No. 88-348-A.

Supreme Court of Rhode Island.

Dec. 14, 1989.

George M. Vetter, Vetter & White, Inc., Providence, for plaintiff.

Angelica B. Gosz, John F. Dolan, Rice, Dolan & Kershaw, Providence, for defendants.

OPINION

WEISBERGER, Justice.

This case is before us on the plaintiff's appeal from summary judgment entered in favor of the defendants by a justice of the Superior Court. The trial justice found that members of the General Assembly may participate in the state retirement system, notwithstanding any other allowances for legislative stipends and travel expenses contained in article VI, section 3 of the 1986 Rhode Island Constitution. We affirm. The facts insofar as pertinent to this appeal are as follows.

In 1936 the General Assembly enacted legislation establishing the Employees' Retirement System for the State of Rhode Island (the retirement system). P.L.1936, ch. 2334, now codified as G.L.1956 (1984 Reenactment) §§ 36-8-1, 36-8-2. This enabling legislation called for the creation of the Retirement Board of the Employees' Retirement System of the State of Rhode Island (the retirement board) to administer and manage the state retirement system. P.L.1936, ch. 2334, now codified as G.L.1956 (1984 Reenactment) §§ 36-8-3, 36-8-4. Under the original provisions of the 1936 legislation, the members of the General Assembly and certain other state officers and employees were expressly excluded from participation in the retirement system. P.L.1936, ch. 2334, § 14 (also excluding general officers of the state, members of the judiciary, and public school teachers).

By 1947 the legislation was modified and the restriction barring members of the General Assembly from participating in the state retirement system was removed. P.L.1947, ch.1971, § 5, now codified as G.L.1956 (1984 Reenactment) § 36-10-9.1 (also allowing general officers of the state to participate); see also P.L.1951, ch. 2830 (allowing public school teachers to participate) and G.L.1956 (1985 Reenactment) §§ 8-3-7 through 8-3-17 (establishing a separate retirement system for members of the judiciary). Under the statutory provisions beginning in 1947, qualifying members of the General Assembly have been eligible to participate in the retirement system, although numerous changes in the eligibility requirements and the measure of benefits have since been enacted. See P.L.1960, ch. 20; P.L.1964, ch. 240; P.L.1968, ch. 152; P.L.1973, ch. 42; P.L.1987, ch. 370. At present a participating retired legislator upon reaching fifty-five years of age and having served a minimum period of eight years of aggregate service (which may include up to four years of military service) will be entitled to receive an annual pension of $600 for each year of total service. Section 36-10-9.1. The maximum benefit payable is $12,000 for twenty years of service in the General Assembly. Section 36-10-10.1.

During periods of active service in the General Assembly, state legislators receive a five dollar daily stipend and eight cents per mile for traveling expenses as provided in art. VI, sec. 3, of the 1986 Rhode Island Constitution. This section parallels article IV, section 11, of the first Rhode Island Constitution of 1843, but the original provision allowed for a daily stipend of only one dollar. In 1900 the Rhode Island electorate approved the existing daily stipend for its state legislators. By an amendment to the State Constitution, the daily stipend was increased from one dollar to five dollars, with the proviso that compensation would only be allowed for a maximum of sixty days actual attendance. Article XI, section 1 of Amendments to Rhode Island Constitution of 1843. In spite of numerous attempts to increase their daily stipend, each legislator who attends the General Assembly for a maximum of sixty days presently still receives a total annual salary of only $300, plus travel expenses of eight cents per mile for going to and from the General Assembly.

On November 13, 1987, plaintiff Stephen Kass filed this suit for declaratory relief in Superior Court against the Retirement Board of the Employees' Retirement System of the State of Rhode Island and Roger Begin in his official capacity as General Treasurer for the State of Rhode Island and as chairman of the retirement board (since replaced by the present General Treasurer Anthony Solomon). In his complaint, plaintiff, a citizen and taxpayer of the State of Rhode Island, ¹ contends that G.L.1956 (1984 Reenactment) §§ 36-8-1(2), 36-10-1, 36-10-2, 36-10-7, 36-10-9.1, and 36-10-10.1 are unconstitutional insofar as these provisions allow state legislators to receive pension benefits beyond the daily stipend specified in art. VI, sec. 3 of the Rhode Island Constitution. The plaintiff alleges that art. VI, sec. 3 sets forth all the compensation available to legislators in the form of daily stipends and travel expenses, and that the challenged pension benefits are therefore impermissible compensation under our constitution. He argues that the General Assembly has circumvented the provisions of art. VI, sec. 3 of our constitution by granting themselves additional monies in the form of retirement benefits. Accordingly, plaintiff further sought injunctive relief to prohibit defendants General Treasurer and the retirement board from continuing to distribute pension funds to qualifying retired members of the General Assembly.

On February 10, 1987, several active and retired state legislators were allowed to intervene as defendants. The defendant-intervenors moved for summary judgment on February 17, 1987, and defendants General Treasurer and the retirement board joined in the motion. The plaintiff objected to the motion and filed a cross-motion for summary judgment on January 11, 1988. After hearing oral argument, the trial justice found that no genuine issue of material fact existed, and that legislative pension benefits were not prohibited by art. VI, sec. 3 of our constitution. The trial justice issued a written decision on July 15, 1988, granting defendants' motion for summary judgment and denying plaintiff's motion. The plaintiff appeals from judgment entered for all defendants.

This court is asked to consider whether the statutory provisions that permit qualifying retired state legislators to participate in the state retirement system are unconstitutional under art. VI, sec. 3 of the 1986 Rhode Island Constitution. In order to prevail in his challenge to the constitutionality of these statutes, plaintiff Kass must demonstrate beyond a reasonable doubt that there exists a provision in our constitution that either expressly or by necessary implication prohibits the allowance of legislative pensions. See Gorham v. Robinson, 57 R.I. 1, 10, 186 A. 832, 838 (1936). Moreover, In re Advisory Opinion to the House of Representatives, 485 A.2d 550, 552 (R.I.1984), fully sets forth the rationale employed by this court in construing a statute:

"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)."

While our present constitution delineates the parameters for certain forms of legislative compensation, a fair interpretation of art. VI, sec. 3 and other relevant provisions of the 1986 Rhode Island Constitution nevertheless compels us to conclude that participation by state legislators in the retirement system is neither by express means nor by necessary implication prohibited for the reasons set forth below.

We begin our analysis by reenunciating a principle expounded by Justice Oliver Wendell Holmes in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963, 983 (1921), "[A] page of history is worth a volume of logic" in determining the extent of state as well as federal constitutional limitations.

Historically, the power of the General Assembly in this state, as in other states, has been plenary and unlimited, save as this authority may have been limited by the Constitution of the United States and the Constitution of the State of Rhode Island. In re Advisory Opinion to the House of Representatives, 485 A.2d at 553; Opinion to the Governor, 101 R.I. 203, 206, 221 A.2d 799, 801 (1966); Payne & Butler v. Providence Gas Co., 31 R.I. 295, 315, 77 A. 145, 153 (1910). It has been set forth in Payne & Butler v. Providence Gas Co., supra, that from the granting of the charter of King Charles II, July 8, 1663, to the date of the acknowledgment of our independence by the British Crown, the Rhode Island Legislature possessed the complete powers conferred by the royal charter and thereafter from the time of independence the Legislature had the combined powers of crown and Parliament, which included all attributes of sovereign authority. Id. After May 29, 1790, when this state in convention ratified the Federal Constitution, those powers were limited by that Constitution. Thereafter, until May 1843, the Legislature retained all residual powers of sovereignty, save those delegated to the federal government. Id. at 315, 77 A. at 153-54. In 1843 these powers were again diminished by limitations set forth in our State Constitution.

Unlike the United States Congress, the Rhode Island General Assembly does not look to our State Constitution for grants of power. In Re Advisory Opinion to the House of Representatives, 485 A.2d at 553; Payne &...