## Facts

- The Rhode Island House of Representatives invoked the state constitution’s advisory-opinion procedure to obtain the Rhode Island Supreme Court’s views on the constitutionality of pending legislation.
- Rhode Island voters had recently adopted separation-of-powers amendments restructuring the allocation of authority among the three branches, including provisions concerning (a) legislative participation on boards and commissions exercising executive power and (b) appointment authority for entities exercising executive power.
- Proposed legislation concerning the Coastal Resources Management Council (CRMC) would have allowed members of the General Assembly to serve on the CRMC.
- The proposed legislation also would have authorized the Speaker of the House to appoint public members of the CRMC.
- The request presented constitutional questions in a nonadversarial posture; the court’s response would not resolve a dispute between private parties.

## Issues

1. Whether pending legislation permitting legislators to serve on the CRMC is constitutional under Rhode Island’s separation-of-powers amendments addressing legislative service on entities exercising executive power.
2. Whether pending legislation authorizing the Speaker of the House to appoint public members of the CRMC is constitutional under the constitutional allocation of appointment authority for entities exercising executive power.
3. Whether, for separation-of-powers purposes, the CRMC is an entity that exercises executive power such that the relevant constitutional restrictions apply.

## Decision

- The Rhode Island Supreme Court issued an advisory opinion answering the House’s certified constitutional questions regarding the pending CRMC legislation.
- The Court concluded that the challenged aspects of the proposal were unconstitutional to the extent they (a) placed legislators on an entity exercising executive power and (b) vested appointment authority for that entity in the Speaker rather than the constitutionally designated appointing authority.
- Because the proceeding was advisory, the Court did not enter a judgment affirming or reversing a lower-court decision.

## Legal Principles

- In an advisory-opinion proceeding, the court may provide constitutional guidance on pending legislation when properly requested by a coordinate branch under the state constitution, without adjudicating private rights.
- Separation-of-powers provisions that bar legislative service on bodies exercising executive power prohibit statutory schemes that place legislators on such entities.
- Where the constitution allocates appointment power for entities exercising executive power to a specified executive actor (subject to any constitutionally required confirmation process), the legislature may not reassign that appointment power to a legislative officer by statute.
- Determining whether a board or council is subject to separation-of-powers restrictions turns on the nature of its statutory functions; regulatory, permitting, and enforcement responsibilities are characteristic of executive power.
- Statutory and constitutional interpretation begins with the plain language of the text, applied in light of the relevant structural allocation of governmental powers.

## Conclusion

The Rhode Island Supreme Court’s advisory opinion treated the CRMC as an entity exercising executive power and advised that pending legislation allowing legislators to serve on the CRMC and authorizing the Speaker to appoint its public members conflicted with the state constitution’s separation-of-powers and appointment provisions.


In re Request for Advisory Opinion from House of Representatives, 961 A.2d 930 (R.I. 2008)