Vol 12 No 2 - Roger Williams University School of Law

ROGER WILLIAMS UNIVERSITY LAW REVIEW

VOLUME 12 Winter 2007

ROGER WILLIAMS UNIVERSITY RALPH R. PAPITTO SCHOOL OF LAW © 2007 Roger Williams University Law Review ISSN 1090-3968 i

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ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME TWELVE

WINTER 2007

NUMBER TWO

EDITORIAL BOARD Terrence P. Haas Editor-in-Chief

Kimberly A. Tracey Managing Editor Kevin N. Rolando Executive Articles Editor

Elizabeth A. Suever Articles Editor

Margreta Vellucci Articles Editor

Matthew J. Costa Executive Notes & Comments Editor Russell E. Farbiarz Notes & Comments Editor

Hinna Mirza Upal Notes & Comments Editor

Christine C. List Rhode Island Editor

ASSISTANT EDITORS Jessica Bosworth Leah J. Donaldson Matthew Jill Brian K. Koshulsky Christina Middleton Senno Jason VanVolkenburgh

Mark H. Hudson Colin M. McNiece

STAFF Wendy Andre Alison Conboy Monica Fanesi Michelle Gobin J. Timothy Lebsock Adam Noska Micah Penn Aaron L. Shapira

Kathleen J. Andresen Debra Conry J. David Freel Mary B. Kibble Kevin W. Lewis Christina Paradise Hadley Perry Ashley Taylor

FACULTY ADVISOR Peter S. Margulies

Alexandria E. Baez Matthew L. Fabisch John M. Greene Ronald LaRocca Megan K. Maciasz Allyson Picard Kenneth Rampino

ADMINISTRATIVE ASSISTANT Shirley Staskiewicz

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ROGER WILLIAMS UNIVERSITY LAW REVIEW VOLUME TWELVE WINTER 2007

NUMBER TWO

TABLE OF CONTENTS Page ARTICLES Gay Marriage in Rhode Island: A Big Issue in a Small State………….……. Joan Catherine Bohl

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Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water)…….Thomas R. Bender

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The Rhode Island General Assembly in the Defense of Civil Liberties …………….…………Steven Brown

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NOTES & COMMENTS Joint Tortfeasors, Full Compensation, and the 1,800 Degree Crucible: Rekindling Rhode Island’s Uniform Contribution Among Tortfeasors Act in the Aftermath of the Station Nightclub Fire………………………………..…Alexandria E. Baez

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Spousal Disinheritance in Rhode Island: Barrett v. Barrett and the (De)evolution of the Elective Share Law ………………..………...... Kenneth Rampino

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2006 SURVEY OF RHODE ISLAND LAW ……………..……….. 463

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ROGER WILLIAMS UNIVERSITY SCHOOL OF LAW 2006 – 2007 FACULTY AND ADMINISTRATIVE OFFICERS Roy J. Nirschel, M.A., Ph.D., University of Miami, University President. David A. Logan, B.A., Bucknell University; M.A., University of Wisconsin; J.D., University of Virginia School of Law; Dean and Professor of Law. Michael J. Yelnosky, B.S., University of Vermont; J.D., University of Pennsylvania Law School; Associate Dean for Academic Affairs and Professor of Law. Kristen M. Fletcher, B.A., Auburn University; J.D., University of Notre Dame Law School; LL.M., Northwestern School of Law of Lewis & Clark College; Director of Marine Affairs Institute. Gail I. Winson, B.A., Moravian College; M.S., Drexel University; J.D., University of Florida; Associate Dean for Library and Information Services and Associate Professor of Law. Jessica Elliott, B.S., Cornell University; J.D., Boston College Law School; Director of the Legal Writing Program and Professor of Legal Writing. Laurie Barron, B.A., Yale University; M.S.W., New York University School of Social Work; J.D., New York University School of Law; Director of the Feinstein Institute for Legal Service. Dennis J. Tonsing, B.A., St. Mary=s College of California; M.A., Northern Arizona University; J.D., Southwestern University School of Law; Dean of Students and Director of the Academic Support Program. Michael W. Boylen, B.A., University of Notre Dame; M.S., Suffolk University; Assistant Dean of Admissions. Anthony L. Bastone, II, B.S., The University of Texas at Arlington & Northeastern State University; M.A., Sam Houston State University, The Institute of Contemporary Corrections; Assistant Dean of Career Services. Lorraine Newton Lalli, B.A., Spelman College; J.D., Roger Williams University School of Law; Director of Diversity and Outreach and Associate Director of Academic Support Program. Renee E. Alten, B.A., Washington College; J.D., Southern New England School of Law; Director of Admissions. Elizabeth Kowal, Esq., B.A., Colby College; J.D., Northeastern University School of Law; Associate Director of Career Services. Jon T. Strauss, B.S., Massachusetts Institute of Technology; J.D., Harvard Law School; Associate Director of the Academic Support Program. Liz Tobin-Tyler, B.A., M.A., University of Texas at Austin; J.D., Northeastern University School of Law; Director of the Feinstein Institute for Legal Service. Kathy Massa, B.S. Roger Williams University; Director of Business Services. Linda J. Vieira, B.S., Roger Williams University; Director of Student Finance and Records. Denise Rousseau, B.A., Salve Regina University; M.A.T., Bridgewater State College; Director of Financial Aid. Chelsie Horne, B.S., M.B.A., C.M.P., Johnson & Wales University; Director of Alumni, Programs and Events.

Cecily V. Banks, B.A., Sweet Briar College; J.D., University of Virginia School of Law; Professor of Legal Writing. Carl T. Bogus, A.B., J.D., Syracuse University; Professor of Law. Marcia Canavan, B.A., M.A., UCLA; J.D., University of Colorado School of Law; Professor of Legal Writing. John Chung, B.A., Washington University; J.D., Harvard Law School; Associate Professor of Law.

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Elizabeth Colt, B.A., Barnard College: Columbia University; J.D., Emory University School of Law; Professor of Legal Writing. Nancy L. Cook, B.A., Ohio State University; M.F.A., Creative Writing, American University; J.D., Georgetown University Law Center; Associate Professor of Law and Director of the Community Justice and Legal Assistance Clinic. Edward J. Eberle, B.A., Columbia College; J.D., Northwestern University School of Law; Professor of Law. Jorge O. Elorza, B.S., University of Rhode Island; J.D., Harvard Law School ; Assistant Professor of Law. Scott Gabriel, B.A. College of the Holy Cross; J.D., Boston College Law School; Visiting Professor of Legal Writing. Jared A. Goldstein, B.A., Vassar College; J.D. University of Michigan Law School; Associate Professor of Law. Jonathan M. Gutoff, A.B., Brown University; J.D., University of Chicago School of Law; Associate Professor of Law. Diana Hassel, B.A., Mount Holyoke College; J.D., Rutgers, The State University of New Jersey School of Law-Newark; Associate Professor of Law. Andrew Horwitz, B.A., Haverford College; J.D., New York University School of Law; Professor of Law and Director of Clinical Programs. Robert B. Kent, B.A., Harvard University; LL.B., Boston University School of Law; Distinguished Visiting Professor of Law. Bruce I. Kogan, B.A., Syracuse University; J.D., Dickinson School of Law; LL.M., Georgetown University Law Center; Professor of Law. Niki Kuckes, B.A., Cornell University; J.D., Yale Law School; Associate Professor of Law. Timothy K. Kuhner, A.B., Bowdoin College; J.D., Duke University School of Law; Assistant Professor of Law. Anne Lawton, A.B., M.B.A., University of Michigan; J.D., University of Michigan Law School; Associate Professor of Law. Peter S. Margulies, B.A., Colgate University; J.D., Columbia University School of Law; Professor of Law. Colleen P. Murphy, B.A., University of Virginia; J.D., Yale Law School; Professor of Law. George C. Nnona, LL.B., Obafemi Awolowo University; Bar Certificate, Nigerian Law School; LL.M., University of Lagos and Harvard Law School; Associate Professor of Law. David A. Rice, B.B.A., University of Wisconsin; LL.B., Columbia University School of Law; Professor of Law. Jane E. Rindsberg, B.A., Hamilton College; J.D., Duke University School of Law; Professor of Legal Writing. Larry J. Ritchie, B.A., J.D., University of South Carolina; LL.M., Georgetown University Law Center; Professor of Law. Emily J. Sack, B.A., Swarthmore College; M.A., M.Phil., Columbia University; J.D., New York University School of Law; Associate Professor of Law. Ellen M. Saideman, B.A., Barnard College; J.D., Columbia University School of Law; Professor of Legal Writing. Anthony J. Santoro, B.A., Boston College; J.D., LL.M., Georgetown University Law Center; President Emeritus of Roger Williams University and Professor of Law. Jon W. Shelburne, B.A., University of Dallas; J.D., Texas Tech University School of Law; Visiting Assistant Professor of Law. B. Mitchell Simpson III, A.B., Colgate University; M.A., M.A.L.D., Ph.D., Tufts University; LL.B., University of Pennsylvania Law School; Visiting Professor of Legal Writing. Louise E. Teitz, B.A., Yale College; J.D., Southern Methodist University School of Law; Professor of Law. Keeva L. Terry, B.A., Harvard University; M.B.A., University of Michigan; J.D., Columbia University School of Law; Associate Professor of Law. Robert M.C. Webster, B.A., University of Sussex and Universite de Reims; Visiting Professor of Law. David M. Zlotnick, B.A., State University of New York at Binghamton; J.D., Harvard Law School; Associate Professor of Law.

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Identification Statement The Roger Williams University Law Review is a journal of legal scholarship and commentary that is managed, edited and published by students of Roger Williams University School of Law. The Law Review publishes three issues each year. The Fall issue is devoted to topics of national interest. The Spring issue focuses on topics with a unique Rhode Island flavor, featuring a topical survey of Rhode Island law. The Law Review also publishes a third issue, the focus of which varies yearly. Committed to serving both a national and Rhode Island audience, the Law Review is distributed to law school libraries, government institutions, private law firms and individual subscribers. Subscription rates: $28.50 per year in the United States; $33.00 per year in foreign countries. Single issues: $15.00 each. Address all subscription requests and other business communications to the attention of the Administrative Assistant, Roger Williams University Law Review. If a subscription is to be discontinued at the expiration of the current volume, then notice to that effect should be sent to the Administrative Assistant; otherwise, subscriptions will be automatically renewed. One month’s notice is necessary to effect change. Contact information: Roger Williams University Law Review 10 Metacom Avenue Bristol, RI 02809 Email: [email protected] Phone: (401) 254-4661 Fax: (401) 254-4640 Copies of Articles: Except as otherwise provided, the author of each article in this issue and the Roger Williams University Law Review grant permission for copies to be made available for classroom use, provided that (1) the copies are distributed at or below cost; (2) the author and the Law Review are identified on each copy; (3) a proper notice of copyright is affixed to each copy; and (4) the user notifies the Law Review that copies have been made. Technology: The Law Review was created using IBM compatible personal computers running Microsoft Windows, Microsoft Word and Adobe Acrobat software.

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Submission of Manuscripts and Letters The Roger Williams University Law Review accepts unsolicited manuscripts and letters, both in paper form and via electronic mail. All manuscripts must be typewritten, double-spaced and on 8½ x 11" paper; footnotes should conform to The Bluebook: A Uniform System of Citation (18th ed. 2005). Although the Law Review reserves the right to edit all manuscripts and letters, it is the goal of the Law Review to preserve the individuality of each author’s work. The Law Review edits manuscripts for spelling, grammar, citation form, and other technical matters. Neither the author’s writing style nor the substantive structure are revised without the express consent of the author. Manuscripts and letters cannot be returned. Acknowledgment of receipt of manuscripts is made immediately upon receipt, and publication decisions are made within one to two weeks of receipt. Copyright is reserved by the Law Review to all material published by the Law Review, absent express agreement to the contrary.

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Articles Gay Marriage in Rhode Island: A Big Issue in a Small State Joan Catherine Bohl∗

INTRODUCTION

In the 2003 opinion of Goodridge v. Department of Public Health,1 a plurality of the justices2 on the Massachusetts Supreme Judicial Court held that denying a marriage license to a same-sex couple violated the state constitution.3 Three dissenting members of the court, each writing separately, attacked, among other things, the plurality’s very premise.4 Some scholars and pundits heralded the opinion as an unprecedented victory for civil rights,5 some condemned it as a destructive aberration.6 But, as a

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Assistant Professor of Legal Writing at Stetson University College of Law. 1. 798 N.E.2d 941 (Mass. 2003). 2. Chief Justice Marshall wrote the plurality opinion, id. at 948, and was joined by Justices Cowin and Ireland. Justice Greaney filed a concurring opinion, id. at 970; Justice Spina filed a dissenting opinion, id. at 974, and was joined by Justices Sosman and Cordy. 3. Id. at 969. 4. Id. at 974. 5. See, e.g., Lisa Keen, Battle Brews Over Marriage Lawsuits, Strategies Questioned, BETWEEN THE LINES, May 18, 2006, at 8, available at http://www.pridesource.com/download/1420-May-18.pdf; Joanna L. Grossman, Fear and Loathing in Massachusetts: Same-Sex Marriage and Some Lessons from the History of Marriage and Divorce, 14 B.U. PUB. INT. L.J. 87 (2004). 6. See, e.g., Michael Gaynor, Values: Why Republicans Generally Remain Far Preferable (May 18, 2006), http://www.renewamerica.us /columns/gaynor/060518; Lynn D. Wardle, The Curious Case of the Missing

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practical matter, was the opinion such an extraordinary departure from a foundation of statutes, case law and public policy laid down over years, both in Massachusetts and in other states? Or simply the natural and logical, if unanticipated, extension of what had come before? For example, could the members of the Rhode Island Supreme Court examine Rhode Island’s legal landscape in light of the decisional framework the Goodridge plurality supplied and conclude that gay marriage is a constitutional necessity in Rhode Island as well? This Article takes the position that it could. The same legal building blocks on which the Goodridge plurality rested each have a Rhode Island corollary. This Article will locate and assemble them, demonstrating how and why the Rhode Island Supreme Court could choose to join the Goodridge plurality. This Article is in five parts. Part I gives the factual and procedural background to Goodridge. It also provides a brief overview of the plaintiff couples’ legal arguments. My goal in this last regard is very modest. Numerous learned pieces have already explored the intricacies of the constitutional arguments on both sides of the issue.7 I seek only to give the reader a sense of the constitutional arguments plaintiffs invoked as they relate to the specific outcome of this – and any similar – legal challenge. Part II outlines the Goodridge plurality decision itself, isolating and highlighting the components of its analysis. Part III discusses the nature of marriage and family law in Rhode Island. Marriage obviously has virtually the same far reaching social significance in any state. Rhode Island law affecting marriage and family life, however, has already demonstrated a capacity to adapt to changing family configurations that seems a short step removed from recognizing gay marriage. Indeed, Rhode Island’s legal recognition of the changing face of the American family may already exceed the level of analogous recognition found in preGoodridge Massachusetts law. Part IV examines how judicial review of Rhode Island’s marriage law could unfold, if the Goodridge plurality’s approach were followed. Finally, in conclusion, Part V touches briefly on the dissenting justices’ Legal Analysis, 18 BYU J. PUB. L. 309 (2004). 7. See, e.g., Lynn D. Wardle, A Critical Analysis of Constitutional Claims for Same-Sex Marriage, 1996 BYU L. REV. 1 (1996); Craig W. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a “Simulacrum of Marriage”, 66 FORDHAM L. REV. 1699 (1998).

position in Goodridge, while summarizing the established law that could logically lead to recognition of gay marriage in Rhode Island. I.

THE BACKSTORY{ TC "THE BACKSTORY" \F C \L "1" }8

During March and early April of 2001, seven same-sex couples in five different Massachusetts counties applied for marriage licenses from the appropriate city or town clerk’s office.9 Each couple completed the required forms10 and paid the license fee. In each case the clerk either refused to accept the notice of intention to marry form or refused to issue a marriage license.11 In Massachusetts, the Department of Public Health has statutory responsibility for the issuance of marriage licenses and oversees the registry of vital records and statistics which “enforces all laws” relating to the issuance of marriage licenses.12 A Commissioner of Public Health retains ultimate supervisory authority.13 On April 11, the couples sued the Department of Public Health and the Commissioner of Public Health alleging that the denial of marriage licenses violated the Massachusetts state constitution.14 The Superior Court judge granted summary judgment in favor of the Department of Health and the Commissioner,15 holding that the “plain wording” of the marriage laws precluded an interpretation that marriage was permitted between same-sex couples.16 Although the marriage law provisions did not specifically limit marriage to opposite-sex couples,17 the definition of marriage derived from the common-law concept of a union between one man and one woman.18 The consanguinity

8. Backstory: “1. The experiences of a character or the circumstances of an event that occur before the action or narrative of a literary, cinematic or dramatic work. 2. A prequel.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 131 (4th ed. 2000). 9. Goodridge, 798 N.E.2d at 949. 10. Id. 11. Id. at 950. 12. Id. at 949. 13. Id. at 950 n.4. 14. Id. at 950. 15. Id. at 951. 16. Id. 17. Id. at 952. 18. Id. at 953.

provisions, furthermore, support this interpretation.19 The Superior Court also concluded that the state constitution did not guarantee “the fundamental right to marry a person of the same sex,”20 and that such a restriction was rationally related to a legislative goal of protecting and promoting procreation.21 The plaintiffs appealed and the Supreme Judicial Court granted direct appellate review.22 The plaintiffs first argued that the language of the Massachusetts marriage licensing law is actually gender neutral, both in terms of the minimal qualifications it sets and in terms of its record keeping requirements.23 Massachusetts marriage law restricts the circumstances under which people less than eighteen years of age may marry.24 It prohibits marriage between people with certain communicable diseases and prohibits polygamous marriages.25 It also restricts marriages between men and women who are related by certain degrees of consanguinity.26 None of these restrictions or requirements literally prevent a Massachusetts clerk from issuing a marriage license to a same-sex couple. All plaintiffs were at least eighteen years of age, none had the specified diseases or were seeking polygamous unions, and so on; thus, the plaintiffs argued, the court could resolve the case in their favor without addressing any constitutional questions at all.27 In the alternative, the plaintiffs advanced arguments focusing on the nature of marriage itself rather than on the terms of the governing statutes. The plaintiffs invoked their substantive due process right to be free from government intrusion in decisions relating to family life.28 The United States Supreme Court has 19. Id. at 951. 20. Id. 21. Id. 22. Id. 23. Id. at 952. 24. Id. (citing MASS. GEN. LAWS ch. 207, §§ 7, 25, 27 (2003)). 25. Id. at 951 (citing MASS. GEN. LAWS ch. 207, §§ 4, 8, 28A (2003)). 26. Id. (citing MASS. GEN. LAWS ch. 207, §§ 1, 2 (2003)). 27. Id. at 949 (describing the plaintiffs). 28. See, e.g., Brief of Plaintiffs-Appellants at 21, 24, Goodridge, 798 N.E.2d 941 (No. SJC-08860) (citing Meyer v. Nebraska, 262 U.S. 390 (1923); Moore v. E. Cleveland, 431 U.S. 494 (1977)). The plaintiffs also argued that the statutory limitation on marital partners constituted sex discrimination, a point the Supreme Judicial Court apparently did not consider sufficiently

recognized that the state may not intrude on this protected sphere of life to prohibit interracial marriage,29 the use of birth control by married couples,30 or abortion at early stages of pregnancy.31 These rights are within the same zone of privacy protecting all other aspects of family life and childrearing.32 In essence, the plaintiffs argued that the liberty interest in the creation and management of one’s family applies to the choice of one’s spouse. The plaintiffs thus framed the issue as a facet of the right to marry, not as the right to marry a person of the same sex.33 Furthermore, if the choice of one’s partner, including a same-sex partner, is thus protected then the state may interfere with the choice only in order to further a compelling state interest, and only by means narrowly tailored to achieve that end.34 In addition to the substantive argument that the decision to marry a person of the same sex is part of one’s liberty interest in the self-definition of family, the plaintiffs made a related procedural argument. Since marriage is a fundamental right, they argued, the marriage statutes must apply equally to all individuals who otherwise qualify, whether they want to marry a This equal same-sex partner or an opposite-sex partner.35 protection argument draws heavily on decisions that invalidate restrictions on interracial marriage.

II. THE GOODRIDGE PLURALITY DECISION{ TC "THE GOODRIDGE persuasive to merit discussion. Id. at 8. 29. Id. passim (citing Loving v. Virginia, 388 U.S. 1 (1967)). 30. Id. at 25, 83 n.61 (citing Griswold v. Connecticut, 381 U.S. 479 (1965)). 31. Id. at 12, 22, 27, 40 (citing Planned Parenthood v. Casey, 505 U.S. 833 (1992)). 32. Id. at 42-48. 33. This seemingly semantic distinction was critical to the Superior Court’s rejection of the plaintiffs’ argument. The Superior Court held that although opposite-sex marriage is a fundamental right “deeply rooted in the nation’s history and tradition,” a right to “same sex marriage” was not. Goodridge v. Department of Public Health, No. 20011647A, 2002 WL 1299135, at *9, *11 (Mass. Super. Ct. May 7, 2002) (citations omitted). 34. Brief of Plaintiffs-Appellants, supra note 28, at 28-29 (citing Zablocki v. Redhail, 434 U.S. 374, 387-88 (1978); Marcoux v. Att’y Gen., 375 Mass. 63, 66 (1978)). 35. Id. at 33-34.

PLURALITY DECISION" \F C \L "1" }

The Goodridge plurality first set the stage for its decision by introducing each individual member of the plaintiff couples.36 The court was addressing whether the state can constitutionally ban same-sex partners – any same-sex partners –- from marrying.37 The details of these plaintiffs’ lives – length of their relationships, their professions and the ages of their children, for example – were technically irrelevant.38 Yet by beginning with this litany of human detail, the plurality shifted the focus away from any broad or general formulation of the issue. Clearly, the state’s ban on gay marriage must be justifiable, if at all, when seen in the context of specific human experiences. The Goodridge plurality held, of course, that the ban on gay marriage was unconstitutional. Its holding rests on three basic points. First, Goodridge affirmed the importance of marriage as an institution,39 and noted the general state policy favoring marriage.40 In this regard, the court noted that marital status is a significant source of social, financial, and legal benefits for those who marry and for marital children.41 It noted that the state facilitates bringing children into families, whether by “traditional” means, assisted reproduction or adoption, and does so without regard to parents’ marital status.42 State policy is to provide all children with an opportunity to flourish.43 By exploring the diverse range of practical benefits that flow from marriage, Goodridge essentially set the ground rules for judicial review. Logically, if the practical implications of marriage are so far reaching, then any defense of current limitations on who may 36. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 949-50 (Mass. 2003). 37. Id. at 948. 38. Facial invalidation of a statute means that it is unconstitutional no matter how it is applied. In contrast, invalidating a statute “as applied” strikes down the statute only as it was applied to the individuals petitioning the court. See, e.g., Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321, 1323 (2000); Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 237-38 (1994). 39. 798 N.E.2d at 957. 40. Id. at 955-57. 41. Id. at 956-57. 42. Id. at 962 n.24. 43. Id. at 963.

marry must be practical and comprehensive as well. Second, Goodridge noted that the United States Supreme Court affirmed the essential dignity of private, consensual sexual relationships in Lawrence v. Texas.44 Lawrence thus expressly overruled the High Court’s prior decision in Bowers v. Hardwick,45 and found intimate homosexual relationships entitled to the same privacy under the Federal Constitution46 formerly accorded only to intimate heterosexual relationships. Finally, Goodridge addressed the nature and level of appropriate judicial review. It did not conclude that the Massachusetts constitution offers more protection than the Federal Constitution,47 but did observe that the liberty and equality guarantees of the Massachusetts constitution both protect citizens from unwarranted government intrusion into protected spheres of life and guarantees “‘freedom to’ partake in benefits created by the state for the common good.”48 It then applied a form of rational basis review that incorporated both social science data and logic to conclude that restricting marriage to opposite-sex couples is irrational.49 Under ordinary circumstances this approach alone would pose quite a formidable barrier to the defense. In Massachusetts such heightened rational basis is not “toothless”50 and requires far more than unsupported assumptions51 that prove sufficient to satisfy classic rational basis

44. Id. at 948 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). 45. 478 U.S. 186 (1986). 46. Lawrence, 539 U.S. at 578. 47. Goodridge, 798 N.E.2d at 948 (stating, without further qualification, that “[t]he Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution”) (emphasis added); see also Commonwealth v. Ellis, 708 N.E.2d 644, 650 (Mass. 1999) (noting that the Massachusetts Constitution generally provides due process protection that is coextensive with the protection afforded by the United States Constitution); Trigones v. Att’y Gen., 652 N.E.2d 893, 896 (Mass. 1995) (holding that “[f]or the purpose of due process analysis, our standard of review under the cognate provisions of the Massachusetts Declaration of Rights usually is comparable to that under the Fourteenth Amendment to the United States Constitution”). 48. Goodridge, 798 N.E.2d at 959. 49. Id. at 961. 50. Id. at 960 n.20. 51. Id. at 960 (citing English v. New England Med. Ctr., 541 N.E.2d 329, 333 (Mass. 1989)).

review.52 Furthermore, since the court also framed its inquiry around the specific tangible benefits marriage provides family members, it easily found no specific rational bases for denying them to same-sex couples.53 To a limited extent, Goodridge rests on logic, unsupported and unsupportable by hard data. For example, the court responded to the argument that same-sex marriage would destroy the institution of marriage itself by commenting that a same-sex couple’s desire to marry is a testament to the institution’s continued viability.54 It is impossible to evaluate whether the justices on the Rhode Island Supreme Court would follow the same logic. Most of Goodridge, however, rests on types of precedent and policy found in Rhode Island as well as in Massachusetts. Considered in this light, no significant barrier currently exists in Rhode Island law that would prevent the Goodridge analysis from unfolding there. III. THE NATURE OF MARRIAGE{ TC "NATURE OF MARRIAGE" \F C \L "1" }

In Rhode Island, as in all states, marriage represents not only a profound personal commitment but access to a far reaching array of important and even lucrative benefits.55 In Rhode Island,

52. Lindsley v. Nat’l Carbonic Gas Co., 220 U.S. 61, 78 (1911) (noting that a law will withstand rational basis review “if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed”). For a more recent statement of the rational basis standard in a factually relevant context, see Lofton v. Secretary of Department of Children and Family Services, 377 F.3d 1275, 1277 (11th Cir. 2004) (noting that under typical rational basis review, “[t]he question is simply whether the challenged legislation is rationally related to a legitimate state interest”). Under this deferential standard, a legislative classification “is accorded a strong presumption of validity,” Heller v. Doe, 509 U.S. 312, 319 (1993), and “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” id. at 320 (citation omitted). This holds true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer v. Evans, 517 U.S. 620, 632 (1996). 53. Goodridge, 798 N.E.2d at 960-66. 54. Id. at 965. 55. See, e.g., Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same Sex Marriage, 68 S. CAL. L. REV. 745, 782-86 (1994) (listing benefits flowing from marriage).

as in Massachusetts, entry into marriage is controlled by licensing statutes which clearly contemplate a union between one man and one woman.56 But, as the Supreme Judicial Court noted, this conception of marriage is rooted in common law.57 In Rhode Island, as in Massachusetts, however, the common-law restriction does not necessarily mean that a challenge to the marriage licensing laws is doomed to fail. Rhode Island case law, even more clearly than Massachusetts case law, explicitly recognizes that the institution of marriage must evolve to keep pace with society. For instance, in Landmark Medical Center v. Gauthier,58 a medical center sought payment for medical services provided to the defendant’s deceased husband,59 arguing that the defendant was liable under the doctrine of necessaries.60 The trial court certified a question to the Rhode Island Supreme Court, asking whether the doctrine of necessaries obligated a wife to pay for services provided to her husband,61 given that, at common law, such an obligation was imposed on the husband only.62 The Rhode Island Supreme Court unhesitatingly rejected a literal interpretation of the common-law doctrine,63 and required the defendant wife to pay.64 The court noted that, originally, the doctrine of necessaries was simply a recognition of the fact that, at common law, a woman lost all property rights upon marriage.65 One who provided services to a married woman would have had no choice but to look to the husband for payment.66 Modern marriage, on the other hand, is “a shared enterprise, a joint undertaking that in many ways * * * is akin to a partnership.”67 Women were no longer limited to the role of homemaker, and to 56. R.I. GEN. LAWS § 15-1-1 to -6 (2003). 57. Goodridge, 798 N.E.2d at 952. 58. 635 A.2d 1145 (R.I. 1994). 59. Id. at 1146. 60. Id. at 1152 (noting that “Landmark [sought] an evenhanded approach to the necessaries doctrine”). 61. Id. at 1147. 62. Id. at 1149. 63. Id. at 1152. 64. Id. at 1149. 65. Id. 66. Id. at 1149-50. 67. Id. at 1152 (quoting Jersey Shore Med. Ctr.-Filkin Hosp. v. Baum’s Estate, 417 A.2d 1003, 1010 (N.J. 1980)).

continue to adhere to “outdated policy” would be “utterly unfair.”68 Thus, the court held that the doctrine of necessaries applied equally to either the husband or wife, rendering either financially liable for necessary goods or services provided to the other.69 Furthermore, the court concluded that its holding could be properly applied retroactively to the defendant widow in the case before it because profound social change had so clearly “foreshadowed” such a reinterpretation.70 In this respect, the court concluded, the institution of marriage had evolved, and so must the law. Furthermore, Rhode Island state policy favoring marriage is expressed, as in Massachusetts, through state laws that confer a variety of benefits on married couples simply because they are married. Some examples illustrate these policies. Spouses enjoy a marital privilege in civil trials; one may not testify against the other except in a proceeding intended to dissolve the marital relationship itself.71 A decedent’s spouse is the beneficiary under the state’s wrongful death act.72 A married person is entitled to recover damages for loss of consortium caused by tortuous injury to his or her spouse.73 Additionally, access to some property rights and state benefits would not exist but for marriage. For example, surviving spouses receive a vested life estate in real property owned by the decedent at death.74 Also, a “Community Spouse Resource Allowance” (CSRA) is available to the “spouse remaining in the community when one member of a married couple must be institutionalized for medical reasons.”75 For children, the marital status of their parents is so crucial

68. Id. 69. Id. 70. Id. at 1153. 71. R.I. GEN. LAWS § 9-17-13 (1997); Baker v. Traudt, WC No. 88-46, 1988 R.I. Super LEXIS 9 (R.I. Super. Nov. 16, 1998). 72. R.I. GEN. LAWS § 10-7-2 (1997 & Supp. 2005); Commercial Union Ins. Co. v. Pelchat, 727 A.2d 676, 680-81 (R.I. 1999). 73. R.I. GEN. LAWS § 10-7-1.2; Egan v. Ashley, C.A. No. 93-545, 1994 R.I. Super. LEXIS 100 (R.I. Super. June 21, 1994). 74. See Carr v. Carr, C.A. No. PP 88-4085, 1993 R.I. Super. LEXIS 7 (R.I. Super. Apr. 22, 1993) (citing R.I. GEN. LAWS § 33-25-2 (1995)). 75. See Laporte v. R.I. Dep’t of Human Servs., C.A. No. PC 05-0077, 2005 R.I. Super. LEXIS 163, at *1-8 (R.I. Super. Nov. 9, 2005) (describing the Department of Health Services’ assessment that takes place prior to a determination of medical assistance eligibility).

to their well being that Rhode Island, like Massachusetts, has taken affirmative steps to ensure that non-marital children enjoy legal rights equivalent to the rights of marital children. At common law, children whose parents were married had an automatic right to support and a right to inherit from their fathers. Illegitimate children, in contrast, were “nullius filius” at common law – literally “no one’s son.”76 By statute, Rhode Island has provided that illegitimate children may inherit from a deceased parent “as if born in lawful wedlock.”77 Similarly, portions of the Uniform Paternity Act were enacted to provide a means of obtaining support for illegitimate children.78 These attempts to ensure illegitimate children’s rights cannot substitute, of course, for the full panoply of intangible benefits that marital children enjoy through their parents. Attempts to equalize children’s status do demonstrate, however, both the significance of marriage and a corresponding state policy of eliminating the penalty of illegitimacy insofar as it affects innocent children. Accordingly, under Rhode Island as well as Massachusetts law, marriage must be understood as a wellspring of many specific and tangible benefits. IV. PRIVACY FOR INTIMATE, CONSENSUAL ADULT RELATIONSHIPS{ TC "PRIVACY FOR INTIMATE, CONSENSUAL ADULT RELATIONSHIPS" \F C \L "1" }

In 2003, the United States Supreme Court swept away longstanding barriers to official state acceptance of consensual adult homosexual intimacy. In Lawrence v. Texas79 the Court reviewed a challenge to a Texas criminal statute prohibiting “deviate sexual intercourse”80 and brought by two men who were apprehended while engaged in private, consensual sexual activity within the home. In ruling that the statute was unconstitutional, the

76. See Ronald J. Resmini, The Law of Domestic Relations in Rhode Island, 29 SUFFOLK UNIV. L. REV. 379, 464 (1995) (citing Trimble v. Gordon, 430 U.S. 762, 768 (1977); In re Estate of Cherkas, 506 A.2d 1029, 1029-30 (R.I. 1986); R.I. Hosp. Trust Co. v. Hodgkin, 137 A. 381, 383 (R.I. 1927)). 77. R.I. GEN. LAWS § 33-1-8 (1995). 78. See Waldick v. Piner, 488 A.2d 1218, 1220 (R.I. 1985). 79. 539 U.S. 558 (2003). 80. Id. at 563 (citing TEX. PENAL CODE ANN. § 21.06(a) (2003)).

Lawrence Court noted that a core concept of human dignity81 embodied in the substantive guarantees of the Fourteenth Amendment precluded government intrusion “into deeply personal realms of consensual adult sexual intimacy and one’s choice of an intimate partner.”82 Prior to Lawrence, a state seeking to sanction gay marriage by any means would have run afoul of the United States Supreme Court’s conclusion in Bowers v. Hardwick.83 In that case, the Court concluded that the question presented to it was whether “the Federal Constitution confers a fundamental right on homosexuals to engage in sodomy,”84 and answered the question in the negative.85 Lawrence overruled Bowers,86 noting that this narrow formulation of the issue demonstrated the Bowers Court’s flawed understanding of the expansive liberty issue at stake.87 In fact, Lawrence held, all intimate adult consensual activity was protected within the same zone of constitutional privacy.88 Homosexual activity that formerly could be disapproved of or criminalized could now receive the official sanction of marriage, as a matter of law. Judicial Review of Rhode Island’s Marriage Law – Strict Scrutiny or Rational Basis?{ TC "Judicial Review of Rhode Island’s Marriage Law—Strict Scrutiny or Rational Basis?" \f C \l "1" } If the fundamental right to marry includes the right to marry a person of the same sex, then marriage laws which do not allow such marriages should be strictly scrutinized in the courts – and probably would not survive such scrutiny.89 Yet Goodridge avoided the political “hot potato” of labeling the right to enter into a homosexual marriage as a fundamental right. It did so by 81. See id. at 567. 82. Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003) (describing the U.S. Supreme Court’s holding in Lawrence v. Texas, 539 U.S. 558 (2003)). 83. 478 U.S. 186 (1986). 84. Id. at 190. 85. Id. at 195-96. 86. Lawrence, 539 U.S. at 578. 87. Id. at 567. 88. Id. at 567, 574. 89. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 981-82 (Sosman, J., dissenting) (describing the plurality’s citation to cases addressing fundamental rights analyzed under strict scrutiny while avoiding such a label in the case before it).

asserting that the statutory classification created by the Massachusetts marriage law harmed same-sex households so seriously and in so many ways that it could not even be considered a legitimate exercise of the state’s authority to regulate conduct; thus, it could not even satisfy rational basis review.90 In Massachusetts, the state argued that existing marriage laws had a rational basis because they limited the right to marry to opposite-sex couples and thus promoted procreation and provided the “optimum environment for childrearing.”91 The Goodridge plurality rejected these arguments in terms that would transplant easily into the soil of Rhode Island law. Goodridge noted that neither procreation nor the capacity to procreate were requirements for a valid marriage under Massachusetts law;92 people seeking a marriage license are not asked if they plan to – or are capable of – conceiving children.93 The same is true in Rhode Island.94 Moreover, Goodridge added that at common law even an absolute inability to engage in sexual relations did not automatically void a marriage;95 the common law underpinnings of marriage law are, of course, the same in Rhode Island. Goodridge noted, further, that state law did not demonstrate a preference that children grow up in families headed by two opposite-sex parents.96 In fact, Massachusetts had taken

90. The court concluded that the plaintiffs’ constitutional challenge can be analyzed either in terms of the classification it creates – an equal protection analysis – or in terms of the interest affected – a substantive due process analysis. Id. at 953. It elected to follow U.S. Supreme Court precedent and disregard any theoretical analytical distinctions, noting the “convergence of due process and equal protection principles in cases concerning parent-child relationship,” id. (citing M.L.B. v. S.L.J., 519 U.S. 102, 120 (1996)), and that “‘[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects….’” Id. (quoting Lawrence, 539 U.S. at 575). 91. Goodridge, 798 N.E.2d at 961. Although the state argued these points separately, the court noted that the first “shades imperceptibly into its second.” Id. at 962. 92. Goodridge, 798 N.E.2d at 961 (explaining MASS. GEN. LAWS ch. 207 § 28A (2003)). 93. Id. 94. R.I. GEN. LAWS § 15-1-1 to -6 (2003)). 95. Goodridge, 798 N.E.2d at 961 n.22 (citing Martin v. Otis, 124 N.E. 294 (Mass. 1919)). 96. Id. at 962.

explicit steps to eliminate legal distinctions between children based on family status.97 As outlined earlier, Rhode Island has taken analogous steps, both legislatively and judicially, with the same goal explicitly stated. Finally, Goodridge noted, generally, that the U.S. Supreme Court rejected any notion of a typical American family;98 one family configuration should not be elevated over another. Goodridge’s rational basis review departed from “typical” rational basis review by asking whether the legislative justifications for limitations on marriage are persuasive rather than merely rational.99 In a typical case in which plaintiffs challenge a statute, plaintiffs must show that the legislation cannot even “satisfy a minimum threshold of rationality.”100 The Goodridge plurality, however, incorporated a version of rational basis often associated with analysis of statutes that may harm a disadvantaged class of people.101 In the hands of the Goodridge plurality, rational basis review extended far beyond identifying plausible legislative assumptions.102 Instead, it used rational basis review to explore and apply the logic of related state laws and the significance of social science data.103 Without such an approach – the dissenters were quick to point out104 –the plaintiff couples would have been unsuccessful. Any court, then, that was unwilling to expand its interpretation of rational basis could not follow Goodridge’s lead. Rhode Island courts have already recognized such “searching” rational basis review in other contexts, however, and so would logically reach the same conclusion Goodridge reached using the same approach. For example, the Rhode Island Supreme Court has acknowledged that a more searching level of rational basis 97. Id. at 963 (citing MASS. GEN. LAWS ch. 209C (2003) (paternity statute); Powers v. Wilkerson, 506 N.E.2d 842 (Mass. 1987)). 98. Id. at 963 (citing Troxel v. Granville, 530 U.S. 57, 63 (2000)). 99. Id. at 980 (Sosman, J., dissenting). 100. See id. at 978; see also supra note 52 and cases cited therein. 101. Id. at 960 (citing English v. New England Med. Ctr., 541 N.E.2d 329 (Mass. 1989). 102. The Goodridge plurality did not specifically establish precedential support for this choice of standards, electing, instead, to state generally that in Massachusetts, rational basis is not “toothless.” Id. at 960 (citations omitted). 103. See id. at 980-81 (Sosman, J., dissenting). 104. See id. at 980; see also id. at 984 (Cordy, J., dissenting).

review is appropriate when legislation singles out a group that has suffered discrimination or stereotyping.105 One need look no farther than Rhode Island’s Fair Housing Act for independent legislative recognition that homosexual people are such a group.106 Similarly, in Mackie v. State, a Rhode Island Superior Court used medical and social science data to conclude that distinctions embodied in the Rhode Island Lead Hazard Mitigation Act were irrational. 107 The Act was designed to reduce the presence of leadbased paint in residential rental property and so to reduce the incidence of lead poisoning in young children.108 Landlords who lived on premises in buildings consisting of three units or fewer were exempted, however, and did not have to remove lead-based paint.109 The court found that young children in three-unit dwellings with a landlord living on the premises were as likely to be poisoned by lead paint as those in larger dwellings with absentee landlords – plausible legislative assumptions concerning property maintenance notwithstanding.110 Viewed through the lens of this stronger rational basis review, justifications for limiting marriage in Rhode Island to opposite-sex couples based on the bearing and rearing of children could easily be rejected. In Goodridge, the state asserted that the marriage license law was rational because confining marriage to opposite-sex couples promotes procreation and ensures that children are raised in an optimal setting.111 Goodridge’s general reasons for rejecting this justification would apply in most states. Noting that the United States Supreme Court has expressly rejected the idea of a “typical” American family,112 Goodridge detailed the increase in assisted reproduction113 and commented 105. See, e.g., In re Advisory Opinion to the House of Representatives, 519 A.2d 578 (R.I. 1987). 106. See R.I. GEN. LAWS § 34-37-4(a) (1995 & Supp. 2005). 107. C. A. No. PC05-5144, 2006 R.I. Super. LEXIS 3 (R.I. Super. Jan. 10, 2006). 108. Id. 109. Id. at *2 (noting that the class of landlords who filed suit, challenging the Act’s classifications were “owners of residential apartment buildings and units subject to the strictures of the Rhode Island Lead Hazard Mitigation Act”). 110. Id. at *21-22. 111. 798 N.E.2d at 961. 112. Id. at 963 (citing Troxel v. Granville, 530 U.S. 1 (2000)). 113. Id. at 962 n.24.

that childbearing is neither a prerequisite to – nor a consequence of – many modern marriages.114 Furthermore, Goodridge noted that the state conceded same-sex parents could be excellent parents, and had not produced any evidence that same-sex parenting was contrary to the best interests of the child.115 Rhode Island law also supports the idea that not only can same-sex parenting be consistent with the best interests of the child but that existing statutes can and should accommodate same-sex parenting. In fact, in Rubano v. DiCenzo,116 the Rhode Island Supreme Court may already have gone a step farther than pre-Goodridge Massachusetts law in this regard. The Rubano court simply accepted the idea that same-sex parenting is consistent with the best interests of the child.117 Further, the court interpreted the existing legal framework to resolve the childrearing issues that arose between the same-sex partners in the case. Rubano v. DiCenzo involved a lesbian couple who arranged for a child to be born through artificial insemination.118 The couple lived together “as domestic partners in the same household”119 until the child, a boy, was four. At that point, differences arose between the women and they separated.120 The boy continued to live with Ms. DiCenzo, his biological mother, and had informal visitation with Ms. Rubano, his “heart mom.”121 After this informal arrangement broke down, Ms. Rubano filed a miscellaneous petition in Rhode Island Family Court to establish de facto parental status and visitation.122 The parties settled the matter prior to trial through a “private agreement” which the Chief Justice of the Family Court reviewed, approved, and entered

113. Id. at 961 n.23 (quoting Cordy, J., dissenting: “heterosexual intercourse, procreation and childcare are not necessarily conjoined”). 115. Id. at 963 (noting that the state readily conceded that same-sex parents may be “excellent” parents). 116. 759 A.2d 959 (R.I. 2000). 117. Id. at 977. 118. Id. at 961. 119. Id. 120. Id. 121. Id. at 971. 122. Id. at 962.

as an order of the court.123 The agreement included provisions for visitation to promote “the best interests of the minor child,”124 as an agreement might in attempting to resolve a dispute between opposite-sex parents. It was only after this agreement broke down that anyone thought to contest the Family Court’s jurisdiction.125 At that point, three questions were certified to the Rhode Island Supreme Court, asking, in essence, whether Ms. Rubano qualified as a parent.126 Collectively, the Rhode Island Supreme Court’s resolution of these questions appears to validate the same-sex configuration of family life before it. The court found it unnecessary to rule directly on the first question, which asked whether a child, mother and same-sex partner constituted a “family relationship” for purposes of family court jurisdiction.127 The court noted that the key term for purposes of determining jurisdiction was not simply “‘family relationship,’” but rather was “‘equitable matters arising out of the family relationship wherein jurisdiction is acquired by the court by the filing of [a] petition[] for divorce’” or related matter.128 Since Rubano and DiCenzo had obviously filed no such petition, the first question need not be answered at all. The second certified question was linked to the first. If the 123.

Id.; see also id. at n.2 (explaining the legal significance of a consent order or private agreement under Rhode Island law). 124. Id. at 962. 125. Id. at 963. 126. The questions were: “Question I: Does a child, biological mother, and same sex partner, who have been involved in a committed relationship constitute a ‘family relationship’ within the meaning of G.L. 8-10-3, such that the Family Court has jurisdiction to entertain a miscellaneous petition for visitation by the former same sex partner when the same sex partner is no longer engaged in the committed relationship?” Id. at 963; Question II: “If the answer to the above question is in the negative, does such a conclusion violate Article I Section 5 of the Rhode Island Constitution?” Id. at 965; Question III: “If the answer to question I is in the affirmative, then does a non-biological partner, who has been a same sex partner with a biological mother have standing to petition the Rhode Island Family Court for visitation pursuant to G.L. 15-5-1 et al. [sic]?” Id. at 976-77. 127. Id. at 963. 128. Id. at 964 (quoting R.I. GEN. LAWS § 8-10-3) (emphasis added by court). Rhode Island law also allows a suit for divorce from bed and board, and an action for separate maintenance, as noted in the text of the statute. Id.

court concluded that the family court did not have jurisdiction by virtue of a family relationship, did this conclusion violate the state constitutional guarantee that every person “hav[e] recourse to the laws for all injuries or wrongs?”129 The court concluded that the constitutional guarantee was satisfied because Ms. Rubano actually had several possible remedies for the “injury or wrong” of being denied visitation.130 First, Ms. Rubano had a statutory right under Rhode Island General Laws § 15-8-26 to ask the Family Court to determine “the existence or nonexistence” of a mother and child relationship between herself and the child.131 The court noted that any “interested party” could bring an action seeking such a determination under the Uniform Law on Paternity.132 The terms of this law specified that provisions applicable to the father and child relationship would apply to the mother and child relationship “insofar as practicable.”133 Further, the court noted, Rhode Island case law had established that a putative parent could seek redress under this provision without alleging a biological relationship with the child in question.134 Thus, Ms. Rubano’s “close involvement with the child’s conception,”135 her participation in his upbringing, and the parties’ alleged visitation agreement, taken together, constituted a parent-like relationship.136 This parent-like relationship gave Ms. Rubano standing to bring a parental rights claim.137 The court identified another remedy available to Ms. Rubano and arising out of the Rhode Island Uniform Law on Paternity;138 this remedy further emphasized its willingness to recognize and support same-sex family relationships. Although Ms. Rubano was obviously not a biological father, she was “involved” in the joint decision with DiCenzo to have DiCenzo conceive a child through 129. Id. at 966. 130. Id. 131. Id. at 977. 132. Id. at 966. Rhode Island adopted a hybrid version of the Uniform Law on Paternity. Id. (citing P.L. 1979, ch. 185 § 2). 133. Id. (quoting R.I. GEN. LAWS § 15-8-26). 134. Id. at 967 (citing Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990)). 135. Id. 136. Id. 137. Id. 138. Id. at 970.

artificial insemination.139 She also assumed primary financial responsibility for the procedure and was included on the child’s birth announcement and baptismal certificate.140 The court explained that Ms. Rubano had a right to seek a visitation order in the Family Court pursuant to its jurisdiction over “those matters relating to adults who shall be involved with paternity of children born out of wedlock.”141 The court conceded that the term “paternity” ordinarily suggests “fatherhood,” but noted that the legislature has specifically rejected such a rigid limitation.142 Rhode Island General Laws § 43-3-3 provides that “[e]very word importing the masculine gender only may be construed to extend to and to include females as well as males.”143 Thus, if Ms. Rubano’s basic factual allegations proved true, she would have been able to establish that she had been “‘involved with [the] paternity’ of this child born out of wedlock within the meaning of this discrete jurisdictional provision of § 8-10-3.”144 With Family Court jurisdiction thus established,145 the court could have concluded that Rubano, as a de facto parent, was entitled to visitation.146 The Rubano court further supported this position by noting that the idea of finding parental rights in the absence of either adoption or the traditional biological relationship found support in other authorities.147 In Troxel v. Granville,148 the United States Supreme Court affirmed the principle that a child’s parent has a fundamental right to make decisions regarding visitation. The Rubano court noted, however, that Troxel recognized that “persons outside the nuclear family” may become involved in

139. Id. at 971. 140. Id. 141. Id. (citing R.I. GEN. LAWS § 8-10-3). 142. Id. at 970 n.13. 143. Id. (citing R.I. GEN. LAWS § 43-3-3 (1956)). 144. Id. at 971. 145. Id. at 971 n.14. 146. The court noted that Rubano was also entitled to seek a remedy in the superior court pursuant to its general equitable powers, but that the superior court would have abstained, as a mater of comity, since suit was initiated in the family court. Id. at 972. 147. Id. at 973-74. 148. 530 U.S. 57 (2000).

childrearing.149 Further, the Rubano court noted that the High Court’s own precedent has described familial rights as relational – arising out of the intimacies of daily association as well as from a blood relationship.150 Indeed, the High Court has noted the “clear distinction between a mere biological relationship and an actual relationship of parental responsibility.”151 Moreover, the United States Supreme Court considered the relational rights formed through life shared in a common home so crucial that they may sometimes trump the rights of a biological parent whose only relationship with the child is formed outside the family unit.152 The Rubano court also voiced its agreement with states that have looked beyond biological ties to find that some care giving adults may become psychological parents. In V.C. v. M.J.B.,153 the New Jersey Supreme Court found that the same-sex partner of a child’s biological mother had become a psychological parent with legally cognizable rights, when four criteria were met.154 First, the legal parent must consent to the relationship between the third party and the child. Second, the third party must have lived with the child.155 Third, the third party must have performed parental functions for the child “to a significant degree.”156 Fourth, “a parent-child bond must be formed.”157 The Rubano court noted that these criteria underlie its own analysis.158 It also commented on the connection between these criteria and the principles underlying the American Law Institute’s most recent statement on the law of family dissolution.159 The bonds children form with the adults who care for them are important, and must be protected under the limited circumstances all authorities seem to

149. 759 A.2d at 973 (quoting Troxel, 530 U.S. 57). 150. Id. 151 Id. (emphasis added) (citing Lehr v. Robertson, 463 U.S. 248, 261 (1983)). 152. Id. at 974 (citing Michael H. v. Gerald D., 491 U.S. 110, 123 (1989)). 153. 748 A.2d 539 (N.J. 2000). 154. Id. at 551. 155. Id. 156. Id. 157. Id. 158. 759 A.2d at 974. 159. Id. at 974-75 (citing the American Law Institute, Principles of Family Dissolution: Analysis and Recommendations, ch 2 §§ 2.03 – 2.21 (Tent. Dr. No.4, Apr. 10, 2000 & May 16, 2000)).

embrace. In light of Rhode Island’s recognition of searching rational basis review and the Rubano majority’s affirmation of same-sex parenting, an attempt to defend the existing limits of Rhode Island’s marriage law seems even more clearly doomed to fail than the unsuccessful defense in Goodridge. Indeed, to argue that marriage must be limited to opposite-sex couples to promote child bearing and rearing seems not only irrational, but also contrary to Rhode Island’s existing precedent and policy. CONCLUSION: IS THE PAST PROLOGUE?{ TC "CONCLUSION: IS THE PAST PROLOGUE?" \F C \L "1" }160

Focusing on the Goodridge plurality opinion suggests that recognition of gay marriage is completely consistent with existing Rhode Island law. And so it is. But a discussion of the Goodridge approach as a whole requires recognition that the dissenting opinion outlined an alternative route that the Rhode Island Supreme Court could also, conceivably, take. Although this alternative route would lead a court to affirm existing restrictions in the marriage law, it actually diverges from the criteria laid out by the plurality only with regard to the standard of review. The Goodridge dissent took issue with the plurality’s formulation of the standard of review by offering two alternative perspectives. In the hands of the plurality, rational basis required more than plausible assumptions – it incorporates medical advancements, social science data and logic. The Goodridge dissent suggested, first, that the plurality’s rational basis review was so searching that it distorted traditional rational basis beyond Traditional rational basis requires only that recognition.161 legislators have some plausible justification for a given law. It need not be persuasive. It must simply satisfy a “minimal threshold of rationality.”162 Alternatively, the Goodridge dissenters suggested that the plurality’s use of rational basis review was flawed not because it was too willing to go beyond basic plausible rationales, but

160. With apologies to WILLIAM SHAKESPEARE, THE TEMPEST, Act II, Sc. I, l.261. 161. 798 N.E.2d at 980 (Sosman, J., dissenting) (describing the plurality’s standard of review as “some undefined stricter standard”). 162. Id. at 978.

because once one goes beyond basic, plausible rationales, two contrary conclusions are possible. First, the Goodridge dissent pointed out that people are free to raise their children in a variety of family structures as long as the children are not harmed.163 The state cannot interfere, but nor must it officially support every option chosen.164 Second, although some data suggests that the children of same-sex parents flourish, other data is not so clear. Given that openly homosexual parents are a fairly recent phenomenon, no longitudinal study can conclusively demonstrate the effect of such a family structure.165 Thus, in the dissenter’s view, it was not irrational to offer the preferred status of marriage to a family configuration that has enjoyed centuries of acceptance.166 Stripped of the gloss of political rhetoric, the limitations on who may marry could be considered simply the result of a preference for a time-tested formula over a new formula.167 Despite the Goodridge dissenters’ view, under Rhode Island law, marriage is a fundamental right that confers diverse benefits on couples who marry, and significantly, on marital children. Further, Rhode Island case law has affirmed the principle that marriage, as an institution, can and should evolve. Also, under Lawrence, the substantive guarantees of the Fourteenth Amendment now protect intimate homosexual activity. Rhode Island courts have acknowledged that same-sex parenting can be consistent with the best interests of the child, and existing legal structures can be adapted to address the problems of families headed by same-sex couples. Finally, Rhode Island courts have already used logic, evidence of past discrimination, and social science data in applying rational basis review. In short, the stepping stones that led a plurality of the Massachusetts Supreme Judicial Court to rule that gay marriage is a constitutional necessity are firmly in place in Rhode Island.

163. Id. at 979. 164. Id. 165. Id. at 980. 166. Id. at 981-82. 167. Id.

Legislative Control Over the Coastal Resources Management Council After Separation of Powers: Grasping at Thin Air(, Land, and Water) Thomas R. Bender*

In his first inaugural address, Abraham Lincoln acknowledged a fundamental aspect of American government – if the people grow “weary of the existing government” they have the option to “exercise their constitutional rights of amending it.”1 State governments are formed and defined by a constitution, an instrument “aptly termed a legislative act by the people themselves in their sovereign capacity.”2 And “in their hands it is as clay in the hands of a potter: they have the right to mold, to preserve, to improve and to refine, and finish it as they please.”3 INTRODUCTION

In 1854 the Rhode Island Supreme Court described the separation of powers clause of the state constitution as “the great

* B.A., University of Rhode Island, 1979; J.D., Washington and Lee University School of Law, 1982. Mr. Bender is a partner in the firm of Hanson Curran LLP in Providence, R.I. where he practices appellate litigation. My thanks to Sharon Atkinson, Juris Doctor Candidate, May 2007, Roger Williams University School of Law, for her significant contribution of research, insight, and enthusiasm. 1. Christian G. Fritz, Fallacies of American Constitutionalism, 35 RUTGERS, L.J. 1327, 1344 (2004) (quoting Abraham Lincoln, First Inaugural Address – Final (Mar. 4, 1981), in 4 THE COLLECTED WORKS OF ABRAHAM LINCOLN (Roy P. Basler ed., 1953)). 2. Payne & Butler v. Providence Gas Co., 77 A. 145, 154 (R.I. 1910). 3. Gordon S. Wood, Foreward: State Constitution-Making in the American Revolution, 24 RUTGERS L.J. 911, 918 (1993) [hereinafter State Constitution-Making], (quoting James Wilson, in 1 THE WORKS OF JAMES WILSON 304 (Robert G. McClosky ed. 1967)).

314

principle of American liberty,” and recognized that “[t]he rights, property, and the liberties of the people [ ] depend upon the due observance of each department of the constitutional limitations and restrictions upon its authority.”4 In 1999, however, notwithstanding the state constitution’s explicit distribution of power into legislative, executive, and judicial departments, and the vesting of the governor with the executive power, a majority of the justices of the Rhode Island Supreme Court joined an important advisory opinion.5 The justices concluded that the Rhode Island General Assembly had exercised substantial executive functions throughout the state’s constitutional history.6 Specifically, the justices found that, historically, the General Assembly had participated in a long-standing practice of making appointments to, and seating themselves on, boards, commissions, and other state entities exercising executive power.7 The 1986 Constitutional Convention re-adopted the state constitution’s reserved powers clause, which read: “[t]he general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited in this constitution.”8 The justices reasoned that this clause implicitly affirmed the General Assembly’s historic exercise of these executive functions as constitutionally permissible.9 Anticipating the controversy to which this opinion might give rise, however, the justices noted that if the historical practice was deemed undesirable, the state constitution would have to be amended.10 And that is exactly what happened. By an overwhelming electoral majority, Rhode Island voters, in 2004, enacted four separate constitutional amendments to halt the legislative exercise of executive power.11 The first and perhaps most significant amendment was the repeal of the reserved powers clause.12 The reserved powers clause was the basis for affirming the constitutional exercise of 4. In re Dorr, 3 R.I. 299, 301 (1854). 5. See generally In re Advisory Opinion to the Governor (R.I. Ethics Comm’n – Separation of Powers), 732 A.2d 55 (R.I. 1999). 6. Id. 7. See id. at 64-65. 8. Id. at 63 (citing R.I. CONST. art. VI, § 10). 9. Id. 10. See id. at 72. 11. See, e.g., R.I. CONST. art. III, § 6 (amended 2004); id. at art. V; id. at art. VI, § 10 (repealed 2004); id. at art. IX (amended 2004). 12. See R.I. CONST. art. VI, § 10 (repealed 2004).

executive power by the legislature. Thus, this amendment served as a very distinct signal that the General Assembly’s past historical practices would no longer have any constitutional import.13 The second change was to the distribution of powers clause. The distribution of powers clause was amended to distribute the legislative, executive, and judicial powers into “three separate and distinct departments” rather than the former, less precise distribution “into three departments.”14 This change emphasized that the legislative and executive powers are not only assigned to separate departments, but their exercise is limited to those departments as well. The third amendment explicitly prohibited elected members of the General Assembly from serving on state entities exercising executive power.15 Last, and certainly not least, the governor was given the constitutional power to appoint all members of state entities exercising executive power.16 This final amendment served as an unmistakable indication that manning such entities is now deemed to be a core executive function under the state constitution.17 Notwithstanding the 2004 amendments, however, this new constitutional scheme has not yet been applied to the Coastal Resources Management Council (hereinafter CRMC).18 The CRMC is an independent regulatory agency charged with exercising executive power.19 Specifically, the CRMC implements, enforces, and executes the laws pertaining to the state’s coastal resources. On the last day of the Rhode Island General Assembly’s 2006 session, legislation was proposed in the House of Representatives that would continue to permit legislators to sit on, and appoint members to, the CRMC.20 At the same time this legislation was proposed, the House of Representatives passed a resolution seeking an advisory opinion from the Rhode Island Supreme Court, asking four questions 13. See id. 14. Id. at art. V (amended 2004). 15. See id. at art. III, § 6. 16. See id. at art. IX, § 5. 17. See id. 18. See H.R. 8170 120th Gen. Asssem., Reg. Sess. (R.I. 2006) (proposed). 19. See, e.g., R.I. GEN. LAWS § 46-23-1(i) (1996 Reenactment); Sartor v. Coastal Res. Mgmt. Council, 542 A.2d 1077, 1078 (R.I. 1988). 20. See H.R. Res. 8290, 120th Gen. Assem., Reg. Sess. (R.I. 2006).

concerning the constitutionality of the proposed legislation in light of the 2004 amendments. Specifically referencing the third clause of section 17 of the “Declaration of Certain Rights and Principles,” the House’s resolution suggested that this clause gives the General Assembly exclusive governmental authority over environmental matters,21 and intimated that this clause places combined legislative and executive authority in the general assembly with respect to environmental issues.22 In essence, the resolution suggested that the House of Representatives anticipates that the Rhode Island Supreme Court will agree that a single clause of article I, section 17 is a “mini” reserved powers clause for environmental matters.23 The House expects the court to conclude that the fundamental constitutional principles of separation of powers, so overwhelmingly embraced by the voters in 2004, was not intended to apply to state governmental action with respect to the environment.24 That legislative reach, however, exceeds its grasp. Although the CRMC exercises powers resembling legislative and judicial functions, they are only quasi-legislative and quasijudicial in nature. These powers therefore do not constitute the constitutional exercise of legislative or judicial power. The only constitutional power an administrative entity such as the CRMC Consequently, the 2004 can exercise is executive power.25 amendments unmistakably prohibit legislators from serving as members of the CRMC, and unmistakably give the governor the constitutional power to appoint its members.26 Clause 3 of section 17 cannot, and does not, trump the design and distribution of power established by the 2004 amendments.27 In fact, clause 3 is a limitation on the only governmental power possessed by the

21. Id. 22. Id. 23. Id. 24. See, e.g., Galbraith v. Lenape Reg’l High Sch., 964 F. Supp. 889, 894 (D.N.J. 2004) (citations omitted); Mich. Chiropractic Council v. Comm’r of the Office of Fin. and Ins. Servs., 716 N.W.3d 561, 567 (Mich. 2006) (citations omitted); City of Hackensack v. Winner, 410 A.2d 1146, 1159 (N.J. 1980); Vt. Dep’t. of Taxes v. Tri-State Indus. Laundries, Inc., 415 A.2d 216, 218 (Vt. 1980) (citations omitted). 25. See, e.g., R.I. CONST. art. III, § 6 (amended 2004); id. at art. VI, §10 (repealed 2004); id. at art. IX, § 5 (amended 2004). 26. See R.I. CONST. art. I, § 17. 27. See id.

legislative branch – the power to enact legislation – and not an extraordinary grant of combined legislative and executive power. The plain import of clause 3 is to impose a duty upon the General Assembly to enact a specific type of environmental legislation – legislation that preserves and protects the state’s natural resources. Nothing in section 17 remotely suggests any intent to empower the General Assembly to exercise the executive authority to implement and administer environmental legislation it enacts.28 The request for an advisory opinion, however, goes beyond the issues specifically related to the CRMC. It also raises a significant issue with respect to control over the pace and timing of implementing the 2004 amendments throughout state government. In its resolution, the House of Representatives also sought advice from the justices as to whether the governor’s new appointment power was self-executing.29 The House sought to discover whether the governor’s power was immediately vested in that office upon passage of the amendment, or whether the General Assembly must enact implementing legislation before the governor is permitted to exercise it.30 Given the two-year delay to date, and the struggle over the CRMC, the House of Representatives’ apparent position is that the appointment power must remain dormant unless and until the General Assembly enacts appropriate implementing legislation.31 That view, however, is at odds with the modern constitutional view that holds a strong presumption in favor of self-executing constitutional provisions that are immediately executable – a presumption that exists precisely to prevent legislative control over when a power may be exercised, and prevents the will of the people from being frustrated by legislative inactivity.32 Certainly the General Assembly may enact legislation imposing conditions on the governor’s appointment power, subject to judicial review concerning the appropriate constitutional limits

28. See H.R. Res. 8290, 120th Gen. Assem., Reg. Sess. (R.I. 2006). 29. See id. 30. See id. 31. See, e.g., Morgan v. Bd. of Sup’rs, 192 P.2d 236, 241 (Ariz. 1948); Davidson v. Sandstrom, 83 P.3d 648, 658 (Colo. 2004); Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960); Ohio ex rel. Russell v. Bliss, 101 N.E.2d 289, 291 (Ohio 1951); Beatty v. Wittekamp, 172 S.E. 122, 125 (S.C. 1933). 32. See H.R. 8170, 120th Gen. Assem., Reg. Sess. (R.I. 2006) (proposed).

on any such conditions. It does not follow, however, that the governor’s exercise of the appointment power must await such legislation. The amendment places only two limitations on the governor’s appointment power. First, the appointments are subject to the advice and consent of the senate.33 Second, the power applies only to boards, commissions, or agencies that exercise executive power.34 Submitting appointments to the advice and consent of the Senate plainly requires no legislation to implement. While the power is limited to boards, commissions, or agencies that exercise “executive power,” the concept of executive power is a constitutionally sufficient principle to guide the exercise of the governor’s appointive power. If a dispute between the legislative and the executive branches arises over whether a particular entity exercises “executive power,” settling that dispute would fall to the judicial branch.35 This Article will demonstrate that the governor’s appointment power is self-executing; that the CRMC exercises executive power in a constitutional sense; and that the governor, therefore, has the constitutional authority and duty to appoint all members of the CRMC. Further, this Article will show that article I, section 17 of the Rhode Island Constitution does not shield the CRMC, or any other state agency or council dealing with environmental matters from the impact of the 2004 amendments. Nor does article I, section 17 alter or affect the governor’s appointment power or permit legislators to sit on the CRMC. To begin, however, it is necessary to briefly address four basic components to the questions at hand: (1) article I, section 17, (2) the CRMC, (3) the 2004 constitutional amendments, and (4) the questions submitted by the House of Representatives to the Rhode Island Supreme Court. ART. I, SEC. 17 – THE “PRIVILEGES OF THE SHORE” AND PROTECTION OF THE ENVIRONMENT

Article I of the Rhode Island Constitution sets forth a “Declaration of Certain Constitutional Rights and Principles.”36 33. See R.I. CONST. art. IV, § 5 (amended 2004). 34. See id. at art. X, § 3 (stating that “[t]he judges of the supreme court shall give their written opinion upon any question of law whenever requested by the governor or by either house of the general assembly”). 35. Id. at art. I. 36. See id. at art. I, § 2.

Along with individual constitutional rights, such as equal protection of the laws,37 due process,38 freedom of religion,39 and the right to trial by jury,40 Rhode Island citizens enjoy constitutional rights related to the “privileges of the shore.”41 Since the adoption of Rhode Island’s first constitution in 1843, article I, section 17 has provided: “[t]he people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state.”42 In 1986, the legislature clarified section 17, to better describe what types of “privileges of the shore” were constitutionally protected.43 The legislature achieved this objective by adding the phrase: “including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore.”44 Combining the two parts, the first clause of article I, section 17 declares: The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state, including but not limited to fishing from the shore, the gathering of seaweed, leaving the shore to swim in the sea and passage along the shore * * *45 The Rhode Island Supreme Court has interpreted clause 1 as a codification of the common law public trust doctrine, a common law doctrine in existence at the time the state constitution was enacted.46 Under the common law, Rhode Island holds title to all

37. 38. 39. 40. 41. 42.

See id. See id. at art. I, § 3. See id. at art. I, § 15. Id. at art. I, § 17. See id. See also R.I. CONST. art. I, § 17 (1842). See COMM. ON THE EXECUTIVE BRANCH AND INDEPENDENT AGENCIES, COMM. REPORT ON CONVENTION RESOLUTION 86-00003 (Comm. Print 1986). 43. R.I. CONST. art. I, § 17 (amended 1986). 44. Id. 45. Champlin’s Realty Assocs. v. Tillson, 823 A.2d 1162, 1165 n.5 (R.I. 2003). 46. Id. at 1165 (citing Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259 (R.I. 1999); Greater Providence Chamber of Commerce v. State, 657 A.2d 1038, 1041 (R.I. 1995)).

tidal lands in a proprietary capacity for the benefit of the public.47 The state’s title, however, is characterized by “two separate yet tightly woven interests: the jus privatum and the jus publicum.”48 The jus privatum relates to the state’s title to tidal lands, whereas the jus publicum relates to the public rights to which the state’s title is subject, such as navigation and fishing.49 Thus, the state’s plenary authority over tidal lands is limited by the state’s common law public trust responsibilities, which are now embodied in the first clause of article I, section 17.50 Consequently, the common law accounts for the state’s title to tidal lands, while clause 1 of section 17 protects the rights comprising the privileges of the shore, thereby limiting the manner in which the state may exercise ownership of tidal lands.51 While clause 1 restricts the exercise of governmental power with respect to public trust lands, the electorate augmented section 17 in 1970 to address legislative responsibility with respect to the whole of the environment generally.52 The electorate added a second clause, declaring that all the state’s citizens “shall be secure in their rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values.” Finally, a third clause was added that declared: and it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of this state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.53

47. Id. Tidal land is land lying seaward of the mean high water mark. Id. 48. Id. at 1666 (citing Providence Steam-Engine Co. v. Providence and Stonington Steamship Co., 12 R.I. 348, 258 (1879) (Potter, J., concurring)). 49. Id. (citing Shively v. Bowlby, 152 U.S. 1, 13 (1894)). 50. See, e.g., Town of Westerly v. Bradley, 877 A.2d 601, 607 (R.I. 2005); Thornton-Whitehouse, 740 A.2d at 1259. 51. See, e.g., R.I. CONST. art. I., § 17; Tillison, 823 A.2d at 1166. 52. See R.I. CONST. art. I., § 17 (amended 1970). 53. Id.

Clause 3 is, in essence, a constitutional environmental protection amendment. It directs the General Assembly to use its legislative power to conserve, preserve, protect, regenerate, and restore the natural environment of the state, by “provid[ing] adequate resource planning” and “adopt[ing] all means necessary and proper by law” for those purposes.54 One year after this mandate was placed in the state constitution, the legislature met this obligation with respect to a limited, but significant, portion of the state’s natural resources by creating the CRMC, “an administrative agency, charged with the responsibility of the preservation, protection, development and, where possible, the restoration of the state’s coastal resources.”55 THE COASTAL RESOURCES MANAGEMENT COUNCIL

The current statutorily required composition of the CRMC consists of: two members of the House of Representatives appointed by the speaker, one of whom must represent a coastal community; two members of the senate appointed by the president of the senate, each of whom represents a coastal community; two members of the general public appointed by the speaker; two members of the public from coastal communities appointed by the speaker; four members appointed by the governor, all of whom must be appointed or elected officials of a local government; and three members of the public from coastal communities appointed by the governor with the advice and consent of the Senate.56 An appointee may only be removed for just cause, and then only by the authority making the appointment.57 By statute, the CRMC’s primary responsibility is the “planning for and management of the resources of the state’s coastal region.”58 The coastal region extends from two hundred feet upland of the mean high water mark, or to that distance “necessary to carry out effective resources management programs,”59 to below the mean high water mark “extending out to

54. Id. 55. Sartor v. Coastal Res. Mgmt. Council, 542 A.2d 1077, 1078 (R.I. 1988); 1970 Pub. Laws ch. 279, §1. 56. See R.I. GEN. LAWS § 46-23-2(a) (1996 Reenactment). 57. Id. at § 46-23-2.1(d). 58. Id. at § 46-23-6(1)(i). 59. Id. at § 46-23-6(2)(iii).

the extent of the state’s jurisdiction in the territorial sea.”60 In other words, the CRMC has jurisdiction over public trust tidal lands plus two hundred feet above mean high tide. The CRMC is designated by law to be the principle mechanism for management of the coastal resources in Rhode Island,61 and is charged with measuring, judging, and regulating all environmental alterations of coastal resources.62 It is the CRMC’s primary responsibility to plan and manage coastal resources by identifying their potential problems as well as uses, and then create programs to address them.63 Statutory authority exists64 that enables the CRMC to adopt rules and regulations consistent with the Administrative Procedures Act (APA), to implement the various management programs it devises,65 and to grant permits, licenses and easements.66 To execute and enforce its programs and policies, the CRMC employs a “commissioner of coastal resources management.”67 The commissioner has the power to order violators to cease and The desist from activities in the state’s coastal region.68 commissioner has the authority to remedy violations if activities violate the provisions of Chapter 23 “or any rule, regulation, assent, order or decision of the counsel.”69 If the violating party does not remedy its action, or if the violator does not obey the commissioner’s order, either the CRMC’s chairperson or the executive director may assess an administrative penalty in accordance with certain statutory guidelines.70 Additionally, administrative or judicial proceedings may be instituted to enforce All the CRMC’s programs, rules, regulations or orders.71 contested cases are required by statute to be heard before administrative hearing officers appointed by the governor with the

60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71.

Id. at § 46-23-6(2)(ii)(A). Id. at § 46-23-1(c). Id. at § 46-23-1(a). Id. at § 46-23-6(1)(i), (ii). Id. at § 42-35-1 to § 42-35-18. See, e.g., id. at § 46-23-6(2)(i); id. at § 46-23-11. Id. at § 46-23-16. Id. at § 46-23-4.1. Id. at § 46-23-7(a)(1). Id. at § 46-23-7(a)(1). Id. at § 46-23-7.1 to 7.2. Id.

advice and consent of the senate.72 The hearing officer then makes proposed findings of fact and conclusions of law that are submitted to the CRMC, which may, with an appropriate written rationale, adopt, modify, or reject them.73 In sum, the CRMC is a quintessential independent regulatory agency. It is “a form of administrative government that is responsible to regulate human activities and is placed outside any cabinet department and under the leadership of a college of commissioners.”74 It is a “‘combined-function agency’ which makes the rules, investigates, prosecutes, and adjudicates,”75 all with the aim of enforcing and thus executing the laws enacted by the legislature with respect to Rhode Island’s coastal resources. THE 2004 AMENDMENTS

In 2004, the electorate approved several changes to the state constitution that were specifically designed to alter the existing distribution of power between Rhode Island’s executive and legislative branches. Although the state constitution has always commanded that “[t]he powers of government shall be distributed into three departments: the legislative, executive and judicial,”76 this clause was amended to emphasize that the departments and their respective powers were to be truly separate and distinct. Specifically, the clause declared that “[t]he powers of government shall be distributed into three separate and distinct departments: the legislative, executive and judicial.”77 Next the state’s chief executive received a constitutional appointment power that the office had not previously possessed. The electorate approved article IX, section 5, which provided: The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by 72. Id. at § 46-23-20 to 20.1. 73. Id. at § 46-23-20.4 (1996). 74. Dominique Custos, The Rulemaking Power of Independent Regulatory Agencies, 54 AM. J. COMP. L. 615, 616-17 (Supp. 2006) (footnote omitted). 75. Id. at 617 (footnote omitted). 76. R.I. CONST. art. V (amended 2004). 77. Id. (emphasis added).

law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments. 78 In addition to giving the executive branch the power to appoint all members of any boards or commissions exercising “executive power under the laws of this state,” or any state or quasi-public entity exercising such power, the state constitution was amended further to specifically prohibit any state senator or representative from sitting as a member of any such entity.79 Article III, section 6 now provides: No senator or representative shall, during the time for which he or she was elected, be appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of this state . . . and further that: No person holding any executive office or serving as a member of any board, commission or other state or quasipublic entity exercising executive power under the laws of this state shall be a member of the senate or house of representatives during his or her continuance in office.80

78. Id. at art. IX, § 5. Under the Federal Constitution the President holds a similar appointments power. U.S. CONST. Art. II, § 2 provides that: [H]e shall nominate, and by and with the Advice and Consent of the Senate, shall appointment Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 79. R.I. CONST. art. III, § 6. 80. Id. The corresponding provision in the Federal Constitution provides: [N]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. U.S. CONST. Art. I, § 6, cl. 2 (emphasis added).

Lastly, in order to emphasize the new constitutional governmental structure, the reserved powers clause, which originally provided: “[t]he general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited by this Constitution,” was repealed in its entirety.81 QUESTIONS POSED TO THE RHODE ISLAND SUPREME COURT

On May 31, 2006, house bill, 06-H 8170, “An Act Relating to Waters and Navigation - Coastal Resources Management Council” was introduced and referred to the House Separation of Powers Committee.82 If enacted, this bill would have repealed chapter 23 of Title 46, - the chapter creating, organizing and empowering the CRMC.83 In its place, the bill would have enacted chapter 23.3, a chapter identical in every respect to the current chapter 23.84 In the resolution seeking an advisory opinion, the House of Representatives indicated the proposed legislation was intended to carry out the General Assembly’s duty under clause 3 of article I, section 17: to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state . . . and for the preservation, regeneration and restoration of the natural environment of the state.85 Notwithstanding the 2004 separation of powers amendments, house bill 06-H 8170 would continue to permit members of the legislature to sit as members of the CRMC, and to divide the appointment power among the speaker of the house, the president of the Senate, and the governor.86 The House of Representatives sought the Rhode Island Supreme Court’s advice on the constitutionality of that continued arrangement in light of the 2004 amendments by posing the following three questions: (1)Would the proposed act, if duly enacted into law, which

81. 82. 83. 84. 85.

R.I. CONST. art. VI, § 10 (repealed 2004) (emphasis added). H.R. 8170, 120th Gen. Assem., Reg. Sess. (R.I. 2006). Id. Id. H.R. 8290, 120th Gen. Assem., Reg. Sess. (R.I. 2006) (quoting R.I. CONST. art. I, § 17, cl. 3). 86. H.R. 8170, ch. 46-23.3.2, 120th Gen. Assem., Reg. Sess. (R.I. 2006).

permits members of the General Assembly to sit as members of the Coastal Resources Management Council (CRMC) . . . violate the constitutional amendment to Article IX, Section 5, so-called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority? (2)Would the proposed act, if duly enacted into law, permit the Speaker of the House to appoint public members to the Coastal Resources Management Council (CRMC) . . .? (4)Is the Coastal Resources Management Council (CRMC) by its nature, purpose, and operation a legislative function[?]87 Lastly, the House of Representatives posed a fourth question not specifically related to the CRMC.88 This question related solely to article IX, section 5, the 2004 amendment giving the governor appointing authority for all state and quasi-public entities exercising executive power. The question stated: “(3) Is the Constitutional Amendment to Article IX, Section 5, so-called Separation of Powers Amendment, passed by the electorate on November 2, 2004, which calls into question the constitutionality of the appointing authority, self-executing or does it require legislative enactment for its implementation?”89 On November 22, 2006, however, the justices issued an order stating “we are unable to entertain the request set forth in the . . . House resolution.”90 The justices explained that they “refrain from answering requests for advisory opinions from either House of the General Assembly when the composition of the legislative body that propounded the question inevitably will change as a result of an intervening general election.”91 Taking notice of the fact that a Rhode Island general election was held on November 7, 2006, the justices reasoned that given

87. H.R. 8290, 120th Gen. Assem., Reg. Sess. (R.I. 2006). 88. Id. 89. Id. 90. In re Advisory Opinion to the House of Representatives (CRMC), 911 A.2d 274, 276 (R.I. 2006). 91. Id. at 275.

the passage of time and “the fact that this Court has not yet issued an Order requesting briefing from the parties or setting a date for oral argument, we will not reasonably be able to respond before the newly composed House is engaged this January [2007].”92 The justices did remark, however, that: Our decision herein must not be interpreted as an attempt to diminish the gravity of the issues presented by this request for our advisory opinion. Clearly, the Honorable House of Representatives as constituted as of January 2, 2007, may adopt a new resolution, propounding these same inquiries to the justices of this Court.93 Notwithstanding the justices’ caution in addressing the 2004 amendments for the first time in an advisory opinion, the issues presented by the House resolution present the first test of the meaning, scope, and strength of the amendments, and how they will be implemented. Whether addressed in 2007 by the justices in the legal arena, or by elected representatives in the legislative arena, they must be addressed. Considering that two years have passed since the voters approved a redistribution of governmental power, and significant questions have yet to be resolved, this Article will attempt to address them here and now. The House directed three questions (questions 1, 2, and 4) to the Rhode Island Supreme Court to determine whether the state constitution still permits legislators to sit on the CRMC or to appoint other persons who will. That arrangement can only be constitutional, however, under one of two circumstances. The first circumstance is narrow while the other is potentially very broad. The narrow circumstance is if the CRMC does not in fact exercise “executive power under the laws of this state.”94 The broader and potentially more far-reaching issue is with regard to the invocation of clause 3 of article I, section 17 by the General Assembly. Assuming the CRMC does exercise executive power, several questions arise. Is the General Assembly’s duty under clause 3 to “provide for the conservation of the . . . natural resources of the state,” and “to adopt all means necessary and proper by law to protect the natural environment,” a grant of sole 92. 93. 94.

Id. Id. at 276. R.I. CONST. art. III, § 6.

and exclusive combined governmental power with respect to environmental matters? If so, this grant of power would permit the legislature to configure and control the CRMC without regard to the 2004 separation of powers amendments.95 Or is clause 3 instead a restriction on the legislative power as are all the other protections of article I’s “Declaration of Certain Constitutional Rights and Principles”?96 Is clause 3 a directive on how the General Assembly must exercise its legislative power, thereby constitutionally obliging the General Assembly to enact only environmental legislation that is consistent with “the preservation, regeneration and restoration of the national environment of the state,”97 setting that as the constitutional standard by which environmental legislation must be judged? In order to resolve these issues, it is important to understand some of Rhode Island’s constitutional history leading up to the 2004 amendments to the state constitution, a constitutional history that is necessarily related to America’s constitutional history. DISTRIBUTION AND SEPARATION OF GOVERNMENTAL POWER – A FUNDAMENTAL ASPECT OF THE AMERICAN GOVERNMENTS FORMED BETWEEN 1776 AND 1787

“Perhaps no principle of American constitutionalism has attracted more attention than that of separation of powers. It has in fact come to define the very character of the American political system.”98 An early articulation of the principle by the French political philosopher Montesquieu declared: “When the legislative and executive powers are united in the same person, in the same body of magistrates, there can be no liberty.”99 Americans, however, in 1776, and more emphatically in the subsequent decade through 1787, elevated the doctrine into what James Madison would call “a first principle of free government.”100 This principle was “born during the state constitution-making period 95. H.R. 8170, ch. 46-23-1(a)(1), 120th Gen. Assem., Reg. Sess. (R.I. 2006). 96. R.I. CONST. art. I. 97. Id. at art. I, § 17. 98. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 17761787, at 151 (The University of North Carolina Press 1969). 99. Id. at 152 (quoting MONTESQUIEU, SPIRIT OF THE LAWS 151-52 (Newmann Bk. XI, Sec. 6)). 100. Id. (quoting James Madison, PHILADELPHIA NATIONAL GAZETTE, Feb. 6, 1792; THE WRITINGS OF JAMES MADISON 91 (Gaillard Hunt, ed.)).

between 1775 and the early 1780s.”101 Initially, Americans were mostly concerned with prohibitions against dual-office holding.102 As a result, they gave only verbal recognition to separation of powers in the early post-Revolutionary state constitutions.103 After 1776, however, concerns arose with respect to “the effects of legislative sovereignty and the unanticipated excesses of the Revolutionary constitutions.”104 The principle of separation of powers was invoked to address “what seemed to be a dangerous blurring of the three major functions of government,” the executive, legislative, and judicial.105 According to historian Gordon S. Wood, nearly all of the proposals for constitutional change occurring between 1776 and 1787 were means of separating these three functions of government.106 The assumption behind this remarkable elaboration and diffusion of the idea of separation of powers was that all governmental power, whether in the hands of governors, judges, senators, or representatives, was essentially indistinguishable; * * * By the 1780’s many had come to believe that the principle of separation of powers was “the basis of all free governments,” the most important attribute of the kinds of governments they had fought for.107 It embodied the political philosophy that, in Thomas Jefferson’s words, “the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.”108 Separation of powers, whether describing executive, legislative, and judicial separation or the bicameral division of the legislature . . . was simply a portioning of 101. 102. 103. 104. 105. 106. 107. 108. ed.)).

Wood, supra note 3, at 911. Wood, supra note 98, at 153-54, 156. Id. Id. at 451. Id. Id. at 452. Id. at 453 (quoting PORTSMOUTH N.H. GAZETTE, March 15, 1783). Id. (quoting THOMAS JEFFERSON, NOTES ON VIRGINIA, 120 (Peden,

political power, the creation of a plurality of discrete governmental elements, all detached from yet responsible to and controlled by the people, checking and balancing each other, preventing any one power from asserting itself too far. The libertarian doctrine of separation of powers was expanded and exalted by the Americans to the foremost position in their constitutionalism, premised on the belief, in John Dickinson’s words, that “government must never be lodged in a single body.”109 In short, the belief took hold that “[t]he separation of this governmental power, rather than simply the participation of the people in a part of government, became the best defense of liberty,” and protection against the potential abuse of governmental power.110 RHODE ISLAND’S EARLY SEPARATION OF POWERS DOCTRINE – IMPLIED PROHIBITION

Despite the evolution and general recognition of separated and distributed powers as an important principle of American government in the years following independence, Rhode Island’s charter government did not embrace the principle of separation of power. Following the Declaration of Independence, the authority of general sovereignty passed to each of the former colonial states, and Congress passed a resolution advising the colonies to form new governments.111 While most colonies formed governments adhering to the notion of separation of powers,112 Rhode Island did not.113 Rhode Island’s original Royal Charter of 1663 remained its governing document,114 revised only to eliminate references to the crown.115 Under the Royal Charter, the General Assembly possessed and controlled all the attributes of sovereignty,116 and it

109. Id. at 604. 110. Id. at 608. 111. See Randy J. Holland, State Constitutions: Purpose and Function, 69 TEMP. L. REV. 989, 989-90 (1996). 112. Id. at 990. 113. Id. 114. In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1330 (R.I. 1986) (Kelleher, J., dissenting). 115. Wood, supra note 3, at 913. 116. In re Advisory Opinion to the Governor (R.I. Ethics Comm’n – Separation of Powers), 732 A.2d 55, 62 (R.I. 1999).

exercised “every kind of governmental power, legislative, executive, and judicial.”117 By 1841, however, “the omnipotence and adamancy of the legislature,” along with limited suffrage and increasing malapportionment, became grievances severe enough for the establishment of a new constitutional document.118 The text of the constitution adopted in 1842, unlike the earlier federal constitution, contained an explicit distribution of powers clause that declared: “[t]he powers of government shall be distributed into three departments; the legislative, executive, and judicial.”119 The distribution of powers clause vested in the governor, the “chief executive power,” thereby requiring him or her to “take care that the laws be faithfully executed.”120 The clause vested the judicial power “in one supreme court, and in such inferior courts as the general assembly may, from time to time, ordain and establish”121 and the legislative power “in two houses, the one to be called the senate, the other the house of representatives; and both together the general assembly.”122 The new constitution, however, also contained a separate provision related to the legislature, declaring that: “[t]he general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this constitution.”123 Notwithstanding the nominal distribution of powers among three different governmental entities, the General Assembly continued to exercise both ultimate judicial power,124 and “substantial executive functions,” including appointments to

117. Gorham v. Robinson, 186 A. 832, 839 (1936); see also City of Providence v. Moulton, 160 A. 75, 78 (1932) (under the Charter, the General Assembly “exercised supreme legislative, executive and judicial power”). 118. PATRICK T. CONLEY, LIBERTY AND JUSTICE: A HISTORY OF LAWS AND LAWYERS IN RHODE ISLAND, 1636-1998, at 205 (Rhode Island Publication Society 1998). 119. R.I. CONST. of 1842, art. III (1843). 120. Id. at art. VII, §§ 1, 2. 121. Id. at art. X, § 1. 122. Id. at art. IV, §§ 2, 10. 123. Id. 124. See Taylor v. Place, 4 R.I. 324, 348-49 (1856). The first digest of laws enacted after the constitution became effective, the General Laws of 1844, contained an act modernizing the method of petitioning the General Assembly for review of decisions of the court. See Patrick T. Conley, Article VI, Section 4: A Case Study in Constitutional Obsolescence, 53 R.I. B.J. 7, 9 (2004).

“executive-type boards.”125 The General Assembly’s postconstitution exercise of judicial power was the subject of In re Dorr,126 and Taylor v. Place,127 the first judicial decisions to address the new state constitution’s text, organizational structure, and governing principles. In re Dorr considered the General Assembly’s constitutional authority to enact legislation “to reverse and annul the judgment of the Supreme Court of Rhode Island for treason rendered against Thomas W. Dorr.”128 The court issued an advisory opinion, which concluded that the General Assembly no longer had authority to exercise “judicial” power.129 The justices based their conclusion on the premise that where the constitution’s text vested one branch with legislative authority and another with judicial, “[e]ach is vested with exclusive power in its appropriate sphere,” and “[t]he power exclusively conferred upon the one department is, by necessary implication, denied to the other.”130 The justices concluded that the object of the constitution was to guard against the “union of all the powers of government in the same hands,” and the judicial power conferred on the courts was “necessarily prohibited to the General Assembly.”131 Addressing the reserved powers clause, the justices concluded the term “power” as used in this clause meant the General Assembly could continue to exercise the legislative power it previously exercised, not the judicial power it had exercised prior to the constitution’s adoption.132 Section 10 did not “reserve” the authority of the General Assembly to exercise judicial power as it had prior to the constitution’s enactment, because, as the justices’ concluded: all judicial power . . . is prohibited to the General Assembly[,] by implication, it is true - but the prohibition is as strong as if it were expressed. To construe the section, therefore, as conferring judicial 125. 126. 127. 128. Id. 129. 130. 131. 132.

In re Advisory Opinion to the Governor, 732 A.2d 55, 64 (R.I. 1999). In re Dorr, 3 R.I. 299, 300 (R.I. 1854). Taylor, 4 R.I. at 324. Dorr, 3 R.I. at 299. The judgment was rendered on June 25, 1844. Id. Id. at 300-01. Id. at 301. Id. at 304.

power, would bring its two points in direct conflict with each other, and render the whole nugatory; for as all judicial power is prohibited to the General Assembly by other provisions of the Constitution, none would be conferred by [Section 10].133 The justices found it would be “unreasonable” to conclude the constitutional text permitted “unit[ing] in one body” the powers that previous provisions had specifically vested in several bodies, “more especially when we recollect that the distribution of these powers is declared by the constitution to be its fundamental principle.”134 Two years later, in Taylor v. Place, the Rhode Island Supreme Court again addressed the same question - whether the General Assembly could exercise judicial power under the state constitution as it had under the charter.135 In holding that it could not, the court related the political philosophy of Montesquieu to the new state constitution’s distribution of powers.136 The court stated that “[t]here can be no liberty where the legislative and executive powers are united in the same person or body of magistrates”; or, “if the power of judging be not separated from the legislative and executive powers.”137 The court began its analysis by setting forth the pertinent distribution of powers provisions of the new constitution. Article III, section 1 distributed the powers of government into three departments: the legislative, the executive, and the judicial.138 Article IV, section 2 vested “the legislative power under the constitution” in the general assembly.139 Article VII, section 1 vested “the chief executive power” in the governor.140 Article X, section 1 vested the “judicial power of this State” in the supreme court and in inferior courts established by the General Assembly.141 Lastly, Article IV, 133. Id. (emphasis added). 134. Id. at 304-05 (emphasis added). 135. Taylor v. Place, 4 R.I. 324, 324 (1856). Taylor involved a justiciable case or controversy between adversaries and was therefore a decision by the court exercising judicial power, as opposed to Dorr, which was a non-judicial advisory opinion. 136. Id. at 341. 137. Id. 138. R.I. CONST. of 1842, art. III (1843). 139. Id. at art. IV, § 2. 140. Id. at art. VII, § 1. 141. Id. at art. X, § 1.

section 10 contained a reservation, providing that “[t]he general assembly shall continue to exercise the powers they have hitherto exercised, unless prohibited in this constitution.”142 To the 1856 Rhode Island Supreme Court, “the unity of design and purpose manifested in” these provisions was obvious.143 The provisions had to be read in light of the principle of the separation of the powers of government, which had a “well known history” and a “long and firmly established meaning and purpose.”144 The new state constitution distributed the powers of government between different departments “for the purpose of excluding each department from exercising those appropriate to the others.”145 Equally significant, if not more so, the court embraced and applied the rule that “[a]ffirmative words, vesting power under a constitution, are construed as prohibiting the exercise of the power by all other departments of the government . . . when otherwise, the words would have no operation at all, or would not have their full and proper operation.”146 The implied prohibition against legislative exercise of the powers explicitly delegated to the judicial and executive departments was so plain, so unavoidable, that it was “equivalent to an express . . . prohibition.”147 Consequently, although the General Assembly had exercised judicial power, this clause did not reserve the exercise of that power. Exercise of judicial power by the General Assembly was “prohibited in this constitution” by the vesting of that power in the courts.148 In other words, the judicial power had been specifically divested from the General Assembly.149 142. Id. at art. IV, § 10. 143. Taylor v. Place, 4 R.I. 324, 347-48 (1856). 144. Id. 145. Id. at 354 (emphasis added). 146. Id. at 358 (emphasis in original). The court noted this rule had always been applied to the clauses distributing the powers of government in American constitutions and that it would “apply to the same clause of our constitution.” Id. (citing Marbury v. Madison, 5 U.S. 137 (1803)) (emphasis added). 147. Id. at 359 (“[T]he affirmative words giving a class of powers to one department, no less plainly and imperatively prohibit the exercise of them by another.”). 148. Id. at 361. 149. The court has vigilantly and continuously guarded against the General Assembly’s attempted exercise of essentially judicial power throughout our state history. See, e.g., City of Providence v. Employee Retirement Bd., 749 A.2d 1088, 1098 (R.I. 2000); State v. Almonte, 644 A.2d 295, 298 (R.I. 1994); Bartlett v. Danti, 503 A.2d 515, 517 (R.I. 1986); Lemoine

After Taylor, the court continued to voice approval of the “implied prohibition” theory of the state constitution’s separation of powers. In Payne & Butler v. Providence Gas Company, the court recognized that, unlike the federal constitution, the object of a state constitution “is not to grant legislative power, but to confine and restrain” its power.150 The power starts as plenary, and the limitations on that power “are created and imposed by express words, or arise by necessary implication.”151 In fact, the court emphasized: The leading feature of the Constitution is the separation and distribution of the powers of the government. It takes care to separate the executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the Legislature any executive act, and neither can exercise judicial authority.152 Thus, the plenary power of the General Assembly, namely “all the powers of the crown and parliament . . . other than those which the constitution textually commits to other branches of our state government”,153 is a plenary legislative power.154 “[T]he state legislature has jurisdiction of all subjects on which its legislation is not prohibited,”155 but not the plenary power to

v. Martineau, 342 A.2d 616, 620 (R.I. 1975); State v. Garnetto, 63 A.2d 777, 779-80 (R.I. 1949). It has also sent polite messages concerning potential violations of the separated judicial and legislative powers. See State v. Price, 672 A.2d 893, 896 n.2 (R.I. 1996) (“Given our holding in Taylor and our conclusion that the power to punish for contempt rests inherently in the courts, were the General Assembly to enact legislation regulating the contempt powers of this state’s courts, such action could give rise to a fundamental issue of separation of powers.”). 150. 77 A. 145 (1910). 151. Id. at 154 (quoting THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 241 (7th ed. 1903)). 152. Id. Accord Creditor’s Serv. Corp. v. Cummings, 190 A. 2, 8 (R.I. 1937) (“The constitutional distribution of the powers of government is at once a grant of specific power to each department and a prohibition to the other two with reference to that same power.”). 153. Nugent v. City of East Providence, 238 A.2d 758, 762 (R.I. 1968); see also In re Advisory Opinion to the Governor (Appointment to Fill Vacancy In Office of Lieutenant Governor), 688 A.2d 288, 291 (R.I. 1997); Kass v. Ret. Bd. of the Employees’ Ret. Sys., 567 A.2d 358, 361 (R.I. 1989). 154. Kass, 567 A.2d at 361; Payne & Butler, 77 A. at 154. 155. 77 A. at 154 (emphasis added).

exercise all of the several powers of government.156 Although the court in Taylor was specifically concerned with the legislature’s continued exercise of judicial power, its strong implied prohibition rationale also logically and necessarily applied to the legislature’s continued exercise of executive powers. The court did not address that issue, however, until 1999.157 But rather than applying an “implied prohibition” rationale to prevent the general assembly’s exercise of executive power, the court applied an “implied authorization” rationale.158 This rationale permitted members of the legislature to continue to sit on, and appoint individuals to, agencies, commissions and boards administering and executing laws passed by the General Assembly, notwithstanding the explicit constitutional text distributing the powers of government, and installing the chief executive power in the governor.159 ABANDONING IMPLIED PROHIBITION FOR IMPLIED AUTHORIZATION

In re Advisory Opinion to the Governor (Rhode Island Ethics Commission - Separation of Powers)160 considered the authority of the state Ethics Commission to enact an ethics regulation that would have prohibited members of the legislative branch from sitting on, or appointing representatives to, all state executive, public and quasi-public boards, authorities, corporations, commissions, councils, or agencies, unless the entity either functioned solely in an advisory capacity to the legislature or exercised “solely legislative functions.”161 Four of the five justices concluded that the ethics commission’s constitutional authority to adopt a code of ethics under article III, section 8 did not provide it with the power to adopt such a regulation.162 The justices set

156. See Robert F. Williams, Rhode Island’s Distribution of Powers Question of the Century: Reverse Delegation and Implied Limits on Legislative Powers, 4 ROGER WILLIAMS U. L. REV. 159, 163-64 (1998) (“Focus on the meaning of ‘legislative power’ is still necessary even where broad, plenary state legislative power is recognized … [t]he legislative power is, itself, conceptually limited to the notion of ‘legislating.’”). 157. In re Advisory Opinion to the Governor (R.I. Ethics Comm’n – Separation of Powers), 732 A.2d 55 (R.I. 1999). 158. Id. at 71-72. 159. Id. 160. Id. at 55. 161. Id. at 57. 162. Id. at 65.

forth two basic reasons. First, the justices concluded article III, section 8 of the 1986 constitution, which mandated the creation of the Ethics Commission, did not authorize the Commission “to adopt a regulation that presumes and predetermines a priori, without evidence of violation and without providing a hearing,” that a legislator sitting on a board, or appointing someone to a board, was guilty of a conflict of interest, nor was such an arrangement inherently unethical.163 Secondly, the justices determined that the state constitution did not prohibit legislative participation on, or appointments to, “executive-type boards.”164 They determined that, as an historical matter, “legislative appointment of executive-type boards has been a long-standing practice in this state even under the first Constitution as early as 1844.”165 The court further noted that the practice had continued “well into the 20th century,” with the legislature exercising “substantial executive functions.”166 The court focused on three issues: the lack of a specific appointment clause on behalf of the chief executive similar to that contained in the federal constitution, the absence of a prohibition on dual office holding such as in Article I, section 6 of the Federal Constitution, and the 1986 constitutional convention’s readoption of the reserved powers clause.167 The justices concluded that they “discern no authority in our 1986 state constitution suggesting that any of its provisions were intended to remove from the General Assembly its long acknowledged authority and practice to appoint individuals from its membership to state governmental public boards, commissions, or agencies.”168 They construed the re-adoption of the reserved powers clause as a specific “reaffirmation of the [appointment] powers historically exercised by the Legislature under the prior constitution.”169 Absent from the justices’ advisory opinion, however, was any discussion of the distribution of powers under article III, section 1,

163. Id. at 66, 69. 164. Id. at 64. 165. Id. at 64-65. 166. Id. 167. Id. at 64-65, 71. 168. Id. at 71. 169. Id. at 63 (quoting Kass v. Ret. Bd. of the Employees’ Ret. Sys., 567 A.2d 358, 361 (R.I. 1989) (emphasis added)).

or the “implied prohibition” analysis that was so predominant in Taylor v. Place and which the court has resorted to continuously in order to constitutionally restrain the legislative exercise of judicial power. Instead of applying the implied prohibition rationale to likewise restrain the legislature’s exercise of executive power, the justices relied on past historical practice, notwithstanding its apparent conflict with the distribution of powers clause.170 The justices opined that “the sole and proper procedure for restricting legislators from serving on or appointing any other person to executive boards and commissions [was] through an amendment to the constitution approved by the electorate.”171 In fact, the advisory opinion encouraged a citizen movement leading precisely to that result. THE 2004 AMENDMENTS – PROHIBITING THE LEGISLATIVE EXERCISE OF EXECUTIVE POWER

The separation of powers constitutional amendments, proposed by the General Assembly and approved by 78% of the voters in November 2004, addressed and attacked the very basis for the 1999 advisory opinion’s conclusion.172 The opinion concluded that there was no constitutional impediment to legislators sitting on state entities administering and implementing the laws, or to the General Assembly or its members appointing the individuals who would exercise that authority.173 First, to emphasize a complete departure from “the powers historically exercised by the Legislature under the prior constitution,”174 including appointments to “executive type boards,” the reserved powers clause was eliminated.175 Whereas the retention of that clause in the 1986 constitution signified to the justices an assent to the powers historically exercised by the legislature, its repeal in 2004 signified an explicit rejection of the 170. Id. at 72. 171. Id. (internal quotations omitted). 172. S.J. Res. 180, 117th Gen. Assem., Reg. Sess. (R.I. 2003); Nat’l Conference of State Legislatures, 2004 Rhode Island Election Results (available online at www.ncls.org); Rhode Island 2004 Voter Handbook (available online at www.rilin.state.ri.us). 173. Id. 174. In re Advisory Opinion to the Governor (R.I. Ethics Comm’n – Separation of Powers), 732 A.2d 55, 63 (R.I. 1999). 175. R.I. CONST. art. VI, § 10.

historical exercise of those powers. In the absence of the reserved powers clause, which had been used to cloud the distribution of legislative and executive power seemingly mandated by the distribution of powers clause, that distribution of powers became endowed with a correspondingly greater meaning and purpose. Equally significant, the intended separation of legislative, executive, and judicial power was fortified by changing article V’s mandate that “[t]he powers of government shall be distributed into three departments,” to the substantially more specific mandate that those powers “shall be distributed into three separate and distinct departments.”176 The clear implication of this change is that the power vested in one department could not be exercised by the other departments vested with “separate and distinct” powers.177 The addition of the phrase “separate and distinct” underscored that, not only were the legislative, executive, and judicial powers to be distributed among three different branches, but that both the powers and the exercise of those distributed powers was to be separate and not shared. Together these two changes were an explicit pronouncement by the people that the legislature shall not exercise executive power, as clear and forceful as the pronouncement by the Rhode Island Supreme Court in Taylor v. Place that the legislature shall not exercise judicial power. The amendment of the distribution of powers clause178 and the repeal of the reserved powers clause179 addressed the distribution and separation of powers generally. The remaining two amendments, however, targeted a specific part of state government exercising increasing power and influence in governing, namely statutorily created administrative and regulatory entities. The growth of administrative and regulatory agencies at both the state and federal levels has been described as “massive,” with state agencies approaching their federal counterparts in both size and power.180 This expanding administrative state has occurred

176. Id. at art. V. 177. Id. 178. Id. 179. Id. at art. VI, § 10. 180. John Devlin, Towards a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 TEMP. L. REV. 1205, 1206 (1993).

in Rhode Island, with one study concluding that Rhode Island has 429 agencies, boards, and commissions; as many as seventy-three perform executive functions.181 The 2004 amendment to article III, section 6 specifically prohibits senators or representatives from being “appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of [Rhode Island].”182 More importantly, the amendment to article IX, section 5 shifted the power of appointment over entities exercising executive power, formerly exercised by the legislature, to the governor, who “shall, by and with the advice and consent of the senate, appoint . . . all members of any board commission or other state quasi-public entity which exercises executive power under the laws of this state.”183 The separation and distribution of powers in the 1842 constitution was arguably focused to a significant degree on halting the General Assembly’s exercise of judicial power, and to enhance the role of the judiciary.184 The separation and distribution of powers adopted by the people in 2004, however, was unarguably designed to halt the General Assembly’s exercise of executive power, and to enhance the role of the executive.185 Any analysis of a legislative attempt to control or exercise executive functions performed by administrative and regulatory entities such as the CRMC must be informed by, and responsive to, the historic mandate represented by the 2004 amendments. THE CRMC EXERCISES THE EXECUTIVE POWER OF GOVERNMENT

With respect to the applicability of the 2004 amendments to the CRMC, one must first determine whether the CRMC “exercises executive power under the laws of this state.”186 To determine whether it does, it is helpful to determine what constitutional powers it does not exercise. Because it does not exercise either judicial or legislative power in a constitutional

181. See Separation of Powers Reference Manual (available at www.commoncauseri.org). 182. R.I. CONST. art. III, § 6. 183. Id. at art. IX, § 5. 184. See generally Thomas R. Bender, For a More Vigorous State Constitutionalism, 10 ROGER WILLIAMS U. L. REV. 621, 650-63 (2005). 185. Id. 186. R.I. CONST. art. IX, § 5. See also R.I. CONST. art. III, § 6 (“exercising executive power under the laws of this state”).

sense, it therefore must exercise the only power left – the executive power. The Rhode Island Supreme Court has previously held that the CRMC, although it exercises quasi-judicial power, does not exercise constitutional judicial power.187 The administrative hearings of the CRMC “are not judicial in nature, for the ‘tribunal’ is totally lacking in power to enforce its purported decree.”188 A decision of the CRMC, after a hearing, is not enforceable by virtue of its own power.189 Instead, the CRMC must apply to a court of competent jurisdiction for enforcement of its determination.190 Because the CRMC’s authority is exercised “subject to judicial intervention at the appropriate juncture in the proceedings[,]” the court has held that “the CRMC does not exercise judicial power.”191 Neither does the CRMC exercise “legislative power” in a constitutional sense. Article VI, section 2 vests the legislative power of government “in two houses, the one to be called the senate, the other the house of representatives, and both together the general assembly [, and t]he concurrence of the two houses shall be necessary to the enactment of laws.”192 It is the enactment of laws that is the constitutional exercise of legislative power, and in American constitutional law, the bicameralism requirement serves as a restraint on the exercise of legislative power and an internal check within the legislative department itself.193 By dividing the legislative power between two distinct houses, and requiring the concurrence of both for the passage of law, bicameralism works to ensure that legislation is carefully and fully considered before it becomes law.194 The constitutional exercise of legislative power also has an

187. Sartor v. Coastal Res. Mgmt. Council, 542 A.2d 1077, 1081 (R.I. 1988). 188. Id. (citing Taylor v. Place, 4 R.I. 324, 336 (1856)). 189. Id. (citing R.I. GEN. LAWS § 46-23-7 (1996)). 190. Id. 191. Id. Compare Michigan Chiropractic Council v. Comm’n of the Office of Fin. Servs., 716 N.W.2d 561, 567 n.18 (Mich. 2006) (“[A]n administrative agency does not possess ‘judicial power’; rather, the authority of the administrative agency is derived from the statute that created it.”). 192. R.I. CONST. art. IX, § 14. 193. See Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 948-49 (1983). 194. Id. at 949.

additional requirement – presentment.195 Article IX, section 14 requires that bills, resolutions, and votes that have been passed by both houses of the General Assembly “shall be presented to the governor[,]” who has a qualified right to reject the proposed law.196 If the governor vetoes the proposed law, it may not become operative unless passed by a three-fifths vote in each house.197 The decision to provide the chief executive with a limited and qualified power to nullify proposed legislation by veto is based on the belief that the legislative power should be circumscribed even beyond the bicameralism requirement. This power provides the executive with an “effectual power of self defense” against legislative invasion of the rights of the executive,198 and protects against “oppressive, improvident, or ill-considered measures.”199 In sum, it serves as an executive check upon the legislative branch superimposed over the internal check created by the requirement of bicameralism. The United States Supreme Court has described the dual requirement of bicameralism and presentment as a “prescription for legislative action,” which represents a decision that legislative power “be exercised in accord with a single, finely wrought and exhaustively considered, procedure.”200 Since constitutional legislative power can only be exercised by the House of Representatives and the Senate, and only after complying with the requirements of bicameralism and presentment, the CRMC cannot exercise the legislative power authorized by the constitution. Consequently, because the CRMC does not, and cannot, exercise either judicial or legislative power in a constitutional sense, the only constitutional governmental power left for it to exercise is necessarily, therefore, the executive power.201

195. Id. at 946-47. 196. R.I. CONST. art. IX, § 14. 197. Id. 198. Chadha, 462 U.S. at 947 (quoting THE FEDERALIST No. 73 Alexander Hamilton (H. Lodge ed. 1888)). 199. Id. at 947-48. 200. Id. at 951. 201. See Galbraith v. Lenape Reg’l High Sch. Dist., 964 F. Supp. 889, 894 (D.N.J. 1997) (“Administrative agencies . . . are only empowered to exercise executive power in administering legislative authority selectively delegated to them by statute.”) (internal quotations omitted); Michigan Chiropractic Council v. Comm’n of the Office of Fin. Servs., 716 N.W.2d 561, 567 n.18

Executive power is the power “to execute the laws,” and “the power to administer and enforce laws as enacted by the legislature and as interpreted by courts.”202 By definition, administrative agencies administer and enforce the statutes pertinent to their mission and existence.203 In fact, the term “administrative” is synonymous with “executive.”204 The term “[c]onnotes of or pertains to administration, especially management, as by managing or conducting, directing, or superintending the execution, application or conduct of persons or things.”205 Indeed, administrative acts are “[t]hose which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body.”206 Administrative agencies therefore serve to “effectuate the obligation of the executive branch to see that the laws are faithfully executed.”207 Article VI, sections 1 and 2 of the Rhode Island Constitution forbid the General Assembly from delegating the constitutional power to enact legislation to agents or even a limited number of its (Mich. 2006) (“While administrative agencies often act in a quasi-judicial capacity, it is recognized that they are established to perform essentially executive functions.”) (internal quotations omitted); City of Hackensack v. Winner, 410 A.2d 1146, 1159 (N.J. 1980) (administrative agencies “are separately created and exercise executive power in administering legislative authority selectively delegated to them by statute”); State Dep’t of Taxes v. Tri-State Indus. Laundries, Inc., 415 A.2d 216, 218 (Vt. 1980) (same). 202. Jordan v. Smith, 669 So. 2d 752, 758 (Miss. 1996) (citing Alexander v. Allain, 441 So. 2d 1329, 1338 (Miss. 1983)); see West Virginia Citizens Group v. West Virginia Econ. Redev. Grant Comm., 580 S.E.2d 869, 877 (W. Va. 2003) (“Generally speaking, the Legislature enacts the law, the Governor and the various agencies of the executive implement the law, and the courts interpret the law, adjudicating individual disputes arising thereunder.”); see also McInnish v. Riley, 925 So. 2d 174, 179 (Ala. 2005) (“[T]he core power of the legislative branch is, therefore, the making of laws, while the core power of the executive branch is the enforcement of those laws.”) (internal quotations omitted) (emphasis removed); Salt Lake County Cottonwood Sanitary v. Sandry City, 879 P.2d 1379 (Utah Ct. App. 1994) (“Simply stated, legislative powers are policy making powers while executive powers are policy execution powers.”) (emphasis in original). 203. See Whitehouse v. Davis, 774 A.2d 816, 818 (R.I. 2001) (“[A]n administrative agency will be accorded great deference in interpreting a statute whose administration and enforcement have been entrusted to the agency.”) (internal quotations omitted). 204. McInnish v. Riley, 925 So. 2d 174, 185 (Ala. 2005). 205. Id. (quoting BLACK’S LAW DICTIONARY 45 (6th ed. 1990)) (emphasis added). 206. Id. 207. Galbraith, 964 F. Supp. at 894 (citing City of Hackensack, 410 A.2d 1146).

own members.208 The state constitution does permit, however, the General Assembly to “engage the expertise and assistance of administrative agents to effectuate” legislation it enacts.209 The General Assembly may thereby constitutionally confer a cabined decision-making authority upon an agency, commission, or council by enacting legislation that provides “standards or principles to confine and guide” the decision-making power.210 Decisionmaking authority exercised by administrative entities to effectuate legislation, whether in the form of rule-making or administrative adjudication, is an exercise of executive power and authority. In the context of administrative matters delegated to an agency by the legislature, it is presumed “that the Legislature intended for the agency to interpret legislative language, in a reasonable manner consistent with legislative intent, in order to develop the necessary policy to respond to unaddressed or unforeseen issues.”211 The United States Supreme Court has observed that “[i]nterpreting a law enacted by [the Legislature] to implement the legislative mandate is the very essence of the ‘execution’ of the law.”212 Additionally: an agency to which [the legislative branch] has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent [executive] administration’s views of wise policy to inform

208. Marran v. Baird, 635 A.2d 1174, 1179 (R.I. 1994). 209. Id. (citing Davis v. Woods, 427 A.2d 332, 335-36 (R.I. 1981)) (emphasis added). 210. Davis, 427 A.2d at 336. Cf. Whitman v. American Trucking Assoc., Inc., 531 U.S. 457, 472 (2001) (“Article I, §1, of the Constitution vests “[a]ll legislative Powers herein granted . . . in a Congress of the United States. This text permits no delegation of those powers … and so we repeatedly have said that when Congress confers decision-making authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.”) (internal quotations omitted) (emphasis in original); Chevron, U.S.A. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 (1984) (“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”) (internal quotations omitted). 211. City of Albuquerque v. New Mexico Pub. Regulation, 79 P.3d 297, 306 (N.M. 2003). 212. Bowsher v. Synar, 478 U.S. 714, 733 (1986).

its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests, which [the legislative branch] itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with administration of the statute in light of everyday realities.213 The Rhode Island Supreme Court has previously upheld the General Assembly’s delegation of authority to the CRMC, holding that the legislature sufficiently defined the policy underlying the creation of the CRMC: “to preserve, protect, develop and where possible, restore the coastal resources of the state for this and succeeding generations through comprehensive and coordinated long-range planning and management designed to produce the maximum benefit for society from such coastal resources.”214 The General Assembly cabined the CRMC’s decision-making authority, however, by mandating that its actions be guided by a “single overriding criteria.”215 Namely, the General Assembly required that “preservation and restoration of ecological systems shall be the primary guiding principle upon which environmental alteration of coastal resources will be measured, judged and regulated.”216 Consequently, when the CRMC develops plans in accordance with the legislatively declared policy of managing the coastal resources; when it enacts rules and regulations to implement and administer those plans; when it issues licenses, permits and easements; and when it investigates, holds hearings, and enforces those regulations by fines, orders, and administrative and judicial hearings, it is exercising executive power. In administering the provisions of chapter 23 of title 46 of the Rhode Island General Laws, the CRMC acts in an executive capacity. The CRMC’s lawexecuting actions, although sometimes resembling legislative or judicial action, are executive actions from a constitutional

213. City of Albuquerque, 79 P.3d at 306 (citing Chevron, 467 U.S. at 86566). 214. Milardo v. Coastal Res. Mgmt. Council, 434 A.2d 266, 271 (R.I. 1981) (citing R.I. GEN. LAWS § 46-23-1 (1980 Reenactment)). 215. Id. at 271 (quoting R.I. GEN. LAWS § 46-23-1 (1980 Reenactment)). 216. Id.

perspective.217 The CRMC is “always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review as well as the power of the [Legislature] to modify or revoke the authority entirely.”218 In sum, the constitutional and governmental power that administrative entities such as the CRMC exercise is executive. Administrative rule-making and adjudication are executive functions that are part and parcel of implementing and enforcing the laws enacted by the legislature and interpreted by the courts. This executive power is checked by the judiciary’s authority to ensure the agency’s actions conform to its statutory authority, as well as the power of the legislature to modify or withdraw the agency’s authority altogether by repealing or modifying the enabling statute.219 The CRMC is therefore a “board, commission or other state or quasi-public entity which exercises executive power under the laws of this state.”220 Legislators are barred from being members of the CRMC under article III, section 6, and the power of appointing its members belongs exclusively to the governor under article IX, section 5.221 NO COMBINED LEGISLATIVE AND EXECUTIVE POWER UNDER EITHER THE COMMON LAW PUBLIC TRUST DOCTRINE OR CLAUSE 1 OF SEC. 17

It seems reasonably clear that the CRMC “exercises executive power under the laws of this state,” as set forth in both article IX, section 5 and article III, section 6.222 Notwithstanding the executive nature of the CRMC’s functions, however, the House of Representatives’ reference to article I, section 17 suggests that it still believes it possesses the constitutional authority to appoint the CRMC’s members, or authorize members of the House of Representatives or Senate to sit on the CRMC themselves.223 During the 2006 legislative session, at a joint hearing of the 217. Immigration and Naturalization Serv. v. Chadha, 462 U.S. 919, 953 (1983). 218. Id.; see also Sartor v. Coastal Res. Mgmt. Council, 542 A.2d 1077, 1081 (R.I. 1988). 219. Chadha, 462 U.S. at 953 n.16. 220. R.I. CONST. art. III, § 6. 221. Id.; id. at art. IX, § 10. 222. Id. at art. IX, § 5; id. at art. III, § 6. 223. See Town of Westerly v. Bradley, 877 A.2d 601, 606-07 (R.I. 2005) (citing Town of Warren v. Thornton-Whitehouse, 740 A.2d 1255, 1259-60 (R.I. 1999)).

Senate Committee on Environment and Agriculture and the Committee on Government Oversight, one witness cited language from the post-2004 amendment decision in Town of Westerly v. Bradley.224 In Bradley, the Rhode Island Supreme Court wrote: “Under the public trust doctrine, the General Assembly is vested with the authority and responsibility for regulating and preserving tidal lands and may determine appropriate uses for tidal land, grant tidal land to another, or ‘delegate the authority to regulate that land on the state’s behalf.’”225 The Bradley decision stated that exclusive jurisdiction over the state’s tidal lands, purportedly belonging to the General Assembly, has been delegated to the CRMC.226 From this language, the witness apparently extrapolated that a single branch of state government, the General Assembly, has exclusive authority to govern with respect to public trust tidal lands.227 Accordingly, the CRMC performs a “legislative function.”228 The flaw fatal to the analysis, however, is that the common law public trust doctrine vests title to, and authority over, tidal lands in the State of Rhode Island, and not just the legislative branch of the state’s tripartite government.229 It is “the state [that] possesses broad power over tidal land,”230 not merely the General Assembly. The General Assembly may

224. Joint Hearing to Review the Functions and Responsibilities of the Rhode Island Coastal Resources Management Council, Before the S. Comm. on Env’t and Agric. and S. Comm. on Gov’t Oversight 33-34 (R.I. 2006) (statement of Robert Goldberg, citizen). 225. 877 A.2d at 606-07 (quoting Thorton-Whitehouse, 740 A.2d at 125960) (emphasis added). 226. Id. at 607. 227. Joint Hearing to Review the Functions and Responsibilities of the Rhode Island Coastal Resources Management Council, Before the S. Comm. on Env’t and Agric. and S. Comm. on Gov’t Oversight 33-34 (R.I. 2006) (statement of Robert Goldberg, citizen). 228. Id. 229. See, e.g., Bradley, 877 A.2d at 607 (“The state’s plenary authority over tidal lands is nevertheless restricted by art. I, sec. 17”); Champlin’s Realty Assoc. v. Tillson, 823 A.2d 1162, 1165-66 (R.I. 2003) (quoting Greater Providence Chamber of Commerce v. State, 657 A.2d 1038, 1041 (R.I. 1995)) (“The public trust doctrine dictates that the state holds title to all land below the high-water mark in a proprietary capacity for the benefit of the public. …The jus privatum relates to the state’s title to tidal lands.”); ThorntonWhitehouse, 740 A.2d at 1259 (“Under the public-trust doctrine, the state holds title to all land below the high water mark in a proprietary capacity for the benefit of the public. …The state’s authority over that land is limited by article I, sec. 17, of the Rhode Island Constitution.”) (all emphasis added). 230. Thornton-Whitehouse, 740 A.2d at 1259 (emphasis added).

enact legislation affecting tidal lands and has by statute created the CRMC and conferred to it authority over those tidal lands. These powers do not mean, however, that the state’s legislative branch has exclusive state authority over those lands. From the time of Lord Matthew Hale’s celebrated treatise, De Jure Maris,231 to the American Revolution, and up through today, the public trust doctrine has placed title to submerged lands in the sovereign,232 that is, the people of the state.233 As a single department of state government, the General Assembly only has as much authority over the state’s tidal lands as is conferred by the people through the device of the state constitution. That does not, however, include the executive power to administer laws concerned with such public trust lands. That power remains with the executive. The common law rule that the state, as the expression of the people’s sovereignty, holds title to tidal lands simply does not confer exclusive, or even legislative and executive, governmental power over those lands to the General Assembly. Moreover, the aspect of the public trust doctrine that places title to submerged lands in the state, the jus privatum, is not codified in the state constitution. Article I, section 17 does not vest title in the state to any lands, much less tidal lands.234 What it does codify is the jus publicum aspect of the doctrine, which holds that the state’s common law title is subject to certain rights of the public.235 The jus publicum aspect of the public trust doctrine codified in clause 1 of article I, section 17, not only does not confer executive governmental power on the legislature, but it limits the manner in which it may legislate.236 The General Assembly may not constitutionally enact legislation that impermissibly curtails “the rights of fishery, and the privileges of 231. Lord Hale, De Jure Maris, in A HISTORY OF THE FORESHORE AND THE LAW RELATING THERETO 370 (WM. W. Gaunt & Sons, Inc. 1993). 232. Michelle A. Ruberto & Kathleen A. Ryan, The Public Trust Doctrine and Legislative Regulation in Rhode Island: A Legal Framework Providing Greater Access to Coastal Resources in the Ocean State, 24 SUFFOLK U. L. REV. 353, 367-76 (1990). 233. In re Narragansett Indians, 40 A. 347, 367 (R.I. 1898) (“for when the Revolution took place, . . . the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their [own] common use” (quoting Martin v. Waddell, 41 U.S. 367, 410 (1842))). 234. R.I. CONST. art. I, § 17. 235. Id. at art. I. 236. Id. at art. I, § 17.

the shore.”237 Consequently, if article I, section 17 is to empower the General Assembly to exercise both legislative and executive power over tidal lands, then that authorization must be found in clause 3 of that provision. Clause 3 is, however, like clause 1, a limitation on the General Assembly’s legislative power rather than a grant of a consolidated legislative and executive power.238 It is in essence a constitutional environmental protection clause. NO COMBINED LEGISLATIVE AND EXECUTIVE POWER UNDER CLAUSE 3 OF SEC. 17

As set forth earlier, the third and final clause of section 17 declares that “it shall be the duty of the general assembly to provide for the conservation of the . . . [state’s] natural resources[,] and to adopt all means necessary and proper by law to protect the natural environment . . . by providing adequate resource planning for the control and regulation of [those] natural resources.”239 The request for an advisory opinion suggests that the House of Representatives believes this clause, contained in the “Declaration of Certain Constitutional Rights and Principles,” decapitates the fundamental distribution and separation of executive and legislative power effected by the 2004 amendments with respect to the environment. The request also intimates that the House of Representatives believes that the clause grants the General Assembly a constitutional mandate to exercise both legislative and executive powers over all environmental matters.240 The House request suggests that, notwithstanding article IX, section 5, the clause excludes the state’s chief executive officer from any constitutional role in appointing the membership of independent regulatory bodies that are responsible for environmental regulation - even when they exercise executive power.241 It further suggests that, notwithstanding article III, section 6, it permits members of the General Assembly to exercise executive power as members of those bodies, including the CRMC.242 237. Id. 238. Id. at art. I, § 17, cl. 3. 239. Id. 240. In re Advisory Opinion to the House of Representatives (CRMC), 911 A.2d 274, 75 (R.I. 2006). 241. Id. 242. Id.

To determine whether the state constitution can be interpreted in such an extraordinary way, the analysis must start with two basic propositions recognized long ago by the Rhode Island Supreme Court in Payne & Butler v. Providence Gas Company.243 First, unlike the Federal Constitution, the general object of the state constitution “is not to grant legislative power but to confine and restrain” its power which is otherwise plenary.244 Second, “[t]he leading feature of the [state] Constitution is the separation and distribution of the powers of government . . . and to define their limits.”245 The House of Representatives’ suggestion that neither of these principles applies to governmental regulation of the environment, and that the General Assembly has complete and unfettered control in that arena, cannot be supported by any reasoned analysis of the location and language of clause 3. As an initial matter, clause 3 appears in the state constitution’s “Declaration of Certain Constitutional Rights and Privileges,” the state analog of the Federal Constitution’s Bill of Rights.246 Like much of the Bill of Rights as applied through the Fourteenth Amendment, the rights declared in article I of the state constitution declare limits on the legislative power of the General Assembly.247 Article I would be an exceptionally awkward and inappropriate section of the state constitution to insert a clause granting an extraordinary combined legislative and executive authority, when all other parts of article I serve to limit governmental authority. Moreover, the language of clause 3 plainly contemplates that the duty imposed on the General Assembly applies only to its role of enacting legislation. By its terms, clause 3 directs the General Assembly “to adopt all means necessary and proper by law to protect the natural environment.”248 The Rhode Island Supreme 243. Payne & Butler v. Providence Gas Co., 77 A. 145 (R.I. 1910). 244. Id. at 154. 245. Id. (quoting THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 241 (7th ed. 1903)). 246. R.I. CONST. art. I; id. at art. I, § 17, cl. 3. 247. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 549 (1985) (“[T]he developed application . . . of the greater part of the Bill of Rights to the States limits the sovereign authority that States otherwise would possess to legislate with respect to their citizens and conduct their own affairs.”). 248. R.I. CONST. art. I, § 17, cl. 3 (emphasis added).

Court has consistently understood “adopt” to mean “create,” “develop,” and “enact,” and has found that adopt “is synonymous with ‘enact.’”249 Applying the plain meaning to clause 3 compels the conclusion that this clause imposes a duty on the General Assembly to enact legislation “necessary and proper by law to protect the environment.”250 To interpret the language as authorizing the General Assembly to move beyond enacting laws to executing and enforcing those same laws would stretch the language beyond all reasonable intendment, and would explode the structure of government contemplated by the 2004 amendments. The United States Supreme Court has rejected a similar argument made by Congress with respect to its authority over congressional elections set forth in article I, section 4 of the Federal Constitution.251 That section provides: “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”252 In Buckley v. Valeo, the Court considered the constitutional propriety of Congress’ appointment of individuals to serve on the Federal Elections Commission (FEC).253 The Court concluded that the federal Appointments Clause authorized only the President to make such appointments. The FEC argued that because it exercised executive and administrative authority and did not “operate[] merely in aid of congressional authority to legislate,”254 the case stood “on a different footing than if Congress had exercised its legislative authority in another field.”255 Rejecting the argument as both “novel and contrary to the language of the Appointments Clause,”256 the Supreme Court reasoned: Congress has plenary authority in all areas where it has

249. In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 8-9 (R.I. 1992). 250. R.I. CONST. art. I, § 17, cl. 3; Ethics Commission, 612 A.2d at 8-9. 251. See Buckley v. Valeo, 424 U.S. 1 (1975). 252. U. S. CONST. Art. I, § 4. 253. 424 U.S. 1. 254. Id. at 124-25, 138-39, 141. 255. Id. at 131. 256. Id. at 132.

substantive legislative jurisdiction . . . so long as exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers.257 That reasoning finds application here as well. There is no plausible reading of clause 3 that would remotely suggest the General Assembly has any constitutional authority to exercise anything but legislative power over environmental matters. Nor is it logical to except the exercise of governmental authority over environmental matters from the fundamental principle of the separation and distribution of powers clearly present in the 2004 amendments. That is particularly true with respect to the appointment power over any state entity that “exercises executive power under the laws of this state,” which the electorate specifically identified as a core executive function to be performed by the governor. Nor does the phrase “all means necessary and proper by law” confer any authority on the legislative branch to exercise constitutional executive power with respect to environmental matters, by controlling the appointment of the members of the CRMC in contravention of the governor’s appointment power. In rejecting a similar argument under the Necessary and Proper Clause in Buckley,258 the United States Supreme Court reasonably determined that: Congress could not, merely because it concluded that . . . a measure was “necessary and proper” to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in§ 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so.259

257. 258. 259.

Id. (emphasis added) (citation omitted). U.S. CONST. Art. I, § 8, cl. 18. 424 U.S. at 135 (emphasis omitted).

Similarly, the duty “to adopt all means necessary and proper by law to protect the natural environment” does not give the General Assembly the power to enact legislation that would permit it to appoint the members of an entity exercising executive and administrative authority, such as the CRMC.260 Nor can the General Assembly allow its members to be appointed to such an entity because it would be a direct violation of the 2004 amendments to article V, article IX, section 5, or article III, section 6.261 The interpretation of clause 3 suggested by the House of Representatives’ request for an advisory opinion would be wholly inconsistent with the predominant intent and feature of the 2004 amendments, namely to distribute and separate the executive and legislative powers with respect to administrative entities. Principles of constitutional interpretation require those who would construe the constitution to “look to the history of the times and examine the state of affairs as they existed when the constitution was framed and adopted.”262 Above all, any interpretation must “give effect to the intent of the framers.”263 The 2004 amendments were adopted with the specific design of prohibiting the legislature from continuing to exercise executive power.264 The amendments specifically declared that the appointment of the individuals to administrative entities exercising executive power was to be considered a core executive function belonging to the governor.265 As the basic structural design of state government,266 the distribution of powers between “separate and distinct” departments is the state constitution’s “fundamental principle.”267 The principle of separation of powers 260. R.I. CONST. art. I, § 17, cl. 3. 261. Id. 262. McKenna v. Williams, 874 A.2d 217, 243 n.19 (R.I. 2005) (Suttell, J., concurring in part and dissenting in part); accord In re Advisory Opinion to the Governor (R.I. Ethics Comm’n - Separation of Powers), 732 A.2d 55, 91 (R.I. 1999); City of Pawtucket v. Sundlun, 662 A.2d 40, 45 (R.I. 1995); In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 8 (R.I. 1992). 263. Sundlun, 662 A.2d at 45. 264. See generally Liz Anderson, General Assembly Unanimously Approves Separation of Powers, PROVIDENCE J., July 1, 2003, at A1. 265. Id. 266. See Ethics Commission, 612 A.2d at 18 (stating separation of powers is an “integral element of the republican form of government”). 267. In re Dorr, 3 R.I. 299, 305 (1854).

must necessarily permeate all parts of the constitution, including clause 3.268 If the 2004 amendments establish a clear separation of legislative and executive functions, it would be, in the words of Dorr, “unreasonable,” and unfathomable, to conclude that clause 3 permitted them to be “[re]united in one body.”269 A SELF-EXECUTING APPOINTMENT POWER

The final question posed by the House of Representatives in its request for an advisory opinion was a broader attack on the implementation of the 2004 amendments, and in particular, the governor’s new constitutional appointment power. The question concerned whether the new appointments clause is a selfexecuting constitutional provision, suggesting the governor was not immediately vested with the appointment power when the appointments clause was added to the state constitution.270 If that interpretation is true, then the governor would not have the constitutional power to appoint the members of the state entities executing executive powers until the General Assembly decides to authorize that power with regard to a particular entity, and enacts legislation doing so. The determinative question is whether this construction can reasonably be seen to reflect the underlying intent of the appointments clause. “The will of the people is paramount in determining whether a constitutional provision is self-operating[,] and the modern doctrine favors the presumption that constitutional provisions are intended to be self-operating.”271 The reason for this rule is self

268. See Opinion to the House of Representatives, 208 A.2d 126, 127 (R.I. 1965) (interpreting advisory opinion power in light of constitutional separation of powers); see also Opinion to the Governor, 191 A.2d 611, 613 (R.I. 1963) (expressing “reluctance to subvert the principle of separation of powers” in construing advisory opinion power). 269. Dorr, 3 R.I. at 304-05. 270. In re Advisory Opinion to the House of Representatives (CRMC), 911 A.2d 274, 75 (R.I. 2006). 271. Gray v. Bryant, 125 So. 2d 846, 851 (Fla. 1960); see also Morgan v. Bd. of Sup’rs, 192 P.2d 236, 241 (Ariz. 1948) (“The general presumption of the law is that all constitutional provisions are self-executing, and are to be interpreted as such, rather than requiring further legislation.”); Davidson v. Sandstrom, 83 P.3d 648, 658 (Colo. 2004) (en banc) (“Constitutional provisions are presumed to be self-executing.”); Russell v. Bliss, 101 N.E.2d 289, 291 (Ohio 1951) (“[T]he presumption now is that all provisions of the constitution are self-executing.”); Beatty v. Wittekamp, 172 S.E. 122, 125 (S.C. 1933) (“The general presumption of the law is that all constitutional

evident: “in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.”272 The question ultimately is one of the intent of the framers, in this case the electorate. The fundamental object is to construe the amendment “in such manner as to fulfill the intent of the people, never to defeat it.”273 The state constitution’s new appointments clause “must never be construed in such a manner as to make it possible for the will of the people to be frustrated or denied.”274 When it appears that a constitutional provision may take immediate effect without further action by the legislature, the provision is deemed self-executing even though further legislation may clarify or facilitate the execution of the provision.275 A constitutional provision need only lay down a sufficient rule governing the exercise of the power.276 If a sufficient rule exists, “it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provisions.”277 Constitutional theory holds a presumption in favor of selfexecuting constitutional provisions; where there is a choice, such a construction avoids the possibility of legislative frustration of the people’s will.278 In Rhode Island, the people invested the governor with a very specific power and responsibility: “[t]he governor shall, . . . appoint . . . all members of any board, commission or other state or quasipublic entity which exercises executive power under the laws of this state.”279 There are only two limitations on that power apparent from the text of the appointments clause. The first limitation is that the appointment must be confirmed by the Senate, an action that does not require legislation to

provisions are self-executing.”). 272. Gray, 125 So. 2d at 851; see also Morgan, 192 P.2d at 241 (constitutional provisions are presumed self-executing “for the reason that, unless such were done, it would be in the power of the Legislature to practically nullify a fundamental of legislation”). 273. Gray, 125 So. 2d at 852. 274. Id. 275. Davidson, 83 P.3d at 658. 276. Davis v. Burke, 179 U.S. 399, 403 (1900). 277. Id.; see also Gray, 125 So. 2d at 852. 278. Gray, 125 So. 2d at 852. 279. R.I. CONST. art. IX, § 5.

implement.280 The governor simply nominates an individual and sends the nomination to the Senate.281 The Senate has the duty to consider the nomination and confirm or reject.282 The second limitation is that the appointment may only be exercised with respect to entities that exercise executive power, which means it does not apply to a legislative commission. The sole function of a legislative commission is to assist the General Assembly in the enactment of legislation by performing investigative functions, gathering and reporting information to the legislative body, and making recommendations on the type of legislation that should be enacted.283 Any entity that has the power to actually implement, execute, administer, and enforce previously enacted statutes, however, falls within the governor’s appointment power.284 The descriptive phrase, “exercising executive power under the laws of this state” is a constitutionally sufficient principle guiding the exercise of the power.285 This principle, taken together with the presumption in favor of self-executing provisions, compels the conclusion that article IX, section 5 is indeed self-executing.286 In the case of most, if not all, of the boards and commissions exercising executive, administrative, and enforcement functions, there are enabling statutes setting forth the number of persons that shall comprise the board or commission. The governor has the power to fill the boards and commissions so that they are manned in conformance with article IX, section 5 and so that they may constitutionally resume their statutory duties.287 To the extent that the General Assembly determines to enact a statute that governs, limits, guides, or restricts the governor in exercising the power of appointment, it may, subject to judicial review, do so.288 But such legislation is not necessary for the appointive power to be exercised. The will of the people, that the governor appoint the members of administrative and regulatory entities administering and enforcing the law, need not constitutionally be

280. 281. 282. 283. 284. 285. 286. 287. 288.

Id. See id. Id. See Buckley v. Valeo, 424 U.S. 1, 137-38 (1975). See id. R.I. CONST. art. IX, § 5. Id. See id. See, e.g., E. Grossman & Sons v. Rocha, 373 A.2d 496, 501 (R.I. 1977).

delayed by the deliberations of the General Assembly.289 CONCLUSION

Although the powers of government are often referred to as the “legislative power,” the “executive power,” or the “judicial power,” each branch of government, and the individuals that have the privilege of occupying positions in that branch, actually enjoy a borrowed power - a power belonging to the state’s citizens as the original sovereign. Those citizens have divided the powers of government and conferred a portion of their sovereign power into the three branches. “[E]ach branch, in its own way, is the people’s

289. If article IX, section 5 is not self-executing, a justiciable claim must arise at some point on behalf of the governor if the legislature continues to fail to enact the legislation necessary to implement that office’s power of appointment. See Columbia Falls Elementary Sch. Dist. No. 6 v. State, 109 P.3d 257, 265 (Mont. 2005) (Nelson, J., concurring). Any notion that a constitutionally granted power could be rendered ineffective by the legislature’s failure to enact legislation necessary for its exercise must be flatly rejected. Id. A non-self-executing constitutional mandate is, by its nature, enacted with the presumption that the legislature will act to implement the mandate. Id. Just as legislation that would defeat or restrict a self-executing mandate of the constitution is beyond the power of the legislature, “a legislative failure to act upon a non-self-executing constitutional directive, which defeats or restricts the purpose of that mandate, is just as unacceptable as legislation which defeats or restricts the purpose of a self-executing right.” Id. at 266. Were that not so, the people’s mandate would be effectively frustrated. Art. VI, sec. 1 of the Rhode Island Constitution specifically declares that the “Constitution shall be the supreme law of the state,” that “any law inconsistent therewith shall be void” and that “[t]he general assembly shall pass all laws necessary to carry this Constitution into effect.” R.I. CONST. art. VI, § 1 (emphasis added). Where the people have adopted a constitutional provision requiring implementation by the legislature, “it cannot be gainsaid that the people had the right to expect, and do expect that branch of government to, in good faith, carry out its constitutionally imposed obligation to legislate.” Columbia Falls Elementary, 109 P.3d at 265. The state constitution is the mandate of a sovereign people to its servants and representatives. No one of them has a right to ignore or disregard its mandates, and the legislature, the executive officers, and the judiciary cannot lawfully act beyond its limitations. General Agric. Corp. v. Moore, 534 P.2d 859, 862-63 (Mont. 1975). Indeed no branch of government has, in default of its constitutional obligation to act, the power to, de facto, write out of the constitution important rights and guarantees which the people sought to secure unto themselves, believing when they did so that their elected officials would, in good faith, honor their command. Columbia Falls Elementary, 109 P.3d at 266.

agent, its fiduciary for certain purposes . . . [and] fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master’s other agents.”290 Any attempt to assert legislative control over appointments to the CRMC under either the public duty doctrine or clause 3 of article I, section 17 would be a breach of that fiduciary duty to the citizens who enacted the 2004 amendments. In his farewell address in 1796, George Washington articulated a principle for those privileged with public office to be guided by. “[T]he habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another.”291 This principle does not sufficiently animate the House of Representatives’ contemplated participation in and on the CRMC; and the legislation proposed in the 2006 session would violate the state constitution. In the final analysis, the issues discussed here are not about Democrat versus Republican, or even legislature versus governor, they are about implementing the people’s will with respect to the distribution and separation of powers as they have clearly, and forcefully, expressed it in the state constitution.

290. Edward H. Levi, Some Aspects of Separation of Powers, 76 COLUM. L. REV. 371, 385-86 (1976). 291. George Washington, Farewell Address (Sept. 17, 1796), in JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 213, 219 (Bureau of National Literature and Art 1909).

The Rhode Island General Assembly in the Defense of Civil Liberties Steven Brown*

I. INTRODUCTION

“This country has come to feel the same when Congress is in session as we do when the baby gets hold of the hammer. It’s just a question of how much damage he can do with it before you can take it away from him.”1 This Will Rogers barb may have been aimed at Congress, but many people would probably consider it just as applicable to the work of the Rhode Island General Assembly. Particularly for individuals and organizations concerned about the protection of civil rights and civil liberties, it is the federal courts, not state legislatures, that have often been considered the bulwark of protection for individual rights. In that regard, there is little question that the Rhode Island General Assembly has enacted more than its fair share of constitutionally questionable legislation requiring court intercession.2 Yet any historian of civil liberties knows that the view of the federal judiciary as a consistently aggressive guardian of individual rights does not hold up to much scrutiny.3 It has thus become important * Steven Brown is executive director of the Rhode Island Affiliate, American Civil Liberties Union (RIACLU). In the interest of full disclosure, it should be noted that RIACLU was involved in the key litigation and advocacy activities analyzed in the text. 1. BRYAN STERLING, THE BEST OF WILL ROGERS 33-34 (1979). 2. A cursory review of the RIACLU’s legal docket in the past thirty years turns up no fewer than twenty-five court decisions striking down Rhode Island statutes. See, e.g., RIACLU v. Begin, 431 F. Supp. 2d 227 (D.R.I. 2006) (finding unconstitutional various provisions of state campaign finance statute); Rhode Island Med. Soc’y v. Whitehouse, 66 F. Supp. 2d 288 (D.R.I. 1999) (striking down a law banning so-called “partial birth abortions”). 3. Almost thirty years ago, U.S. Supreme Court Justice William

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to look to the states – at both the judicial and legislative levels – for civil rights protections. To the benefit of the state’s residents, the Rhode Island General Assembly has, on a number of occasions, taken the lead in countering court decisions that were adverse to individual rights.4 This Article will first briefly examine two recent high-profile issues addressed by the General Assembly to show the positive role it can take in protecting civil liberties and civil rights. Though national in scope, these two issues – racial profiling and “homeland security” – have played out in important ways at the state level. On the issue of racial profiling, this Article examines both the outcome of a recent federal court case in Rhode Island that challenged “racial profiling” by local police and the General Assembly’s response to it. In the second instance, this Article describes how the General Assembly took an aggressive pro-active stance in response to gubernatorial “homeland security” legislation that had an enormous negative impact on the exercise of First Amendment freedoms. This examination attempts to demonstrate that the state legislature sometimes plays a role as important as the judiciary in safeguarding individual freedoms.

Brennan, Jr. issued a call for reinvigoration of enforcement of state constitutional guarantees, describing how “[u]nder the banner of the vague, undefined notions of equity, comity and federalism the [U.S. Supreme] Court has condoned both isolated and systematic violations of civil liberties.” William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 502 (1990) (citations omitted). 4. For example, Rhode Island was one of the first states to enact legislation responding to the U.S. Supreme Court decision in Employment Division v. Smith, 494 U.S. 872 (1990), significantly reducing the protection of the First Amendment’s Free Exercise Clause. See R.I. GEN. LAWS § 42-80.11 et seq., the “Religious Freedom Restoration Act.” The General Assembly strengthened the state’s protections for people with disabilities in the Fair Employment Practices Act (FEPA), R.I. GEN. LAWS § 28-5-6(4) (2003), after the U.S. Supreme Court held, in Sutton v. United Airlines, 527 U.S. 471 (1999), that the federal law on which FEPA was based did not protect people whose disabilities could be controlled with mitigating measures. 2000 R.I. Pub. Laws 2479. Rhode Island remains in the distinct minority of states to enact legislation prohibiting discrimination in employment on the basis of sexual orientation or “gender identity or expression.” R.I. GEN. LAWS § 28-5-5 (2003). Of course, the General Assembly’s record in regards to antidiscrimination protection is not spotless. See, e.g., Melendez v. Town of North Smithfield, No. 03-372 (D.R.I. 2003) (challenging, inter alia, P.L. 2003, Chapter 276, allowing the Town of North Smithfield to acquire (an all-white, all-male) private fire and rescue service and exempting the acquisition from any challenge under FEPA).

II. RACIAL PROFILING

The belief that our criminal justice system is color-blind is cherished in our society, but it is a belief difficult to reconcile with the facts. Rather, from arrest to prosecution to conviction to sentencing, the presence of race (and class) discrimination in the criminal justice system is difficult to ignore.5 For a variety of reasons, the inequitable enforcement, prosecution and implementation of the criminal laws remains a troubling reminder of the difficulties faced by racial minorities in seeking to use the courts to vindicate their right to be free from discriminatory law enforcement practices.6 At the front end of the criminal justice system, for example, the U.S. Supreme Court has upheld the use of “pretext stops” by police, which has a significant impact on the problem of racial profiling.7 The Court’s notions of how a “reasonable person” should be able to “just say no” to police in the context of “consent” searches sometimes seem to border on the surreal, and give enormous discretion to police to engage in dragnet searches that can have a racially discriminatory impact.8 To top it off, the Court has set a very high burden for defendants to meet to be entitled to discovery on a claim that they have been singled out for prosecution on the basis of race.9 At the back end of the criminal justice system, studies documenting the discriminatory impact of various sentencing policies and practices are legion. For example, despite significant 5. For an excellent examination of the disturbing and prevalent role of race throughout the criminal justice system, see DAVID COLE, NO EQUAL JUSTICE (1999). 6. For example, the U.S. Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment applies only to intentional discrimination, not to laws or actions that have a disparate impact on the basis of race. See McCleskey v. Kemp, 481 U.S. 279 (1987); Washington v. Davis, 426 U.S. 229 (1976). Among the many other judicially-created barriers are broad limits on plaintiff standing to enjoin questionable police practices and the judicially-created doctrine of “qualified immunity” that has been expansively interpreted in the law enforcement context to protect from damages actions “all but the plainly incompetent or those who knowingly violate the law.” See Malley v. Briggs, 475 U.S. 335, 341 (1986); City of Los Angeles v. Lyons, 461 U.S. 95 (1983). 7. Whren v. United States, 517 U.S. 806 (1996). See also COLE, supra note 5, at 34-41. 8. See, e.g., Florida v. Bostick, 501 U.S. 429 (1991). 9. United States v. Armstrong, 517 U.S. 456 (1990).

statistical evidence of the racially discriminatory administration of capital punishment, the U.S. Supreme Court has refused to find the racially charged evidence sufficient to invalidate a defendant’s death sentence.10 Additionally, the federal penalty scheme markedly differentiates between crack and powder cocaine to the detriment of racial minorities, and has been the subject of enormous commentary and criticism.11 The U.S. Supreme Court has indirectly acknowledged the discriminatory impact,12 but legal challenges to the sentencing disparity have been uniformly unsuccessful.13 Indeed, even after the U.S. Supreme Court eliminated the mandatory nature of the Sentencing Commission Guidelines that housed the discriminatory crack and powder cocaine disparity,14 judges, including those in the federal court in Rhode Island, found themselves stymied in trying to reduce the racial injustice inherent in those sentencing standards.15 Even favorable court rulings can amount to promises

10. McCleskey, 481 U.S. 279. 11. The statutory situation was summarized as follows in a recent decision by Judge Smith: The central pillars of the 1986 [Anti-Drug Abuse] Act are its schedule of mandatory minimum sentences for weight-based possession with intent to distribute, and the upward ratchet for recidivist offenders. Mandatory minimums under the statute begin at 5 and 10 years, respectively, depending on drug quantity, double for a second offense, and, in certain cases, mandate life imprisonment for a third. See 28 U.S.C. § 841(b)(1)(A)-(B). The quantity-based penalty scheme under the statute employs a 100:1 ratio for cocaine base to powder cocaine, which means that the amount of powder cocaine necessary to trigger the statutory mandatory minimum is 100 times the amount of cocaine base necessary to trigger the same minimum sentence. Thus, it takes 500 grams or more of powder cocaine to trigger a 5-year mandatory minimum penalty whereas only 5 grams of cocaine base triggers the 5-year minimum; it takes 5,000 grams (5 kilograms) of powder cocaine to trigger a 10-year mandatory minimum penalty under the statute, whereas 50 grams or more of cocaine base will trigger this same penalty. United States v. Perry, 389 F. Supp. 2d 278, 289 (D.R.I. 2005). 12. In United States v. Armstrong, the Court cited the fact that “more than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black.” Ironically, the reference appears in a court decision that made it more difficult for defendants to mount challenges to allegedly racially discriminatory charging decisions. 517 U.S. 456, 469 (1996). 13. See, e.g., United States v. Singleterry, 29 F.3d 733 (1st Cir. 1994). 14. Booker v. United States, 543 U.S. 220 (2005). 15. United States v. Pho, 433 F.3d 53 (1st Cir. 2006).

unfulfilled. In 1986, the U.S. Supreme Court overruled a nineteenyear-old precedent to ease the evidentiary burden on defendants seeking to challenge a prosecutor’s use of peremptory challenges to exclude individuals from petit juries on the basis of their race.16 However, under the three-tier burden-shifting scheme adopted by the Court, prosecutors can rebut a defendant’s prima facie case and force the defendant to prove purposeful discrimination, merely by offering a race-neutral explanation for a juror strike that need not be “persuasive, or even plausible.”17 It is therefore worth examining how one particular wellknown racial justice issue has played out in the courtrooms and in the halls of the General Assembly in Rhode Island. That issue is the practice of “racial profiling” on the state’s roads and 16. Batson v. Kentucky, 476 U.S. 79 (1986). 17. See Purkett v. Elem, 514 U.S. 765, 767-768 (1995): Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (citations omitted). That the Batson standard can be rather toothless is perhaps best exemplified by a Fifth Circuit case in which the government used six of its peremptory challenges to strike Mexican-Americans from the jury of a Latino defendant facing drug charges. See United States v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989). The prosecutor’s explanation for dismissing one of the jurors was that he had “a P rule. I never accept anyone whose occupation begins with a P. He is a pipeline operator.” Id. at 837. The appellate court remanded the case because the district court failed to make any findings of race-neutrality under Batson’s second step. At an evidentiary hearing on remand, the prosecutor repeated his adherence to the “P” rule, but added for the first time that he also rejected that particular juror because the prosecutor “had been informed that the use of marihuana by pipeline operators was somewhat prevalent.” United States v. Romero-Reyna, 889 F.2d 559, 561 (5th Cir. 1989). As the appellate court noted, the district court rejected the “P” rule explanation, pointing out that the prosecutor had accepted three Anglos whose occupations began with the letter “P.” Nonetheless, the district court found that the revised explanation passed muster under Batson, and the appellate court then upheld the revised finding. Id.

highways.18 Concerns about inappropriate stops and searches of blacks and Hispanics, in particular, go back more than a decade and are generally traced to increased efforts at drug interdiction by police.19 In Rhode Island, when State Police created a drug interdiction squad in 1990, records showed that of the first 28 people arrested, 22 of them were Hispanic.20 When the State Police voluntarily collected data about traffic stops in 1999, the statistics showed that 26% of motorists stopped during a threemonth period were non-white, even though they made up only 8% of the state’s population.21 Not surprisingly, police officials vigorously rejected the implications of the statistics.22 However, in 2000, in light of both the troubling nature of those statistics and the tragic death of Cornel Young, Jr., an offduty African-American Providence police officer shot to death by a fellow officer,23 the General Assembly passed a groundbreaking law requiring all police departments in the state to collect detailed traffic stop statistical data for two years.24 The statute further 18. State law defines racial profiling as the detention, interdiction or other disparate treatment of an individual on the basis, in whole or in part, of the racial or ethnic status of such individual, except when such status is used in combination with other identifying factors seeking to apprehend a specific suspect whose racial or ethnic status is part of the description of the suspect, which description is timely and reliable. R.I. GEN. LAWS § 31-21.2-3. 19. The government’s use of “drug courier profiles” has been particularly prominent in promoting racial discrimination. According to author David Cole, “a Lexis review of all federal court decisions from January 1, 1990, to August 2, 1995, in which drug-courier profiles were used and the race of the suspect was discernible revealed that of sixty-three such cases, all but three suspects were minorities: thirty-four were black, twenty-five were Hispanic, one was Asian, and three were white.” See COLE, supra note 5, at 50; see also United States v. Hooper, 935 F.2d 484, 499 (2d Cir. 1991) (Pratt, J., dissenting) (calling the drug courier profile “laughable, because it is so fluid that it can be used to justify designating anyone a potential drug courier if the DEA agents so choose”). 20. Dan Barry, Hispanic Arrests Irk ACLU, PROVIDENCE J., May 12, 1990. 21. Bruce Landis, State Police Records Support Charges of Bias in Traffic Stops, PROVIDENCE J., Sept. 5, 1999, at 1A. 22. Id. 23. The circumstances of the shooting are summarized in the court opinions addressing civil rights claims brought against the city by the decedent’s family. Young v. City of Providence, 301 F. Supp. 2d 163 (D.R.I. 2004), vacated, 404 F.3d 4 (1st Cir. 2005). 24. R.I. GEN. LAWS §§ 31-21.1-1 et seq. (The Racial Profiling Prevention

required the Attorney General to procure the services of an organization, company, person or other entity with sufficient expertise in the field of statistics to assist with . . . the design of the methodology for gathering statistics pursuant to this chapter, monitor compliance with the act throughout the study, and conduct a statistical analysis at the conclusion of the study to determine the extent to which racial profiling exists within the state.25 Northeastern University’s Institute on Race and Justice was the entity hired to perform this independent analysis. The results of the Institute’s study, released in 2003, provided clear evidence of widespread racial disparities in traffic stop practices across the state.26 The study showed that blacks and Hispanics were both disproportionately stopped and searched by police, but they were actually less likely than whites to be found with contraband, and that the disparities held true when other relevant variables were controlled.27 At the same time that this legislatively-mandated study was being conducted, a federal lawsuit alleging racial profiling was proceeding in Rhode Island.28 The lawsuit’s failure is a cautionary tale, for it exposes the difficulties faced by individuals seeking to use the legal system to redress incidents of racial profiling and highlights the need for other responses, such as legislative action, to address this critical issue. On September 24th, 2000,29 Bernard Flowers, a 50-year old African-American schoolteacher,30 was subjected to a “high risk”

Act of 2004). 25. R.I. GEN. LAWS § 31-21.1-4(f). 26. Dr. Amy Farrell, Dean Jack McDevitt, Shea Cronin and Erica Pierce, “Rhode Island Traffic Stops Statistics Act Final Report – Executive Summary,” Northeastern University Institute on Race and Justice, June 30, 2003, available at http://www.racialprofilinganalysis.neu.edu/IRJ_docs/ RIFinalReportExecSummary.pdf. 27. Id. 28. Flowers v. Fiore, 239 F. Supp. 2d 173 (D.R.I. 2003) (“Flowers I”); aff’d, 359 F.3d 24 (1st Cir. 2004) (“Flowers II”). 29. Both the district court and First Circuit opinions mistakenly cite the date of the incident as “September 24, 2001,” not 2000. The suit was actually filed May 15, 2001. See, e.g., Andrew Goldsmith, A Question of Race, PROVIDENCE J., May 16, 2001, at 1B. 30. Although an opinion concurring in the judgment in the First Circuit

or “felony” car stop by Westerly police.31 With three police weapons, including a shotgun, pointed directly at him, Flowers was directed by the lead officer at the scene to first “extend his arms out the window and then open the car door and exit the vehicle,” then to “turn around with his hands in the air and walk backwards towards the officers,” and “to kneel on the road beside his car and lace his fingers behind his head,” whereupon he was “handcuffed, frisked, and placed in the back of [an officer’s] cruiser.”32 This “traumatic event” where “any citizen would be understandably upset”33 was precipitated by a report to Westerly police at 11:55 AM that day from a town resident, Nuncio Gaccione, who said he had “got[ten] word that [a person he knew] was sending two colored people over here to start some trouble.”34 When police officer Darren Fiore arrived at Gaccione’s house about five minutes later, Gaccione “related that he received a call from Maurice O’Rourke, who stated that another individual, Michael Corbin, was sending two African-American men to Gaccione’s home with a gun. Gaccione said that he believed this was because his grandson, Jason Bolduc, ‘works with a guy that Corbin knows and they had some type of falling out.’”35 Following up on this “second-hand and somewhat disjointed” narrative,36 Gaccione told officer Fiore that “he had seen two African-American men in a small gray or black vehicle drive by his home about five minutes prior to Fiore’s arrival” and that “these men may have been the ones to whom O’Rourke referred.”37 A few minutes later, “Fiore alerted on his radio that police should be looking for a small gray or black vehicle with two black men, possibly armed. He further stated that he was ‘not too sure what it is’” and added (erroneously) that “they made threats over here at mentions that Flowers was of “middle age,” his exact age and occupation come from news reports, not the published opinions. Flowers II, 359 F.3d at 35. See also Goldsmith, supra note 29. 31. Flowers II, 359 F.3d at 27. 32. Id. 33. Flowers I, 239 F. Supp. 2d at 179. The plaintiff publicly summarized the stop as follows: “I saw what I called a firing squad . . . I could see the guns just pointed at me. ... If I were to move at any rate I would be shot. It was time for me to make peace for my death.” Goldsmith, supra note 29. 34. Flowers II, 359 F.3d at 26. 35. Id. 36. Id. at 35 (Boudin, C.J., concurring). 37. Id. at 26.

the Gaccione complex.”38 Fiore then took a post about half a mile from the residence, along Route 3, a major thoroughfare in Westerly. Approximately half an hour later,39 Flowers’ “small gray car” passed by, and Fiore decided to follow it.40 Although he noticed Flowers was alone in the car, Fiore later explained that he believed that the other suspect either could have been dropped off at another location or was hiding in the vehicle.41 He pulled Flowers over after approximately one mile.42 Back-up arrived, and the previouslydescribed “felony car stop” ensued. After a search of Flowers and the car turned up nothing criminal, Flowers was ordered back to his car and allowed to leave.43 Fiore described his “probable cause” for stopping the vehicle as being that “the description of the vehicle fit the description by Mr. Gaccione, there was a black male that was operating the vehicle . . . the close proximity of the time of the call and the fact that it was heading toward Mr. Gaccione’s residence.”44 Flowers filed a §198345 civil rights suit against Fiore, the two officers who assisted in the felony stop, and the Town of Westerly, alleging violations, inter alia, of his right to be free from unreasonable searches and seizures under the Fourth Amendment, and of his right to be free from racial discrimination under the Fourteenth Amendment’s Equal Protection Clause. The key issue in the case was whether the police had proper grounds to stop Flowers’ car. A police officer may, in appropriate circumstances, stop a person for the purpose of investigating possible criminal behavior even though there is no probable cause to arrest.46 The U.S. Supreme Court has held that to justify such a stop, known as a Terry stop, the officer must be able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”47 While 38. 39. 40. 41. 42. 43. 44. 45. 46. 47.

Id. Id. at 26, 33. Id. at 26-27. Id. at 27. Id. Id. at 27-28. Id. at 27. 42 U.S.C. §1983. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). Id. at 21.

reasonable suspicion is a less demanding standard than probable cause, the officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’” of criminal activity.48 In determining whether officers have a reasonable suspicion, courts examine the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.49 Whether a stop remains related in scope to the circumstances justifying the interference is judged by a standard of objective reasonableness. The court considers the circumstances as a whole, and balances the nature of the intrusion with the governmental interests that are served.50 Although, as discussed infra, the police appeared to have failed this test miserably in Flowers’ case, both the district court and the court of appeals found otherwise. The district court granted the defendants’ motion for summary judgment, finding that the officers “had ample reason to detain Flowers.”51 In explaining the “ample reason” for dismissing Flowers’ claim that he had been unlawfully stopped, the court stated: Gaccione reported receiving a threat that two black men with guns were coming to his home to cause trouble and, shortly thereafter, he told Fiore that two black men in a gray or black car had driven slowly by his home. A few minutes later, Fiore observed Flowers, a black man, driving toward Gaccione’s home in a car fitting the description provided by Gaccione and bearing license plates not issued to that vehicle. Consequently, it was reasonable for Fiore to believe that Flowers was one of the armed men coming to Gaccione’s home to cause trouble.52 Most striking about this recitation of the incident – which occurred in the context of the defendants’ summary judgment 48. Id. at 27. 49. United States v. Arvizu, 534 U.S. 266, 273 (2002), United States v. Golab, 325 F.3d 63, 66 (1st Cir. 2003). 50. United States v. Moore, 235 F.3d 700, 703 (1st Cir. 2000); United States v. Cruz, 156 F.3d 22, 26 (1st Cir. 1998), cert. denied, 119 S. Ct. 1781 (1999). 51. Flowers I, 239 F. Supp. 2d at 177. 52. Id.

motion, and so in a context where the facts were to be construed in the light most favorable to Flowers – is that it contains three factual errors, all of which undermine Fiore’s alleged “probable cause” for stopping the vehicle.53 First, Flowers was not observed by Fiore “a few minutes” after leaving Gaccione’s home – instead, the record, substantiated by police logs, indicated that approximately half an hour had elapsed.54 Second, although the district court relied on a statement by Fiore that he had observed Flowers “driving toward Gaccione’s home,”55 the evidence showed, and the appellate court acknowledged, that Flowers had already passed Gaccione’s residence along Route 3 when he was stopped.56 Finally, despite references to Fiore’s discovery of an apparent discrepancy between the license plate on Flowers’ car and the vehicle’s registration,57 Fiore conceded that the alleged discrepancy “never figured into his decision to follow and stop Flowers.”58 When stripped of these errors, the “probable cause” for the stop of Flowers amounted to the following: Fiore was looking for two black men in a “small gray or black vehicle,” and Flowers, a middle-aged African-American man, had the misfortune to drive along Route 3, alone, a half hour later in a gray car. Despite acknowledging the district court’s “apparent” factual errors and the need to “constru[e] the facts in a light most favorable to Flowers,”59 the First Circuit nonetheless upheld the lower court’s grant of summary judgment, finding that the police had engaged in a reasonable Terry stop under the circumstances. The court’s core reasoning was as follows: Equipped with a description confirmed by Gaccione’s firsthand observation, it was reasonable for Fiore to follow the first African-American male in a black or gray car he observed in the immediate area of the Gaccione 53. These “apparent” errors were acknowledged by the appeals court. See Flowers II, 359 F.3d at 33. 54. Id. at 26, 33. 55. Flowers I, 239 F. Supp. 2d at 177. 56. Flowers II, 359 F.3d at 33, 36 (Boudin, C.J.). 57. There was a factual dispute as to when Fiore discovered this “discrepancy,” but the appellate court ultimately deemed it irrelevant in light of Fiore’s concession that it was not a factor in his decision to stop Flowers. See Flowers II, 359 F.3d at 27 n.1. 58. Id. at 33. 59. Id.

residence. That as long as half an hour may have elapsed after he left the Gaccione residence (as opposed to twenty minutes) arguably attenuates the reasonableness of Fiore’s suspicion that Flowers was indeed the suspect. However, we do not believe that a matter of ten minutes disposes of suspicion altogether, especially when a car and driver substantially matching the given description eventually appear. That Fiore did not see a second African-American male in the car is adequately countered by Fiore’s explanation that he thought a second man either could have been dropped off or was hiding in the car. Against the immediacy and gravity of the reported threat, Fiore was justified in following through on his initial observation.60 Though calling it “a close case,” the court concluded “that the officers possessed sufficient and reasonable suspicion to stop Flowers.”61 In a brief opinion concurring in the judgment, Chief Judge Boudin examined the evidence supporting the court’s opinion and noted its weaknesses. He pointed out, inter alia, that the initial tip about the “two black men” was “second-hand and somewhat disjointed”; that “[g]ray cars are not uncommon; and the one stopped contained one black man – of middle age – rather than the two predicted, both of whom would likely have been younger if the story were true”; that “the car was stopped 20 to 30 minutes after the one allegedly driven by the house”; and that there was no “clear indication that the plaintiff was driving to the informant’s house at the time he was stopped.”62 Notwithstanding all these concerns, Chief Judge Boudin concluded that even if the Terry stop had been improper, the police were still protected by qualified immunity.63 The Flowers decision gave force to prescient comments made by Professor David Cole a year before Bernard Flowers was stopped at gunpoint by Westerly police: “The Supreme Court’s removal of meaningful Fourth Amendment review allows the police to rely on unparticularized discretion, unsubstantiated

60. 61. 62. 63.

Id. (emphasis added). Id. at 34. Id. at 35-36. Id. at 36.

hunches, and nonindividualized suspicion. Racial prejudice and stereotypes linking racial minorities to crime rush to fill the void.”64 The Flowers case acutely demonstrates the difficulties faced by alleged victims of racial profiling in obtaining judicial relief and, perhaps not coincidentally, helps explain why racial profiling remains such a prevalent problem in Rhode Island.65 The difficulties are perhaps best summed up by the First Circuit’s incredible claim that the car and driver “substantially match[ed] the given description.” If a generalized description of two black men driving in a gray or black car is sufficient to justify the stop and search of a gray car with one black male in it some thirty minutes later, Fourth Amendment protections would appear to mean very little.66 Indeed, calling this a “substantial match” shows how vulnerable racial minorities are to being stopped and searched. It is difficult to imagine similar police action if Flowers’ race and the race of the “two colored people” mentioned by the town resident were changed. If a person had been told that “two white males” were going to his house with a gun, and he then saw a “gray or black car” with two white men drive by his house, would police have relied on such an open-ended and virtually useless description to pull over the first gray or black car they saw that 64. COLE, supra note 5, at 53. 65. Dr. Amy Farrell & Dean Jack McDevitt, “Rhode Island Traffic Stops Statistics Data Collection Study 2004-2005 – Final Report,” Northeastern University Institute on Race and Justice, Apr. 2006, available at http://www.rijustice.state.ri.us/sac/Final%20Report%202004-2005.pdf. See also The Persistence of Racial Profiling in Rhode Island: A Nine-Month Review, Rhode Island Affiliate, American Civil Liberties Union, November 2005, available at http://www.riaclu.org/documents/Racialprofiling3rdqtr report.pdf. 66. The Appellant’s brief summed it up this way: At best, [an impermissible hunch] was all Officer Fiore had when he chose to stop Mr. Flowers’ car and subject him to the terror that inevitably accompanies a “high risk” stop. The description of the automobile was vague. The source of the complaint was questionable. Thirty minutes had passed since Fiore had taken his “post,” and nearly 50 minutes had passed since Gaccione had called the police. The first – and only – person that Fiore stopped was the first black man to drive by. As hunches go, this one was shamefully weak. It should not provide a basis for stopping an innocent man. Brief of Appellant at 24-25, Flowers v. Fiore, 359 F.3d 24 (1st Cir. 2004) (No. 03-1170, 03-1533).

had only one white occupant in it? Would a court have called the match “substantial”? Having fresh in its mind both the First Circuit’s decision in Flowers and Northeastern University’s documentation of racial disparities in traffic stops in Rhode Island from the data collected in 2001-2002,67 the General Assembly enacted “The Racial Profiling Prevention Act of 2004,” landmark legislation that took some important first steps to try to at least partially address a problem that the Flowers case illustrates may not always be fruitfully resolved by litigation. The 2004 statute explicitly banned racial profiling68 and authorized the award of damages, attorneys’ fees and other appropriate relief for its victims.69 It required the continued collection of traffic stops data by police departments for another year and obligated police agencies to “review the data on a regular basis in an effort to determine whether any racial disparities in the agency’s traffic stops enforcement exists, and to appropriately respond to any such disparities.”70 The law also directly addressed certain police procedures thought to have an impact on racial profiling. In the absence of reasonable suspicion or probable cause of criminal activity, the 2004 law barred police from engaging in so-called “consent” searches (i.e., requesting the driver’s permission to search)71 or from detaining a motor vehicle “beyond the time needed” to address the traffic violation prompting the stop.72 To encourage compliance with these restrictions, the statute further established an exclusionary rule, barring the judicial use of any evidence obtained in a search that violated these prohibitions.73 It is still too early to know the impact of the legislation on police practices, and no one would claim that its passage will, by itself, solve the problem of racial profiling. On the positive side, Northeastern University’s statistical analysis of the latest year’s worth of traffic stop data did show a reduction in the total number of searches conducted by police – perhaps due to the new statutory ban on consent searches – as well as a slight reduction in the

67. 68. 69. 70. 71. 72. 73.

Farrell et al, supra note 26. R.I. GEN. LAWS § 31-21.2-3 (2004). R.I. GEN. LAWS § 31-21.2-4 (2004). R.I. GEN. LAWS § 31-21.2-6(k) (2004). R.I. GEN. LAWS § 31-21.2-5(b) (2004). R.I. GEN. LAWS § 31-21.2-5(a) (2004). R.I. GEN. LAWS § 31-21.2-5(c) (2004).

racial disparity in police stops and searches.74 Nonetheless, the racial disparities in terms of both stops and searches remained quite significant and hardly cause for celebration.75 The latest study prompted the introduction of additional legislation in the 2006 General Assembly session to further address the problem.76 Litigation will still remain a necessary, if not sufficient, tool to address racial profiling.77 However, it is useful to contrast the outcome of Bernard Flowers’ case with the pro-active measures taken by the General Assembly, to show that the courts alone cannot be depended upon to protect racial minorities from the indignity, humiliation and terror that flow from a traffic stop generated by the color of the driver’s skin. Action by other branches of government is essential if this serious issue is to be addressed in a comprehensive manner. III. “HOMELAND SECURITY”

It is no secret that the criminal laws – at the federal, state and municipal level – are replete with silly, archaic and Rhode Island’s statutes are no antiquated prohibitions.78 exception. In establishing fines against individuals who “falsely assume or pretend to be a . . . corder of wood, or fence viewer,”79 74. Farrell & McDevitt, supra note 65. 75. As was true in the first study, racial minorities remained more than twice as likely as whites to be stopped and searched, though less likely to be found with contraband once searched. Id. 76. “An Act Relating to Motor Vehicles,” H 7590 (Feb. 16, 2006), available at http://www.rilin.state.ri.us/Billtext/BillText06/HouseText06/ H7590.pdf. Among other things, the bill would bar police from engaging in pretext stops. No action was taken on the bill. 77. See, e.g., http://www.aclu.org/racialjustice/racialprofiling/26363prs 20060803.html, announcing the filing of a detailed settlement agreement in a racial profiling suit against the Arizona Department of Public Safety. As this article suggests, even the Flowers case itself helped spur the legislature into taking action. 78. Indeed, there has been a mini-cottage industry in the writing of books about those laws. See, e.g., JEFF KOON, ANDY POWELL & WARD SCHUMAKER, YOU MAY NOT TIE AN ALLIGATOR TO A FIRE HYDRANT : 101 REAL DUMB LAWS, (2002); LANCE S. DAVIDSON, LUDICROUS LAWS AND MINDLESS MISDEMEANORS (1998); ROBERT WAYNE PELTON, LOONY LAWS: THAT YOU NEVER KNEW YOU WERE BREAKING (1990); SHERYL LINDSELL-ROBERTS, K.R. HOBBIE, TED LEVALLIANT AND MARCEL THEROUX, WACKY LAWS, WEIRD DECISIONS, AND STRANGE STATUTES (2004); LELAND H. GREGORY III, GREAT GOVERNMENT GOOFS: OVER 350 LOOPY LAWS, HILARIOUS SCREW-UPS AND ACTS-IDENTS OF CONGRESS (1997). 79. R.I. GEN. LAWS § 11-14-2 (2002).

who “erect, locate or run any windmill within twenty-five (25) rods of any traveled street or road,”80 or who “maliciously fire a musket [or] blunderbuss . . . within eighty (80) rods of any baiting place . . . actually used in the proper season for the baiting and netting of wild pigeons,”81 Rhode Island’s General Laws are filled with quaint prohibitions of other long-bygone eras. As amusing as these laws might seem, the consequences are potentially severe when slumbering criminal statutes are awakened especially when they can be used to infringe on fundamental freedoms, including First Amendment rights. The dangers are particularly heightened by the fact that prudential issues of standing can often bar the courts from considering constitutional challenges to such antiquated statutes until harm has befallen a hapless defendant.82 In 2004, Rhode Islanders witnessed firsthand the awakening of a few such slumbering statutes. That year, Governor Donald Carcieri proposed an 18-page “Act Relating to Homeland Security.”83 In a news release announcing its submission, the Governor described the draft legislation as “designed to strengthen Rhode Island’s homeland security by sanctioning the possession, manufacture, use or threatened use of chemical, biological, nuclear, or radiological weapons, as well as the intentional use or threatened use of industrial or commercial chemicals as weapons.”84 In fact, this wide-ranging bill had enormous ramifications for political protest, freedom of association, academic freedom and the public’s right to know. Taking its cue from the controversial USA PATRIOT Act, the proposed legislation broadly defined “terrorism,” which carried a sentence of life imprisonment, to cover any activity that (1) was intended to “intimidate or coerce a civilian population” or “influence the policy of a unit of government by intimidation or

80. R.I. GEN. LAWS § 11-22-5 (2002). 81. R.I. GEN. LAWS § 11-44-9 (2002). 82. For a thorough analysis of standing in the context of a preenforcement challenge to a statute on First Amendment grounds, see Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 29-33 (1st Cir. 1999). 83. A copy of the draft bill is available on-line at http://www.projo.com/news/pdf/securitybill.pdf. As a result of the storm of criticism that greeted the bill, it was never formally introduced into the General Assembly. 84. http://www.projo.com/news/pdf/20040212_legislativeagenda.pdf.

coercion”85 and (2) involved “a violent act” or “an act dangerous to human life” that violates the law.86 Political protest is, almost by definition, designed to “influence the policy of a unit of government,” and effective protests will often have the goal of trying to “intimidate” or “coerce” change in governmental policies. Under the legislation, the commission of “a violent act” in the context of a protest could turn the activity into a capital crime. The Governor’s bill did not define what constituted “a violent act,” but the rest of the proposed definition made clear that it did not have to be an act “dangerous to human life.”87 Thus, committing a misdemeanor assault, throwing a rock through a window or even engaging in certain non-physical activity could turn a political protester into a criminal facing life imprisonment.88 Of particular note here, was the Governor’s attempt to explicitly ban speech related to “terrorism.” He sought to do so by resurrecting two long-dormant World War I-era statutes aimed at criminalizing political dissent, and by expanding them to apply to his new definition of terrorism. One such statute was enacted in 1919 that made it a felony, punishable by ten years in prison, to, inter alia, “teach or advocate anarchy or the overthrow by force or violence of the government,” or to be “affiliated with any organization teaching and advocating disbelief in or opposition to organized government.”89 A companion statute referenced in the 85. The definition included a third alternative more in keeping with most people’s notion of terrorism: an act intended to “affect the conduct of a unit of government by murder, assassination, kidnapping or aircraft piracy.” 86. “An Act Relating to Homeland Security,” §1, at http://www.projo.com/news/pdf/securitybill.pdf. The USA Patriot Act’s similar definition of terrorism is codified at 18 U.S.C. §2331 (2001). 87. Id. 88. While defining violence as “unjust or unwarranted use of force,” Black’s Law Dictionary goes on to note that some courts “have held that violence in labor disputes is not limited to physical contact or injury, but may include picketing conducted with misleading signs, false statements, erroneous publicity, and veiled threats by words or acts.” BLACK’S LAW DICTIONARY 1564 (7th ed. 1999). 89. R.I. GEN. LAWS § 11-43-12 (2002), repealed by P.L. 2004, ch. 336, §5. The unamended statute read in full: § 11-43-12 Advocating anarchy or unlawful destruction of property. – Any person who shall willfully teach or advocate anarchy or the overthrow by force or violence of the government of the state of Rhode Island or of the United States, or of all forms of law, or opposition to organized government, or any person who shall

Governor’s legislation, and enacted in 1918, made it a felony to “willfully speak, utter, print, write or publish any language” intended to “incite, provoke or encourage” a “defiance or disregard of the constitution or laws of Rhode Island or of the United States.”90 The Governor’s legislation sought to expand both statutes by also making it a felony merely to teach or advocate “acts of terrorism” as defined by the bill.91 Thus, the college willfully become a member of or affiliated with any organization teaching and advocating disbelief in or opposition to organized government, or advocating or teaching the duty, necessity, or propriety of the unlawful assaulting or killing of any officer or officers, either of specific individuals or of officers generally of the government of the state of Rhode Island or of the United States, or of any organized government because of his, her, or their official character, or advocating or teaching the unlawful destruction of property, shall be guilty of a felony and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000), or imprisonment not exceeding ten (10) years, or both. 90. R.I. GEN. LAWS § 11-43-11 (2002), repealed by P.L. 2004, ch. 336, §5. The unamended statute read in full: § 11-43-11 Advocating forcible overthrow of government. – Any person who shall willfully speak, utter, print, write, or publish any language intended to incite, provoke, or encourage forceful resistance to the state of Rhode Island or to the United States of America, or a defiance or disregard of the constitution or laws of Rhode Island or of the United States, or shall advocate any change, alteration, or modification in the form of government of Rhode Island or of the United States except in the manner provided by the constitution or the laws of the state of Rhode Island or by the Constitution or the laws of the United States, or shall advocate any change in the form of government of the state of Rhode Island or of the United States by means of revolution or violence, or shall advocate the assassination of persons occupying public positions or offices created by the constitution and laws of the state of Rhode Island or of the United States, or shall advocate, incite, provoke, or encourage the destruction, burning, blowing up, or damaging of any public or private property as a part or incident of a program of force, violence, or revolution, having for its purpose the overthrow of the form of government of the state of Rhode Island or of the United States, or shall willfully publicly display any flag or emblem, except the flag of the United States, as symbolic or emblematic of the government of the United States or of a form of government proposed by its adherents or supporters as superior or preferable to the form of government of the United States as prescribed by the Constitution of the United States, shall be guilty of a felony and, upon conviction, be punished by a fine of not more than ten thousand dollars ($10,000), or imprisonment not exceeding ten (10) years, or both. 91. “An Act Relating to Homeland Security,” §§ 2 and 4, at http://www.projo.com/news/pdf/securitybill.pdf.

professor who enthusiastically assigned her students to read The Autobiography of Emma Goldman could have faced ten years in prison for that deed. Both statutes were archaic remnants of an era when a person could constitutionally be sent to jail for urging people to oppose the draft,92 and when the First Amendment had not yet even been deemed applicable to the states.93 But well before the Governor’s attempt to broaden the scope of these two statutes, their unconstitutionality had become patent. Recognizing the vital importance of free speech in a democratic society, the U.S. Supreme Court has held for decades that mere advocacy of illegal activity – even advocacy of violence – is entitled to the protection of the First Amendment. As the Court noted in the seminal case of Brandenburg v. Ohio, “the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”94 The Governor’s bill ignored this fundamental principle, and in doing so, severely undermined freedom of speech in the name of fighting terrorism, just as the original statutes did in the name of fighting anarchy.95 The proposal’s impact on academic freedom, political discourse and public debate generally was enormous. Fortunately, announcement of the Governor’s legislation met with immediate and uniform denunciation by academics, scholars and other professionals.96 In response, the Governor initially sought to explain away his expansion of the two statutes by noting that he 92. See, e.g., Schenck v. United States, 249 U.S. 47 (1919). 93. It was not until 1925, in dictum, that the Court “assumed” that freedom of speech was “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” Gitlow v. New York, 268 U.S. 652, 666 (1925). 94. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (emphasis added). 95. Other troubling provisions in the bill – severely undercutting the public’s right to know and significantly expanding the reach of the criminal laws when broadly-defined “terrorist” conduct at issue – were analyzed in a report prepared by the Rhode Island Affiliate, American Civil Liberties Union. The report is available on-line at http://www.riaclu.org/misc/2004hs_bill_analysis.pdf. 96. Tom Mooney, Carcieri’s Bill Shocks Constitutional Scholars, PROVIDENCE J., Feb. 19, 2004, available at http://www.projo.com/news/content /projo_20040219_firsta19.23dedc.html.

was simply building upon already-existing laws.97 At the same time, he acknowledged that he had not read his legislation in its entirety before announcing its introduction.98 Faced with a continued drumbeat of criticism, he quickly announced that he was withdrawing the proposal for re-working.99 Another version never saw the light of day. To its credit, the General Assembly was not content to let the issue die. Learning a lesson from the Governor’s revival of these repressive laws, the legislature took the offensive and passed a bill formally repealing the two statutes so they could never again be used.100 In the same bill, the General Assembly repealed more than a dozen other antiquated criminal statutes that had similarly troubling implications for the exercise of First Amendment freedoms.101 At a time of a continuing “war on terrorism” and a growing unpopular war in Iraq, it was hardly a stretch for legislators to believe that threatened enforcement of these archaic statutes – just as the Governor had threatened to enforce the two “advocacy of anarchy” statutes – could also take place. For example, the bill repealed statutes designed to “protect” the United States flag. One of those statutes had banned, inter alia, the public display of any flag “opposed to organized government or which may be derogatory to morals.”102 This statute was enacted in 1909, and last amended in 1914 but had been clearly unconstitutional since at least 1931, when the U.S. Supreme Court struck down a very similar law.103 Another “flag protection” statute, enacted in 1902, made it a

97. Jim Baron, Carcieri Backs Off Legislation, PAWTUCKET TIMES, Feb. 20, 2004, available at http://www.zwire.com/site/news.cfm?newsid=10998 298&BRD=1713&PAG=461&dept_id=24491&rfi=6. 98. Id. 99. Id. 100. 2004 R.I. Pub. Laws, ch. 336. 101. The sixteen criminal statutes that were the subject of the repeal bill had certain things in common. Many of the laws dated back to 1896 (the first codification of the Rhode Island General Laws), and the most recent of the statutes was enacted in 1919. It appears that none of these statutes had been enforced in modern history, and there were no reported court decisions interpreting or applying any of these statutes since 1896. See 2004 R.I. Pub. Laws ch. 336. 102. R.I. GEN. LAWS § 11-15-6 (2002), repealed by 2004 R.I. Pub. Laws ch. 336. 103. Stromberg v. California, 283 U.S. 359 (1931).

crime, with certain limited exceptions, to place “any word, figure, mark, picture, design, drawing or advertisement of any nature” upon any flag of the United States, to sell or give away any merchandise containing a representation of the U.S. flag in order “to advertise, call attention to, mark, or distinguish the article or substance on which so placed,” or to “cast contempt, either by words or act, upon any such flag.”104 These far-reaching prohibitions placed not just political protesters, but literally hundreds of vendors and advertisers in Rhode Island in violation of the law. In a series of rulings commencing in 1969, when the U.S. Supreme Court reversed the conviction of a man for speaking “contemptuous words about the American flag,”105 the Court had routinely struck down similar statutes, including congressional efforts in the 1980’s to ban flag desecration.106 Notwithstanding those rulings, overzealous prosecutors across the country have continued to charge political protesters with violations of “flag desecration” laws.107 Yet another of the repealed statutes made it a crime for any non-military personnel “to appear in public wearing the distinctive uniform, or any distinctive part of a uniform, of any branch of service,” but gave the secretary of state unfettered discretion to grant an exemption to “any reputable place of public amusement or entertainment” in order to allow “members performing in that place” to don such uniforms.108 The statute was first codified in 1896, and had not been amended since 1908. Fortunately for the state’s thriving artistic community (not to mention young Halloween trick-or-treaters), neither the ban nor the exemption had been enforced in modern times. Any attempt to enforce the statute would have been futile, as giving a state officer unbridled discretion to decide who could be exempt from the ban for “entertainment” purposes raised fundamental First 104. R.I. GEN. LAWS § 11-15-2 (2002), repealed by 2004 R.I. Pub. Laws, ch. 336. 105. Street v. New York, 394 U.S. 576 (1969). 106. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989); Smith v. Goguen, 415 U.S. 566 (1974); Spence v. Washington, 418 U.S. 405 (1974). 107. As recently as July, 2006, a protester in Iowa who planted an upside down flag in his front yard was charged with violating that state’s flag desecration statute. See http://www.commondreams.org/views06/071326.htm. 108. R.I. GEN. LAWS § 11-14-3 (2002).

Amendment problems.109 In fact, over thirty years previously, at the height of the Vietnam War, the U.S. Supreme Court struck down a similar federal ban’s exemption for actors to wear uniforms “if the portrayal does not tend to discredit that armed force.”110 If it had not been for the Governor’s misguided “homeland security” legislation, efforts by the General Assembly to repeal these laws might have seemed overly cautious, if not somewhat paranoid. Even without the Governor’s actions, however, it is worth emphasizing that the resurrection of archaic statutes by the government to target speech is not as rare as one might think. For example, in 2003, the environmental organization Greenpeace was indicted by the U.S. government for allegedly violating an 1872 law banning “sailor mongering,”111 and for engaging in conspiracy to violate that statute in violation of 18 U.S.C. §371. The indictment arose from an incident where some members of Greenpeace, several miles outside the Port of Miami, boarded the M/V APL Jade, a cargo vessel which was believed to be bringing illegally logged mahogany from Brazil into the United States. The Greenpeace members, once on board, intended to unfurl a banner which urged President Bush to stop illegal logging, but they were taken into custody before they could do so.112 The arrested individuals pled guilty or no contest and were sentenced to time served and required to pay fines ranging from

109. The general unconstitutionality of statutes providing unbridled discretion to government officials to decide whether to grant permits for speech activity has been clear since at least 1938. See Lovell v. Griffin, 303 U.S. 444 (1938). See also, e.g., Fratiello v. Mancuso, 653 F. Supp. 775, 789 (D.R.I. 1987). 110. Schacht v. United States, 398 U.S. 58 (1970). 111. 18 U.S.C. 2279 (2002). The law in pertinent part reads: Whoever, not being in the United States service, and not being duly authorized by law for the purpose, goes on board any vessel about to arrive at the place of her destination, before her actual arrival and before she has been completely moored, shall be fined under this title or imprisoned not more than six months, or both. Id. 112. United States v. Greenpeace, 314 F. Supp. 2d 1252 (S.D.Fla. 2004).

$100 to $500.113 Not content with this resolution, however, the Government obtained an indictment against Greenpeace itself. Although raising serious questions about the viability of the charges, a federal district court in Miami initially refused to dismiss the indictment against the environmental organization, but did grant Greenpeace’s request for a jury trial.114 In its opinion, the court began by noting that there were only two reported cases, both more than 100 years old, that cited the statute or its predecessor under which Greenpeace had been indicted.115 One of those cases discussed the statute’s purpose, which seemed far afield from the alleged actions of Greenpeace and its members: The evil which this section is intended to prevent and remedy is apparent, and in this district notorious. For instance, lawless persons, in the interest or employ of what may be called ‘sailor-mongers,’ get on board vessels bound for Portland as soon as they get in the Columbia river, and by the help of intoxicants, and the use of other means, often savoring of violence, get the crews ashore, and leave the vessel without help to manage or care for her. The sailor thereby loses the wages of the voyage, and is dependent on the boarding-house for the necessaries of life, where he is kept, until sold by his captors to an outgoing vessel, at an enormous price.116 In granting Greenpeace’s request for a jury trial, the court pointedly noted that the indictment was a “rare – and maybe unprecedented – prosecution of an advocacy organization for conduct having to do with the exposition of the organization’s message,” and highlighted the allegations made by others that the indictment was “politically motivated due to the organization’s criticism of President Bush’s environmental policies.”117 In a slightly less serious vein, but still worthy of note, was a 113. Id. 114. Id. 115. Id. at 1256 (citing United States v. Sullivan, 43 F. 602 (D. Or. 1890); United States v. Anderson, 24 F. Cas. 812 (S.D. N.Y. 1872)). 116. Greenpeace, 314 F. Supp. 2d at 1256-57 (quoting Sullivan, 43 F. at 604-05). 117. Id. at 1264. One month later, the Court did throw out the charges, pointing to vague language in the statute that it had referenced in its earlier opinion. See http://www.firstamendmentcenter.org/%5Cnews.aspx?id=13383.

recent criminal case from Michigan, dubbed the “case of the cussing canoeist,”118 that received a fair amount of national attention. The case involved Timothy Boomer, who in 1998 was charged with violating a 99-year-old Michigan statute when he “uttered a stream of profanities” after he fell out of his canoe on the Rifle River.119 The law at issue made it a misdemeanor to use “any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child.”120 It was not until 2002, three and a half years after Boomer’s initial conviction of the charge and only after two lower courts had upheld the constitutionality of the statute, that the Michigan Court of Appeals let the cussing canoeist off the hook by declaring the 1897 statute unconstitutional.121 As these examples show, a true danger exists when antiquated laws are allowed to remain on the books. Under wellrecognized rules of standing, a statute’s legality generally cannot be challenged until a person is either charged under the law or faces a credible threat of prosecution.122 Sometimes, as these cases demonstrate all too well, that will be too late. These situations present a classic opportunity for legislative, rather than judicial, action. The Rhode Island General Assembly took important steps in repealing statutes that were, at best, outdated, and at worst dangerous. It would do well to regularly review the General Laws and remove similar archaic statutes.

118. See, e.g., Associated Press, Cussing Canoeist’s Conviction Thrown Out Along With 105 Year Old Law, Apr. 2, 2002, available at http://www.freedomforum.org/templates/document.asp?documentID=15992. 119. People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002). 120. MICH. COMP. LAWS ANN. §750.337 (2006). 121. Boomer, 655 N.W.2d at 255. 122. See, e.g., Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 29-33 (1st Cir. 1999).

Notes & Comments Joint Tortfeasors, Full Compensation, and the 1,800 Degree Crucible: Rekindling Rhode Island’s Uniform Contribution Among Tortfeasors Act in the Aftermath of the Station Nightclub Fire It was an old wooden dance hall In a blue collar town And an old rock and roll band They burned the place down.1 The Station Nightclub fire marked the worst disaster in Rhode Island’s history since the hurricane of 1938.2 Recognized as the fourth deadliest fire in the nation’s history, the February 20, 2003 inferno killed one hundred people, and injured over two hundred.3 In response to this horrific tragedy, Rhode Island lawmakers scrambled to resolve a host of serious problems exposed by the blaze’s terrible wake. The forefront of the state’s concerns included embarrassingly antiquated fire safety regulations,4 a shamefully ineffective workers’ compensation 1. Audio recording: White Flash, by Garrison Keillor, performed live at the Bayfront Park Amphitheater in Miami, Florida (Mar. 1, 2003) available at http://prairiehome.publicradio.org/programs/20030301/flash.shtml. 2. Jennifer Levitz, Tracy Breton & Paul Edward Parker, First Lawsuits Filed in Fire, PROVIDENCE J., Mar. 5, 2003, at 1. 3. Franci Richardson, Station Blaze a Sad Anniversary: 100 Lost in Fire, BOSTON HERALD, Feb. 15, 2004, at 16. 4. Edward Fitzpatrick & Peter B. Lord, The State is Not Going to Like What it Sees, PROVIDENCE J., Mar. 2, 2003, at 1.

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compliance system,5 and “an almost unbearable financial burden on state and local emergency responders and governments.”6 Appropriately, the legislature ranked the massive financial costs imposed on the Station Fire victims and their families high on their agenda. One analyst has valued the potential liability at stake as approaching one billion dollars.7 To facilitate the settlement of the Station Fire civil actions, in June 2006, the Rhode Island General Assembly passed legislation amending Rhode Island’s Uniform Contribution Among Tortfeasors Act (“RIUCATA”).8 Named the “Station Fire Bill,” the law was modeled after legislation taking affect shortly after the Rhode Island banking crisis of 1991.9 Like the 1991 legislation, the 2006 amendments to RIUCATA were designed to encourage out-ofcourt settlements by denying non-settling joint tortfeasors the right to seek contribution from tortfeasors who settle with the plaintiff prior to trial.10 The settlement thereby “reduces the claim against the other tortfeasors in the amount of the consideration paid for the release.”11 The recent legislation, however, is limited only to catastrophic disasters resulting in twenty-five or more deaths.12 The 2006 amendments to RIUCATA have had a momentous effect on settlement releases brokered in mass tort claims involving multiple defendants. Yet, given the General Assembly’s recent treatment of RIUCATA, coupled with concerns raised by the Rhode Island Supreme Court regarding the statute’s wisdom, one is left wondering why Rhode Island continues to adhere to its traditional contribution scheme for joint tortfeasor claims that do not rise to the magnitude of loss specified by 2006 law. The 5. Lynn Arditi, Workers’ Comp Scofflaws Now Paying the Price, PROVIDENCE J., May 19, 2003, at 1. 6. Mark Arsenault, White House Rejects Appeal for Disaster Declaration, PROVIDENCE J., Apr. 24, 2003, at 1. 7. Neil Downing, Who Will Pay for this Huge Loss?, PROVIDENCE J., Feb. 25, 2003, at B14. 8. R.I. GEN. LAWS §§ 10-6-1 to 10-6-11 (1997) (amended 2006); see also Tracy Breton, Station Fire Settlement Bill Becomes Law, PROVIDENCE J., Jun. 30, 2006, at 1. 9. R.I. GEN. LAWS §§ 10-6-1 to 10-6-11. See also id. at § 42-116-40 (2006). 10. See, e.g., id. at § 10-6-8 (1997); H.R. 7109, 120th Gen. Assem., Reg. Sess. (R.I. 2006). See also R.I. GEN. LAWS § 42-116-40 (2006 Reenactment). 11. R.I. GEN. LAWS § 10-6-7 (1997). 12. Id. See also id. at § 10-6-8.

Station Fire Bill eliminates the settlement disincentives effectuated by RIUCATA. Accordingly, it is this author’s contention that the bill’s application should be extended to all litigants, and not merely those involved in mass disasters causing at least twenty-five deaths. Through adoption of a contribution regime friendlier to the facilitation of out-of-court settlements, several favorable policy goals are likely to be achieved: finality of litigation for settling defendants, conservation of judicial resources, and full compensation for those injured by the wrongful acts of others. In support of this perspective, Part I of this Comment describes the statutory framework of RIUCATA, and provides an overview of the Act’s most prominent features, as well as how these provisions have been construed and applied by Rhode Island’s courts. Part II explores the existing dichotomy between the Act’s purpose of creating a statutory right of contribution, and Rhode Island’s public policy of promoting out-of-court settlements. Part III briefly discusses legislation passed by the General Assembly in 1991 in response to the state banking crisis – laws which later inspired lawmakers to pass the Station Fire Bill. Part IV concludes with a discussion of the Station Fire disaster, the Station Fire Bill, and how the bill’s passage represents a move in the right direction towards a fairer, more sensible, contribution system for joint tortfeasors and plaintiffs alike. I. THE RHODE ISLAND UNIFORM CONTRIBUTION AMONG TORTFEASORS ACT

A. The Basics In Rhode Island, tort claims involving multiple defendants are governed by RIUCATA, which addresses matters concerning contribution among joint tortfeasors and settlement releases.13 Rhode Island also adheres to the common law maxim of joint and several liability.14 Pursuant to the doctrine, a plaintiff who suffers an indivisible injury by the acts or omissions of two or more defendants may recover 100% of her damages from any one

13. See R.I. GEN. LAWS §§ 10-6-1 to 10-6-11 (1997). See also RONALD J. RESMINI, RHODE ISLAND TORT LAW AND PERSONAL INJURY PRACTICE, § 681 (2d ed. 1999). 14. See Roberts-Robertson v. Lombardi, 598 A.2d 1380, 1381 (R.I. 1991).

defendant individually, irrespective of the particular defendant’s degree of culpability.15 In other words, a plaintiff is entitled to recover her full damage award from any one defendant, even if the defendant’s assigned liability is negligible. Contribution is an equitable remedy available to a joint tortfeasor who has paid more than his “fair share” of damages under the joint and several liability scheme. Historically, Rhode Island common law mandated the application of joint and several liability, but did not recognize the right of contribution among joint tortfeasors.16 This meant that a joint tortfeasor, having paid 100% of the plaintiff’s damage award, could not seek monetary contribution from his co-tortfeasors. One rationale advanced for denying contribution among joint tortfeasors was that “courts should not lend their aid to rascals in adjusting the differences among them.”17 In response to this perceived inequity, within the first half of the twentieth century the National Conference of Commissioners on Uniform State Laws drafted the Uniform Contribution Among Tortfeasors Act of 1939 (“Uniform Act”).18 Primarily, the model statute was intended “to abandon the common-law rule denying the right of contribution among tortfeasors.”19 Rhode Island adopted the model act, RIUCATA, without substantial modification, in 1940.20 Like the Uniform Act, RIUCATA establishes the right of contribution among joint tortfeasors.21 A joint tortfeasor’s right to contribution vests once he discharges the other tortfeasor’s liability, either by settlement with the plaintiff, or by satisfaction of a judgment entered against him.22 If, by satisfying the common liability, the paying joint tortfeasor remits more than his equitable

15. See id. 16. See Hackett v. Hyson, 48 A.2d 353, 354 (R.I. 1946). See also R. D. Hursh, Annotation, Contribution Between Negligent Tortfeasors at Common Law, 60 A.L.R.2d. 1366, 1368 (1958). 17. Hawkins v. Gadoury, 713 A.2d 799, 802 (R.I. 1999) (citations omitted). 18. See UNIF. CONTRIBUTION AMONG TORTFEASORS ACT, §§ 1 to 12 (amended 1955), 12 U.L.A. 185 (1939). 19. W.E. Shipley, Annotation, Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107, 1108 (1954). 20. 1940 R.I. Pub. Laws 1222. 21. R.I. GEN. LAWS § 10-6-3 (1997). 22. Id. at § 10-6-4.

share of damages, he can recover the difference from the other tortfeasors.23 RIUCATA also contemplates the mechanics of pre-trial settlements involving joint tortfeasors by allowing a plaintiff to recover his full damage award from a non-settling joint tortfeasor.24 Thus, if a plaintiff settles with one joint tortfeasor, his right to sue the second joint tortfeasor is not extinguished by the settlement unless the settlement release states otherwise.25 Any award entered against the non-settling tortfeasor, however, will be reduced by either the amount of the settlement received, or, the amount or proportion stipulated in the settlement, whichever is greater.26 This offset is intended to prevent a plaintiff from receiving a “double recovery,” and is generally referred to as the “pro rata” or “proportionate share” rule.27 Finally, a settlement release does not relieve the settling tortfeasor “from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person’s damages recoverable against all the other tortfeasors.”28 In other words, a joint tortfeasor’s settlement with the plaintiff does not shield him from the possibility of later being sued for contribution by a nonsettling defendant. Likewise, a joint tortfeasor does not forfeit his right to contribution by entering into a settlement release that discharges all of the defendants.29 As previously noted, Rhode Island’s contribution statute is modeled after the 1939 version of the Uniform Act. Subsequently, in 1955, the National Conference of Commissioners on Uniform State Laws revisited the Uniform Act, making several significant 23. Id. 24. Id. at § 10-6-6. 25. Id. at § 10-6-7. 26. Id. 27. Augustine v. Langlais, 402 A.2d 1187, 1189 (R.I. 1979) (The Rhode Island Supreme Court commented that Section 10-6-7 of RIUCATA is a “verbatim enactment” of Section Four of the Uniform Act; the model statute “predicated upon the fundamental doctrine that an injured person is entitled to only of satisfaction of the tort, even though two or more parties contributed to the loss.”). See also J.D. LEE & BARRY LINDAHL, MODERN TORT LAW, LIABILITY, AND LITIGATION, § 20:29 (2d ed. 2002). 28. R.I. GEN. LAWS § 10-6-8 (1997). 29. Id. at § 10-6-5.

changes to Section Four, the model act’s provisions governing settlement releases.30 First, the Commissioners inserted a “good faith” requirement in the provision’s preamble, indicating that the revised modifications of Section Four would apply only to those settlement releases executed in good faith.31 Next, the Uniform Act’s authors rejected the pro rata, or “proportionate share” reduction rule mandated by the 1939 version, noting that it was “one of the chief causes of complaint where the Act has been adopted.”32 The Commissioners substituted instead a “pro tanto” or “dollar for dollar” offset calculation.33 Thus, under the 1955 revised Uniform Act, a plaintiff’s judgment against a non-settling joint tortfeasor is simply reduced by the actual amount received from earlier-negotiated settlements. Lastly, the Commissioners explicitly stated in the 1955 revision that a settlement executed in good faith “discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”34 In transforming the Uniform Act’s partial-settlement provision, the Commissioners relied on two important observations. First, the Uniform Act’s authors commented that including a good faith precondition on all settlement releases involving joint tortfeasors would enable courts to take a hard look at settlement releases as way of addressing problems involving collusion, or, “Mary Carter”35 agreements between the plaintiff 30. See UNIF. CONTRIBUTION AMONG TORTFEASORS ACT, § 4 cmt. (amended 1955), 12 U.L.A. 264 (1939). Section Four of the 1955 revision of the model act states: When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death: (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is greater; and, (b) it discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. Id. at § 4. 31. Id. 32. Id. 33. Id. 34. Id. 35. See RESMINI, supra note 13, at § 704 (“A ‘Mary Carter’ agreement is a settlement device used in multi-party litigation. Under the typical Mary Carter agreement, the plaintiff releases his or her cause of action against a joint tortfeasor in return for his or her participation in the trial against

and the settling defendant.36 Second, the authors pointedly emphasized that the pro rata reduction rule’s effect “ha[d] been to discourage settlements in joint tort cases, by making it impossible for one tortfeasor alone to take a release and close the file.”37 Plaintiffs’ attorneys, in particular, severely criticized the 1939 Uniform Act as a barrier to settlement negotiations “because they [had] no way of knowing what they’re giving up.”38 At least under the vision of the 1955 revised Uniform Act, a plaintiff who settles with less than all of the defendants can proceed in the ongoing litigation knowing that any subsequent judgments rendered in his favor will be reduced by a definitive sum, rather than a fuzzy projection representing the settling defendant’s degree of culpability. Defendants also complained that the pro rata rule discouraged them from entertaining settlement negotiations, because, as the authors wisely noted, “[n]o defendant wants to settle when he remains open to contribution in an uncertain amount, to be determined on the basis of a judgment against another in a suit to which he will not be a party.”39 Unfortunately, despite the convincing reasons articulated by the Uniform Commission in adopting the pro tanto reduction rule, Rhode Island, for the most part, has not followed suit. B. Who is a Joint Tortfeasor? Exactly who qualifies as a joint-tortfeasor under RIUCATA is another tortfeasor. The plaintiff also promises to pay the settling tortfeasor a portion of the recovery received from the nonsettling tortfeasor. Although the Rhode Island Supreme Court has never considered the validity of the Mary Carter agreement, a number of courts void the agreement on the grounds that it violates public policy intent of both the Uniform Contribution Among Tortfeasors Act and the canon of legal ethics.”). 36. See UNIF. CONTRIBUTION AMONG TORTFEASORS ACT, § 4 cmt. (amended 1955), 12 U.L.A. 265 (1939). The Uniform Act’s authors commented that: [t]he idea underlying the 1939 provision was that the plaintiff should not be permitted to release one tortfeasor from his fair share of liability and mulct another instead, from motives of sympathy or spite, because it might be easier to collect from than from the other; and that the release from contribution affords too much opportunity for collusion between the plaintiff and the released tortfeasor against the one not released ... [i]f the plaintiff wishes to discriminate as to defendants, the 1939 provision does not prevent him from doing so. Id. 37. Id. 38. Id. 39. Id.

generally a fact-intensive inquiry of which the Rhode Island Supreme Court has had several opportunities to consider. RIUCATA defines “joint tortfeasors” as “two or more persons jointly or severally liable in tort for the same injury to person.”40 Rhode Island case law has further clarified this proposition and delineated the scope of the definition’s reach. In Wilson v. Krasnoff, the Rhode Island Supreme Court established a two-prong analysis for determining whether a defendant is in fact a joint tortfeasor within the meaning of Rhode Island’s contribution act: First, the parties must be “liable in tort.” The phrase “liable in tort” has been construed to mean to have negligently contributed to another’s injury. Second, the statute refers to the same injury. The same injury is caused by parties who engage in common wrongs. To constitute joint tortfeasors under the act, both parties must have engaged in common wrongs.41 Noting that prior federal court decisions interpreting RIUCATA did not look past the initial inquiry in determining whether two parties were joint tortfeasors (i.e., whether the defendant contributed to the plaintiff’s injury),42 the Wilson court’s motivation for imposing the second part of the analysis regarding “common wrongs” was likely influenced by the particular facts presented in the case. The plaintiff injured herself after sustaining a fall down a flight of stairs, which were allegedly in a state of disrepair.43 Following the accident, two doctors at Newport Hospital provided the plaintiff with medical care, one of whom recommended that the plaintiff undergo back surgery.44 The plaintiff later denied receiving any consultation regarding the prospective risks and benefits of back surgery, and allegedly only learned of the surgery about an hour before the operation was scheduled to begin.45 Five months following her initial admission, the plaintiff re40. R.I. GEN. LAWS § 10-6-2 (1970). 41. 560 A.2d 335, 339 (R.I. 1989). 42. Id. (citing Day v. J. Brendan Wynn, D.O., Inc., 702 F.2d 10, 12 (1st Cir. 1983); New Amsterdam Cas. Co. v. Holmes, 435 F.2d 1232, 1234 (1st Cir. 1970)). 43. See id. at 337. 44. Id. 45. Id.

injured her back and returned to Newport Hospital, again receiving care from one of the doctors she had treated with following her fall.46 She also subsequently sought treatment from a chronic back pain specialist, who eventually performed a second back surgery.47 The results were far from satisfactory, leaving the plaintiff confined to a wheelchair.48 The plaintiff sued the owner of the building where the initial injury occurred, and the three doctors involved in the surgical treatment of her back. Prior to trial, the plaintiff settled her claims against the four defendants for a lump sum, which was paid by the building owner’s insurance carrier.49 Apparently assuming that he had discharged the common liability, the building owner sought contribution against the three doctors.50 During the contribution action, the doctors disputed their joint tortfeasor status, and moved for a directed verdict.51 The Rhode Island Supreme Court affirmed the superior court’s issuance of the motion, agreeing that the building owner had “failed to establish a prima facie case [for] contribution.”52 Determining that the plaintiff alleged four distinct injuries over a period of one year, the court held that the building owner and three doctors were not joint tortfeasors as contemplated by RIUCATA because their conduct had not contributed to the “same injury.”53 Emphasizing the nature and timing of the plaintiff’s injuries – the fall down the stairs, the first surgery at Newport Hospital, the second injury requiring readmission, and the last surgery by the chronic back pain specialist – the court concluded that since neither the building owner nor the doctors had the opportunity to guard against each other’s negligence, they had not engaged in “common wrongs.”54 Hence, the court must consider two factors in determining whether two or more defendants contributed to a “common wrong,” thereby exposing the defendants to joint tortfeasor 46. Id. at 338. 47. Id. 48. Id. 49. Id. 50. Id.; see also R.I. GEN. LAWS § 10-6-4 (1997). 51. See Wilson, 560 A.2d. at 338. 52. Id. 53. Id. at 339-40. The court relied heavily upon Pennsylvania case law, particularly Lasprogata v. Qualls, 397 A.2d 803 (Pa. 1979). 54. Id. at 340.

liability. Specifically, the court must determine “the time at which each party failed to act and whether a party had the ability to guard against the negligence of another.”55 Since the building owner’s alleged misconduct occurred well before plaintiff’s surgeries, and, unlike the doctors, he alone had possession and control of the stairs upon which she was injured, the doctors could not guard against his tortious conduct.56 Along the same line of reasoning, the building owner could not prevent the alleged malpractice of the doctors following the plaintiff’s admission to the hospital.57 Additionally, the Rhode Island Supreme Court has extended joint tortfeasor status to reach defendants who otherwise enjoy statutory or common law immunity against civil liability. In one of the earliest published opinions discussing RIUCATA, the Rhode Island Supreme Court, in Zarrella v. Miller, held that a plaintiff’s husband, although immune from direct suit by the plaintiff herself by operation by the doctrine of interspousal immunity, nonetheless qualified as a joint tortfeasor subject to contribution.58 The plaintiff, a passenger in an automobile operated by her husband, was injured when their car collided with a vehicle driven by the defendant.59 The plaintiff sued the defendant, and the parties settled the matter.60 Later, the settling defendant sued the plaintiff’s husband for contribution, asserting that the husband was a joint tortfeasor.61 The husband protested the contribution action, contending that his interspousal immunity insulated him not only from a negligence suit initiated by his wife, but from contribution suits brought against him under RIUCATA as well.62 Concluding the term “liable in tort,” as expressed in the Uniform Act referred to a defendant’s culpability and not the plaintiff’s own ability to enforce liability, the court reasoned that the statute “was enacted in this state . . . as a modern mechanism 55. Id. 56. Id. 57. Id. 58. 217 A.2d 673, 675 (R.I. 1966). 59. Id. at 674. 60. Id. 61. Id. 62. Id. at 675. The court held that “[i]n this state a wife may not maintain a suit against her husband for injuries caused by the latter’s negligence.” Id. (citations omitted).

for a fairer administration of justice.”63 Quoting, with approval, the wisdom of Dean Prosser, the court further acknowledged that “[t]here is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone . . . while the latter goes scot free.”64 Finally, judicial concern for permitting an otherwise liable defendant to go “scot free” was also apparent in Laird v. Chrysler Corp.65 In Laird, the court determined that the Rhode Island legislature’s abolition of sovereign immunity in 1969 “manifest[ed] the state’s consent to liability as a joint tortfeasor and for contribution.”66 Contribution suits against the state and its thirty-nine municipalities, however, would be limited to the statutory cap on damages recoverable from the state or its political subdivisions.67 C. What Does Pro Rata Mean? Because Rhode Island has continued to cling to the pro rata reduction rule, the Rhode Island Supreme Court has experienced some difficulty determining exactly what the concept means, especially in light of modern developments in tort law. Although the statute clearly preconditions the right to contribution upon a defendant’s payment of money exceeding his “pro rata share,”68 the original 1940 version of RIUCATA was silent with respect to the precise proportion of damages that constitutes one’s “pro rata share.” Initially, Rhode Island courts construed the term to mean “equal division.” For example, assuming two defendants are jointly liable for the same injury, a joint tortfeasor who paid off the entire common liability was entitled to contribution representing one-half of the plaintiff’s damage award. The 63. Id. at 676 (citing Hackett v. Hyson, 48 A.2d 353 (R.I. 1946)). 64. Id. (citations omitted). 65. 460 A.2d 425 (R.I. 1983). 66. See id. at 430; see also R.I. GEN. LAWS § 9-3-1 (1969). 67. Laird, A.2d at 430. When Laird was decided, the maximum award recoverable in a tort action against the state was $50,000. That amount has since been increased to $100,000. See R.I. GEN. LAWS § 9-31-2 (1984). 68. See R.I. GEN. LAWS § 10-6-4 (1956) (stating that “[a] joint tortfeasor is not entitled to a final money judgment for contribution until he or she has by payment discharged the common liability or has paid more than his pro rata share of the final money judgment”) (emphasis added).

authors of the 1955 revision of the Uniform Act expressly rejected this interpretation of the meaning “pro rata share,” writing, “in determining the pro rata shares of tortfeasors in the entire liability . . . their relative degrees of fault shall not be considered.”69 Rhode Island judges continued to apply the “equal division” approach indiscriminately until the early 1970s, when the Rhode Island General Assembly enacted the state Comparative Negligence Statute.70 Chiefly, the statute abolished the common law rule of contributory negligence, which precluded a plaintiff from recovering any damages if the plaintiff’s own conduct contributed to his injury.71 Instead, a plaintiff’s damage award would be “diminished by the finder of fact in proportion to the amount of negligence attributable to the person injured.”72 Consequently, the law required Rhode Island juries to assign percentages representative of each party’s degree of fault, the total sum of liability equaling 100%.73 As the courts embarked on this endeavor, however, joint tortfeasor defendants turned against the “equal division” of damages standard.74 Preferring instead a “comparative share” contribution regime, each joint tortfeasor was required to pay only up to his proportion of damages.75 As one judge noted, if a jury determined that the first joint tortfeasor was 99% at fault, and the second a mere 1% at fault, it would appear to be absurd to permit the fact that each [defendant] is a joint tortfeasor to rearrange the jury’s verdict and call upon the 1% negligent defendant to pay 50% of the judgment. Likewise, absurdity follow[ed] by permitting the 99% negligent defendant to be rewarded by virtue of his joint tortfeasor status and have his payment reduced from 99% to 50% of the judgment.76

69. UNIF. CONTRIBUTION AMONG TORTFEASORS ACT, § 2, (amended 1955), 12 U.L.A. 265 (1939). 70. See R.I. GEN. LAWS § 9-20-4 (1972). 71. See id. 72. Id. 73. Id. 74. See, e.g., Leite v. Cartier, No. C.A. 72-1019, 1976 WL 176913, at *2 (R.I. Super. Ct. Jan. 15, 1976); Hindy v. Bousquet, 1975 WL 169940, at *1 (R.I. Super. Ct. Feb. 28, 1975). 75. See Leite, 1976 WL 176913, at *2; Hindy, 1975 WL 169940, at *1. 76. Hindy, 1975 WL 169940, at *3.

In contrast, at least one other judge commented that the Rhode Island General Assembly’s decision not to adopt the 1955 Uniform Act manifested the legislature’s intent that joint tortfeasors should be responsible for paying damages only in proportion to their relative degrees of fault.77 Judges who continued to apply the traditional “equal division” computation reasoned that the General Assembly’s enactment of the Comparative Negligence Statute simply indicated an intent to “ameliorate the harsh results that flow from the contributory negligence rule,” and was not intended to modify the existing contribution statute.78 Continued adherence to the equal division contribution standard suggested a strict reading of both RIUCATA and the Comparative Negligence statute. These judges determined that the latter was not intended to “permit apportionment of pro rata shares of liability of the joint tortfeasors as among themselves,”79 but rather was to be considered only when the plaintiff’s negligence was at issue. Finally, in 1977 the General Assembly responded to the inconsistent interpretations advanced by the comparative fault statute by amending Section Three of RIUCATA. Section Three reads: “when there is a disproportion of fault among joint tortfeasors, the relative degree of fault of the joint tortfeasors shall be considered in determining their pro rata shares.”80 Hence, under the present statutory scheme as applied in the vast majority of joint tortfeasor claims, “pro rata share” really means “proportionate share.” Yet, as discussed in Part II, this approach has created more than its share of headaches for both judges and litigants alike. II. COMPETING CONSIDERATIONS

The primary purpose of RIUCATA is to create a right of contribution among joint tortfeasors.81 In Rhode Island, contribution is a statutory remedy that the common law did not 77. Leite, 1976 WL 176913, at *2. 78. Id. 79. Id. 80. R.I. GEN. LAWS § 10-6-3 (1976). 81. See Hackett v. Hyson, 48 A.2d 353, 355 (R.I. 1946) (observing that RIUCATA “was designed to reverse two well-established rules of law, namely, (1) that there was no contribution among joint tortfeasors, and (2) that the discharge of one joint tortfeasor by satisfaction of a judgment or by its equivalent, a release, discharged all the other joint tortfeasors”).

afford, and its aim is to promote fairness and justice among wrongdoers.82 On the other hand, an established public policy in Rhode Island is to promote the private settlement of legal disputes.83 Inevitably, on several occasions this dichotomy has challenged the Rhode Island Supreme Court to fashion holdings consistent with the Act’s purpose of ensuring equitable results for wrongdoers, while abstaining from further discouraging litigants from engaging in meaningful out-of-court settlement negotiations. Unfortunately, Rhode Island’s adherence to the pro rata reduction rule frustrates the task of encouraging settlement agreements in joint tortfeasor claims. Pursuant to Section Seven of RIUCATA, a plaintiff’s settlement with one joint tortfeasor does not discharge the other joint tortfeasor defendants, absent language within the release stating otherwise.84 Instead, the plaintiff’s claim against the non-settling tortfeasors is reduced by the greater of the amount paid for the earlier settlement, or an amount reflecting the settling tortfeasor’s degree of fault.85 Consequently, when the settling joint tortfeasor’s pro rata proportion of fault exceeds the amount agreed to in the settlement release, the plaintiff risks having his judgment greatly reduced. To illustrate, consider the following hypothetical. Suppose Pete is hurt by Pancho and Sophie, both of whom are joint tortfeasors within the meaning of RIUCATA. Assume Pete settles with Pancho before trial for $2000. The settlement does not release Sophie of her liability to Pete. Assume further that Pete later sues Sophie, but Pete and Sophie are unable to settle their dispute before trial. After each party presents his case, the jury values Pete’s harm in the amount $10,000. The jury additionally finds that Pancho was 80% at fault, and Sophie 20% at fault. Because Pancho’s pro rata share of the liability is greater than the consideration he paid for the release ($2000), Pete’s award is reduced by 80%, or $8000. Sophie is now required to pay only her 82. 18 AM. JUR. 2D Contribution § 6 (2004). 83. See Homar, Inc. v. North Farm Assoc., 445 A.2d 288, 290 (R.I. 1982) (announcing that “[o]ur policy is always to encourage settlement. Voluntary settlement of disputes has long been favored by the courts,” (citations omitted). The court further commented that “[w]here the parties, acting in good faith, settle a controversy, the courts will enforce the compromise without regard to what the result might, or would have been, had the parties chosen to litigate rather than settle.”). 84. See R.I. GEN. LAWS § 10-6-7 (1956). 85. See id.

proportion of the liability, or, $2000. Hence, Pete will receive only $4000, a mere fraction of the judgment awarded. Because Pete’s award will be reduced by Pancho’s proportion of fault, the inescapable conclusion is that Pete is actually discouraged from settling prior to trial, as his award risks being substantially reduced by an amount impossible for him to accurately gauge. In authoring the 1955 revision of the Uniform Act, the National Conference of Commissioners on Uniform State Laws responded to the apparent settlement disincentives advanced by the 1939 version of the model act, and modified the partial settlement provision to allow for a reduction of the plaintiff’s jury award equal to the amount paid by the settlement release.86 The amendment’s effect is that a plaintiff will receive the full value of the judgment entered in her favor, while immunizing the settling tortfeasors from defending later contribution actions instigated by the non-settling defendant.87 As applied in Rhode Island tort cases, the settlement disincentives propounded by the 1939 version of the Uniform Act – the model act which RIUCATA is based on – are exemplified by the 1979 case Augustine v. Langlais. In Augustine, the Rhode Island Supreme Court confronted a scenario where the plaintiff settled with one joint tortfeasor prior to trial for $42,000.88 At the trial against the second tortfeasor, the jury found that the settling tortfeasor was 85% negligent, and that the non-settling tortfeasor was 15% negligent, rendering a damage award to the plaintiff for $33,513.89 The court concluded that the superior court properly reduced the jury award by $42,000, even though this meant that the non-settling defendant – who the jury found 15% at fault – was excused from paying anything to either the plaintiff or the earlier settling defendant.90 Despite this odd result, the court justified its position on the grounds that the “injured person is entitled to only one satisfaction of the tort, even though two or more parties contributed to the loss.”91 Notably, the court did not re-state the concerns voiced by the

86. UNIF. CONTRIBUTION AMONG TORTFEASORS ACT, § 4 (amended 1955), 12 U.L.A. 265 (1939). 87. See id. 88. Augustine v. Langlais, 402 A.2d 1187, 1188 (R.I. 1979). 89. Id. 90. Id. 91. Id. at 1189.

superior court judge who, in reducing the jury award as mandated by the statute, recognized that RIUCATA actually serve[d] to discourage the settlement of litigation involving joint tortfeasors . . . once [the] one joint tortfeasor bought his peace by settling, the other joint tortfeasor had very little to lose by proceeding to trial, at the great expense of the State, because they knew by experience that a verdict in excess of $42,000 is somewhat of a rarity in this State.92 The trial judge further commented that “[h]ad the nonsettling defendants been faced with having to actually pay the plaintiffs for the proportion of their jury determined negligence, the possibility of settlement, by reasonable counsel, would have been reasonably expected.”93 The supreme court’s position in Augustine conforms to the statute’s purpose of promoting fairness for defendants by proscribing “double recovery” by plaintiffs. This perspective, however, is advanced at the expense of supporting voluntary settlements among litigants, a policy that the supreme court has enthusiastically embraced. And while the Augustine court was undoubtedly constrained by the General Assembly’s legislative mandate, later cases would afford the court greater flexibility in addressing the problems raised by RIUCATA’s partial settlement provisions. In Maragdonna v. Otis Elevator Co., the court addressed the effect of a prejudgment interest on a joint tortfeasor verdict where the plaintiff settled with one joint tortfeasor prior to trial.94 In Rhode Island, prejudgment interest on civil actions is recoverable pursuant to statute,95 “at the rate of twelve percent (12%) simple interest annually from the date the cause of action accrued, to be included in the entry of judgment.”96 While visiting Rhode Island Hospital in September 1980, the plaintiff injured herself as she stepped off an elevator, which

92. Augustine v. Langlais, 1978 WL 207856, at *1 (R.I. Super. Ct. Feb. 27, 1978). 93. Id. 94. 542 A.2d 232 (R.I. 1988). 95. See R.I. GEN. LAWS § 9-21-10 (1997). 96. DAVID J. OLIVERIA & JAMES A. RUGGIERI, DAMAGES IN RHODE ISLAND CIVIL TRIAL PRACTICE 43 (2002).

failed to stop at floor level.97 The plaintiff sued both the hospital and elevator manufacturer.98 In February 1986, just five days prior to trial, the hospital settled with the plaintiff for $7,500, and the parties executed a joint tortfeasor release discharging the hospital from further liability.99 Following the trial against the elevator manufacturer, the jury returned a verdict for the plaintiff in the sum of $20,000, reduced by 15%, which represented the plaintiff’s contributory negligence.100 The precise issue on appeal was whether the trial court erred in first calculating the statutory prejudgment interest on the full $17,000, and then discounting the $7,500 settlement amount.101 The court rejected this method, preferring instead the non-settling defendant’s reduction method: subtracting first the $7,500 settlement figure from the jury verdict before computing the prejudgment interest, (which, in this case, was substantial given the five and a half year delay between the injury and trial).102 Despite RIUCATA’s silence on the issue of prejudgment interest, the court reasoned that this calculation was preferable because it protected the nonsettling tortfeasor from paying “interest on the amount of the settlement.”103 In the context of civil actions involving joint tortfeasors, the position established by the Augustine and Margadonna courts is that the equitable rights of wrongdoers trump the equitable rights of those who suffer injury at the hands of wrongdoers.104 Although these opinions are technically consistent with RIUCATA’s purpose of promoting fairness and justice among joint tortfeasors, they do so at the expense of plaintiffs. Not only does this attitude discourage parties from engaging in private settlement negotiations, but it also conflicts with a long recognized goal of civil litigation – making the plaintiff whole.105 Moreover, 97. See Margadonna, 542 A.2d at 232. 98. Id. at 235. 99. Id. 100. Id. 101. Id. 102. See id. at 236. 103. Id. 104. Id. at 235. The court specifically emphasized that Rhode Island’s contribution statute is designed to prevent a plaintiff from receiving a double recovery for the same injuries, and that a nonsettling tortfeasor should not be forced to pay interest on the amount of the earlier settlement. Id. 105. See generally Jay N. Abramowitch, Joint Tortfeasor Releases – Time for a New Approach, 72 PA. B.A. Q. 66, 69 (2001).

the court’s application of the prejudgment interest statute in Margadonna stretched RIUCATA’s purpose of ensuring fairness for defendants much farther than the Act envisions. By insulating the non-settling defendant from paying the excess of prejudgment interest on the jury award, the court effectively transferred these costs to the plaintiff. Lastly, the Margadonna method conflicts with two of the underlying objectives of the prejudgment interest statute: to serve as an incentive to the early settlement of disputed claims and to “compensat[e] plaintiffs for waiting for recompense to which they were legally entitled.”106 The supreme court later acknowledged Margadonna as unduly obstructive to the private settlement process.107 In Merrill v. Trenn,108 the litigants asked the court to determine the prejudgment interest on a jury verdict against a non-settling joint tortfeasor when the plaintiff previously settled with a co-joint tortfeasor, yet did not release the non-settling tortfeasor from liability.109 In a thoughtful analysis examining the policies underlying both RIUCATA and the prejudgment interest statute, the court concluded that the Margadonna interest-computation method “impede[d] the [settlement] process by preventing an injured party who has given a joint tortfeasor release to an earliersettling defendant from ever recovering any prejudgment interest on the early-settlement funds.”110 Turning specifically to the policies underlying the prejudgment interest statute, the court further commented that although “the Margadonna rule . . . stems from § 10-6-7’s claim reduction provision - [it] could prove to be a disincentive to early settlements while providing an undeserved windfall in savings to any nonsettling alleged tortfeasors.”111 Notably, the court stated that the Margadonna rule [i]ncreased litigation costs and the vagaries of trial outcomes can operate as a disadvantage to defendants as well as to plaintiffs. In the face of the costly discovery and all the potential expenses, delays, and uncertainties of

106. 107. 108. 109. 110. 111.

Martin v. Lubermen’s Mut. Cas. Co., 559 A.2d 1028, 1031 (R.I. 1989). See Merrill v. Trenn, 706 A.2d 1305, 1312 (R.I. 1998). Id. Id. at 1309. Id. at 1312. Id.

trial, including the risk of an unexpectedly large verdict, (plus substantial interest accruing thereon), many an alleged joint tortfeasor will be amenable to a pretrial settlement for the entire amount of his or her potential damages liability plus interest thereon. Thus the policies behind the prejudgment interest statute (and the [RI]UCATA) call for a method of interest computation in cases like this one that will not impose disincentives on willing litigants to reach as early and as accurate a settlement as the parties can fashion.112 Although the court was primarily concerned with the manner by which prejudgment interest affects the settlement landscape in civil actions involving joint tortfeasors, the result in Merrill is significant as it represents a seachange in the way Rhode Island’s high court approaches the problem of partial settlement releases. Undeniably, the supreme court was concerned with devising a prejudgment interest formula consistent with the preserving the early-settlement rationale underlying the prejudgment interest statute, while further ensuring that all of the parties – and not merely non-settling joint tortfeasors – are treated fairly. Most significantly, by importing the policy arguments of the prejudgment interest statute into the context of partial settlement releases, the Merrill court added substantially to the policy arguments favoring pretrial settlements in tort claims involving RIUCATA. Lastly, the force of RIUCATA’s historical purpose of 112. Id. The court then articulated an entirely novel, three-step formula for computing prejudgment interest when there is an early settlement with a joint tortfeasor yet no settlement release is executed. In such a case, first, the non-settling or later-settling defendant shall be charged with interest at the statutory rate…on the entire amount of damages from the date on which the plaintiff’s cause of action arose to the date of any prejudgment settlement payment by an earlier settling [defendant].” Second, once payment by the settling defendant has been made, “the plaintiff’s total damages shall be reduced by the full amount of the earlier payment and the nonsettling defendant charged with interest on the reduced balance of the remaining damages for the period from the date of entry of judgment on any settlement, verdict or decision. Finally, “[t]he interest charged for both periods shall be added together and the sum added to the amount of the remaining alleged tortfeasors’ postreduction damages liability.” Id. at 1313.

delivering fairness for wrongdoers remains somewhat compromised in light of the court’s majority holding in the 2001 case Calise v. Hidden Valley Condo. Association.113 In Calise, not only did the Rhode Island Supreme Court supplement the prosettlement policy arguments articulated in Merrill, but it also clarified RIUCATA’s relationship to the state’s comparative negligence statute. Writing for the majority, Justice Bourcier held that a joint tortfeasor who incurs a default judgment is precluded from offering evidence of the settling defendant’s alleged negligence at a hearing to determine the plaintiff’s damages recoverable against the defaulting joint tortfeasor.114 The ruling effectively precludes a defaulting joint tortfeasor from seeking contribution from earliersettling defendants. Thus, regardless of any settlement proceeds received by the plaintiff from the earlier settling defendant, for purposes of the damage hearing the non-settling defendant is deemed one-hundred percent at fault.115 The subsequent judgment, will, however, be offset by the amount paid in the earlier negotiated settlement. In denying the defaulting joint tortfeasors the opportunity to present evidence tending to show the degree of the settling defendant’s negligence, the court announced that the state’s comparative negligence statute was not a comparative fault statute. Rather, it “permits comparison of either the negligence between a plaintiff and a defendant, or, in the case of multiple defendants, the comparison of any negligence on the part of each particular defendant. It does not contemplate or address the proportionate negligence between the various defendants.”116 As the court observed, if the defaulting joint tortfeasors were allowed to present evidence of the settling defendants negligence at the damages hearing, the settling defendants “would not want to settle if they thought it possible that they could be forced later to defend themselves against defaulting defendants on the merits of

113. 773 A.2d 834 (R.I. 2001). 114. Id. at 840. 115. See id. at 838 (citing R.I. GEN. LAWS § 9-20-2 (1956), providing: “In all cases, except where otherwise provided, if judgment is rendered on default ... damages shall be assessed by the court, with the intervention of a jury unless cause is shown why there should be no intervention of a jury. The claimant in any case may waive the intervention to jury.”). 116. Id. at 837-38.

the lawsuit.”117 Likewise, “the plaintiff would not be made whole because the defaulting party would pay only his or her proportionate amount of damages and, in view of the codefendant’s full release, the plaintiff could not collect the difference from the settling co-defendant.”118 In reaching its conclusion, the majority avoided the pro rata reduction rule prescribed by RIUCATA, applying instead a dollarfor-dollar award reduction against the defaulting defendant’s liability. Consequently, in the context of defaulting joint tortfeasors, the court preferred the pro tanto offset calculation prescribed by the 1955 revision of the Uniform Act. Recognizing that the comparative negligence statute itself contains no set-off provision, the majority supported its reasoning on the basis that the pro rata reduction rule should be considered only when the plaintiff conduct contributes to his own injury.119 Hence, when the plaintiff’s negligence is not at issue, the contribution and comparative negligence statutes should, ideally, be viewed as mutually exclusive. Following Calise, even if one is to keep the two laws separate in like scenarios, the rationale supporting the pro rata reduction rule remains somewhat convoluted. If the General Assembly’s primary purpose in adopting RIUCATA was to ensure that a joint tortfeasor who paid above and beyond his calculated share of damages could recoup a portion of his expenses from his cotortfeasors, then the apportionment of fault to reflect each defendants’ degree of liability seems reasonable. But, given the supreme court’s treatment of the comparative fault statute in Calise, apportioning liability for the purpose of creating a set-off proportional to the settling joint tortfeasor’s degree of fault seems misplaced, especially when the plaintiff is not negligent. But this 117. Id. at 840. 118. Id. Of course, as Justice Flanders correctly points out in his dissenting opinion, the result hypothesized by the majority is still very likely to occur in the normal multi-party tort claim where there is no defaulting defendant. While Section 10-6-5 of RIUCATA, permits a settling joint tortfeasor to collect contribution from all defendants who the settlement releases from liability to the plaintiff, section 10-6-3 and 10-6-4 of the statute also operate to ensure that “a joint tortfeasor held liable and compelled to pay more than his, her, or its ‘pro rata share of the final money judgment,’ still has a right to seek contribution from the other joint tortfeasors.” Id. at 846 (citing R.I. GEN. LAWS § 10-6-3 (1956); id. at §10-6-4). 119. See, e.g., Calise, 773 A.2d at 838-39 (citing R.I. GEN. LAWS § 9-20-4.1 (1956)).

is exactly the result mandated by the General Assembly’s 1977 amendment to RIUCATA, which demands that “relative degrees of fault” be consulted in determining each defendant’s pro rata share of liability.120 Essentially, in designing a formula guaranteed to proscribe the “double recovery” by a plaintiff after she enters into a partial settlement release, the General Assembly effectuated the same result contemplated by the comparative negligence statute, even though the two laws are supposed to be mutually exclusive. Accordingly, although Rhode Island’s courts must continue to apply the pro rata reduction rule in a manner consistent with RIUCATA’ s language, the court’s recent treatment of the statute – both in relation to the state’s prejudgment interest and comparative negligence laws – suggests that notions of fairness for all parties, and not just wrongdoers, are likely to weigh in heavily on decisions yet to come. III. THE BANKING CRISIS

The 2006 amendments to RIUCATA are modeled after legislation enacted shortly after the infamous 1991 collapse of the Rhode Island Share and Deposit Indemnity Corporation (RISDIC). On New Year’s Day, 1991, former Governor Bruce Sundlun declared a “bank emergency,” freezing 300,000 depositors accounts within the state.121 Blaming RISDIC’s collapse on “incestuous connections among politics, business, and organized crime,”122 the General Assembly established the Depositor’s Economic Protection Corporation (DEPCO), a public corporation designed to reimburse depositors who could not access their bank accounts because of the bank emergency freeze.123 Significantly, the legislation developed “an entirely new financial institution receivership law, as well as statutory priorities for prompt payment to people whose deposits were left uninsured due to RISDIC’s failure.”124

120. R.I. GEN. LAWS § 10-6-3 (1977). 121. See Fox Butterfield, Rhode Island Tries to Cope During ‘Bank Emergency’, ALBANY TIMES UNION (NY), Jan. 3, 1991, at C7. 122. Brian Mooney, Joan Vennochi & Kevin Cullen, R.I. Officials, Cozy with Bankers, Did Little to Prevent Crisis, BOSTON GLOBE, Jan. 6, 1991, at M1. 123. See R.I. GEN. LAWS § 42-116-2 (1993). 124. See id.; see also Ernst & Young v. Depositors Econ. Prot. Co., 862 F. Supp. 709, 711 (D.R.I. 1994).

DEPCO was also charged with “the pursuit of tortfeasors who contributed to the banking crisis.”125 Anticipating a high number of potential defendants whose alleged misconduct led to RISDIC’s demise, DEPCO’s authors devised a contribution provision mirroring, in substance, the 1955 revision of the Uniform Act. Unlike RIUCATA, the DEPCO Act’s provision addressing courtapproved settlements provided, in pertinent part, that: [A] person, corporation, or other entity who has resolved its liability to [DEPCO] . . . or the received of any statechartered financial institution in a judicially approved good faith settlement is not liable for contribution or equitable indemnity regarding matters addressed in the settlement. The settlement does not discharge any other joint tortfeasors unless its terms provide, but it reduces the potential liability of the joint tortfeasors by the amount of the settlement.126 Among those suspected of playing a part in RISDIC’s downfall was Ernest & Young LLP, a New York accounting firm responsible for auditing RISDIC’s financial health.127 Prior to DEPCO’s passage, Ernest & Young and other defendants could at least take comfort in the prospect that RIUCATA’s pro rata reduction rule provided a cushy result if, for example, it decided not to settle with DEPCO. For example, if Ernest & Young played their odds and proceeded to a trial, and the jury found that Ernest & Young’s proportion of liability was less than the amount paid by the settling defendant, then the firm could conceivably go “scot free,” excused from paying a dime to either DEPCO or the earliersettling defendants.128 Likewise, even if Ernest & Young ended up footing DEPCO’s entire damage award, it could still seek contribution from both settling and non-settling defendants alike.129 Surprising Ernest & Young, however, was the fact that the DEPCO Act abruptly replaced the pro rata reduction rule mandated by RIUCATA with a pro tanto, or dollar-for-dollar 125. In re Advisory Opinion to the Governor, R.I. Depositors Econ. Prot. Co. v. Brown, 659 A.2d 95, 99 (R.I. 1995). 126. R.I. GEN. LAWS § 42-116-40 (1993) (emphasis added). 127. See Paul Manuele, Big Suits: DEPCO v. Ernest & Young, Dec. 1997 AM. LAW 91. 128. See R.I. GEN. LAWS § 10-6-7 (1956). 129. See id. at § 10-6-8.

partial settlement calculation for offsetting subsequent judgments rendered in favor of the plaintiff.130 Under the partial settlement scheme prescribed by the DEPCO legislation, a partial settlement agreement would have the effect of reducing a subsequent judgment by the actual amount contemplated in the release, rather than the non-settling defendant’s pro rata share of liability.131 Ernest & Young’s statutory right to contribution had also been eliminated by the DEPCO Act’s passage.132 The accounting firm quickly challenged the statute’s constitutionality in federal court, asserting that the law deprived Ernest & Young of their fourteenth amendment rights to due process and equal protection, and that the statute qualified as an unconstitutional bill of attainder.133 While the federal district court judge concluded that Ernest & Young lacked standing with respect to its fourteenth amendment challenges, it did observe that the “DEPCO Act’s apparent purpose is to encourage settlement of claims brought by DEPCO. To do this, the DEPCO Act prohibits indemnity or contribution suits against joint tortfeasors who settle with DEPCO . . . [t]his is in distinction to Rhode Island’s contribution statute, which allows one joint tortfeasor to sue another for their proportionate share of liability, and not just the amount of the settlement.”134 The Rhode Island Supreme Court later upheld the constitutionality of the statute in its 1995 advisory opinion to former Governor Lincoln Almond.135 The significance of the DEPCO Act lies in the General Assembly’s realization that RIUCATA was poorly equipped at facilitating settlements in complex litigation involving multiple tortfeasors. Admittedly, while the DEPCO Act did not disturb RIUCATA, the statute at least represented a willingness on the part of Rhode Island’s lawmakers to experiment – and perhaps

130. See id. at § 42-116-40 (2006). 131. Id. 132. Id.; see also Terri L. Pastori, Banking Crisis Justifies Discriminatory Classification of Nonsettling Joint Tortfeasors, 30 SUFFOLK U. L. REV. 513, 514 (1997) (“[T]he Rhode Island General Assembly modified the initial DEPCO Act, which prohibits a nonsettling defendant, who the trier of fact later finds liable, from seeking contribution from a settling joint tortfeasor.”). 133. See Ernst & Young v. Depositors Econ. Prot. Co., 862 F. Supp. 709, 712-13 (D.R.I. 1994). 134. Id. at 712 (citing R.I. GEN. LAWS § 10-6-8 (1956)). 135. See In re Advisory Opinion to the Governor, R.I. Depositors Econ. Prot. Co. v. Brown, 659 A.2d 95, 106 (R.I. 1995).

learn from – a different methodology altogether with respect to the manner in which Rhode Island handles partial settlement releases involving joint tortfeasors. IV. THE STATION FIRE CRISIS

A. Brewing the Perfect Storm On February 20, 2003, the California-based metal troupe Great White took the stage at The Station, a West Warwick nightclub owned by brothers Jeffery and Michael Derderian.136 Perhaps best known for their song “Once Bitten, Twice Shy,” Great White attracted close to four hundred concertgoers that evening, most of whom resided in Rhode Island, Massachusetts, and Connecticut.137 Taking the stage shortly after 11:00 pm, Great White greeted the revelers with a pyrotechnic display operated by the band’s tour manager, Daniel Biechele.138 The pyrotechnic devices emitted sparks, which in turn ignited the sound-proofing foam insulating the club’s walls and ceiling.139 Within seconds, a roaring fire mercilessly ripped its way through the sixty-year-old wood frame structure, pushing the confused crowd toward the building’s main entrance.140 The fire’s thick black smoke rapidly filled the club, blinding and choking victims as they attempted to escape the roaring inferno.141 Within ninety seconds, the temperature inside The Station reached an estimated 1,800 degrees.142 One hundred people died, over two hundred were injured, and a mere seventy-seven escaped unharmed.143 In hindsight, all of the ingredients for a terrible occurrence were firmly in place. The combustible wood frame building had no 136. See Jack Perry, Fire Investigators Face Many Questions, PROVIDENCE J., Feb. 21, 2003; Karen Lee Ziner & Zachary R. Mider, Many Feared Dead, Scores Injured as Fire Rips Through West Warwick Club, PROVIDENCE J., Feb. 20, 2003, at B1. 137. See Passa v. Derderian, 308 F. Supp. 2d 43, 60 (D.R.I. 2004); Rock Band Performing at the Station Was Once a Grammy Nominee, PROVIDENCE J., Feb. 21, 2003. 138. See In a Span of Minutes, the Station Fire Grew from Sparks to a Raging Inferno, PROVIDENCE J., Mar. 1, 2003, at B8. 139. See id. 140. See id. 141. See Ralph Ranalli, Report Says Rhode Island Club Victims Had Little Chance, BOSTON GLOBE, Mar. 4, 2005, at A1. 142. Id. 143. Passa v. Derderian, 308 F. Supp. 2d 43, 46 (D.R.I. 2004).

sprinkler system, poorly marked exits, and was insulated with polyurethane packing foam, a product which fire safety experts have likened to “solid gasoline.”144 In the three years preceding the inferno, state fire officials failed to note the existence of the highly flammable foam, and also allegedly failed to properly enforce then-existing capacity and exit requirements.145 Moreover, Great White did not secure the requisite fire permits prior to setting of the indoor firework display.146 B. The Station Fire Bill – DEPCO Redux Given the fire’s horrific toll on human life and health, the Rhode Island legal community immediately braced itself for an expected mass deluge of personal injury claims. Just days after the fire, Rhode Island Superior Court presiding justice Joseph F. Rodgers, Jr. appointed Superior Court Judge Alice B. Gibney to oversee all civil lawsuits filed as a result of the fire, irrespective of whether they were filed in Rhode Island’s courts.147 Rhode Island lawmakers also briefly flirted with the idea of establishing a compensation fund for the Station Fire families and victims modeled after the federal September 11th Victim Compensation Fund,148 yet lawmakers ultimately discarded this plan for failure to secure political support from the Governor’s office.149 In April of 2003, the first federal lawsuit relating to the Station Fire was filed in Rhode Island federal district court,150 invoking the applicability of the newly-minted federal Multiparty, Multiforum Trial Jurisdiction Act of 2002.151 The 2002 law expanded the federal courts’ original jurisdiction over lawsuits arising from accidents causing death to more than seventy-five 144. See, e.g., Ranalli, supra, note 133; Peter B. Lord, The Station Nightclub Disaster - Foam Used at the Station is Well-Known Killer, PROVIDENCE J., Mar. 9, 2003, at 1. 145. Tracy Breton, Station Civil Lawsuit Refiled, PROVIDENCE J., Feb. 16, 2006, at B1. 146. See Levitz et. al., supra note 2, at 1. 147. Id. 148. See David McPherson, Sept. 11 Compensation Fund Looked at as Model for Fire Victims, PROVIDENCE J., Mar. 6, 2003, at 16. 149. See Liz Anderson, Governor Reluctant to Use Tax Dollars for Fire Victims, PROVIDENCE J., May 5, 2003, at A9. 150. See Tracy Breton, Lawyer Files Suit in Federal Court, PROVIDENCE J., Apr. 23, 2003, at 1. 151. See Multiparty, Multiforum Trial Jurisdiction Act, 28 U.S.C. § 1369 (2002).

people at a discrete location, provided certain diversity requirements are satisfied.152 Penning the first opinion to explore the limits of the federal law’s jurisdictional reach, in March 2004 Senior District Court Judge Ronald R. Lagueux held that the Rhode Island district court was not required to abstain in civil claims arising out of the Station Fire because the majority of the plaintiffs were not Rhode Island residents, and the primary defendants were not all from one state.153 Determining that the federal law was designed to consolidate in a federal court litigation arising from a catastrophic disaster, Judge Lagueux wrote that “Congress’ motivation in passing this legislation was to promote judicial efficiency while avoiding multiple lawsuits concerning the same subject matter strewn throughout the country in various state and federal courts.”154 Since then, the majority of the Station Fire civil actions have been consolidated in the federal district court for the District of Rhode Island before Judge Lagueux under a master complaint, the latest of which names ninety-seven defendants and 266 plaintiffs.155 Because early investigations into the cause of the fire revealed a host of potentially culpable parties, victims’ attorneys quickly realized that Rhode Island’s contribution statute would likely hinder settlement negotiations. Assuming that all the Station Fire defendants are joint tortfeasors within the meaning of RIUCATA, if the victims entered into a settlement with a defendant for $1 million, and a jury then rendered a $50 million verdict, finding that the settling party was 50% responsible for the 152. Id. See also Peter Adomeit, The Station Nightclub Fire and Federal Jurisdictional Reach: the Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002, 25 W. NEW ENG. L. REV. 243, 247 (2003) (In summarizing the Act, Mr. Adomeit writes: The Act changes the laws of federal jurisdiction, removal jurisdiction, venue, service of process, and subpoenas ... Once there, the federal court ‘shall abstain jurisdiction’ if the dispute is primarily local, or the federal court could keep the cases for determining liability. If there is a finding of liability, there is a right to immediate appeal; if liability is upheld, the federal court then returns the cases ‘to the State court from which it had been removed,” for determination of damages, but is given discretion to retain the damage issues as well. (citations omitted)). 153. Passa v. Derderian, 308 F. Supp. 2d 43, 60-63 (D.R.I. 2004). 154. Id. at 53-54. 155. Third Amended Master Complaint at 1-18, Gray v. Derderian, No. 04312-L (D.R.I. Feb. 15, 2006); Breton, supra, note 145, at 1.

victim’s injuries, the $50 million verdict would be reduced by half, leaving the victims with just $25 million.156 Moreover, a settling defendant could not “buy his peace” through the settlement, for there always remained the risk that he would later be liable for contribution if it turned out that his degree of culpability exceeded the amount he paid for the settlement.157 Additionally, even if the victims secured a judgment against a defendant, an additional risk remained that the defendant would be financially insolvent and thus unable to satisfy the judgment award. This was particularly true with respect to Great White, the Derderian brothers, and the town of West Warwick. Great White carried insurance coverage worth a mere $1 million dollars.158 The Derderians, who carried a $1 million dollar peroccurrence insurance policy on the nightclub, filed for Chapter 7 bankruptcy protection in September 2005, shortly after being hit with a $1.6 million dollar fine by the State of Rhode Island for failing to carry workers’ compensation insurance.159 Although the town of West Warwick – whose agents were charged with adequately inspecting The Station for safety hazards and violations – maintained a $4 million dollar policy, it was of the “wasting asset” variety, meaning that attorneys fees and associated litigation expenses would be deducted directly from its coverage.160 Consequently, the insurance coverage of the club and these other potentially culpable parties would likely fall woefully short of fairly compensating the numerous victims and their families. Lawmakers, knowing well that no plaintiff’s attorney in their right mind would advise their client to agree to settlement under these circumstances, responded to the mass litigation crisis brewing within Rhode Island through enactment of the house bill H. 7109, otherwise known as the “Station Fire Bill.”161 Inspired by the DEPCO Act borne in the wake of the 1991 banking 156. See R.I. GEN. LAWS § 10-6-7 (1956) (amended 2006). 157. See id. at § 10-6-8. 158. See Edward Fitzpatrick, Great White Was Carrying $1 Million in Insurance, PROVIDENCE J., Jul. 3, 2003, at 1. 159. See Edward Fitzpatrick & Lynn Arditi, Station owners file for bankruptcy, PROVIDENCE J., Sept 24, 2005, at A1. 160. See Levitz et al., supra note 2, at 1. It is worth noting that West Warwick’s liability would likely be subject to the statutory cap of $100,000 per victim pursuant to R.I. GEN. LAWS § 9-31-2 (1997). 161. H.R. 7109, 120th Gen. Assem., Reg. Sess. (R.I. 2006).

emergency, the bill amended RIUCATA itself, incorporating the 1955 Uniform Act’s partial settlement revisions, but only for tort claims involving twenty-five or more deaths arising from a single occurrence.162 Pursuant to the 2006 amendments to RIUCATA, a non-settling defendant involved in such a catastrophe may no longer claim an offset against the rendered judgment representing the settling defendant’s proportionate share of fault.163 Instead, the non-settling defendant is simply entitled to a pro tanto, or dollar-for-dollar credit representing a sum equal to any earlier settlement awards received by the plaintiff from the non-settling

162. See R.I. GEN. LAWS §§ 10-6-7, 10-6-8 (Supp. 2006); see also Breton, supra note 8, at B1. 163. See id. The 2006 amendments to RIUCATA, modified section 10-6-7, which now reads: A release by the injured person of the one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid. However, in circumstances where there are twenty-five (25) or more deaths from a single occurrence, then a release by the injured person of one -joint-tortfeasor given as part of a judicially approved goodfaith settlement, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release. (emphasis added). Similarly, Section 10-6-8, as amended, provides: A release by the injured person of one joint tortfeasor does not relieve him or her of liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person’s damages recoverable against all the other tortfeasors, [h]owever, in circumstances where there are twenty-five (25) or more deaths from a single occurrence, a release by the injured person of one joint tortfeasor given as part of a judicially approved good faith settlement does not relieve him or her from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction to the extent of the amount of consideration paid for the release. (emphasis added).

defendant’s co-tortfeasors.164 The plaintiffs also receive the full value of the judgment entered in his favor. Additionally, the plaintiff may only claim the benefit of the revised act if the earlier settlements were entered into with good faith.165 Predictably, the bill faced strong opposition from pro-business special interest groups such as the Greater Providence Chamber of Commerce and the American Tort Reform Association.166 Even Rhode Island Governor Donald Carcieri permitted the Station Fire Bill to become a law without his signature.167 Moreover, among the Station Fire Bill’s sharpest critics were the “deep pocket” defendants involved in the Station Fire civil litigation, such as Anheuser Bush and Clear Channel Broadcasting - large, wealthy corporations who sponsored Great White’s show.168 Because Rhode Island’s pure joint and several liability regime would allow the victims to collect 100% of their award from any defendant who is found at least one percent at fault, these Fortune 500 companies could end up paying the entire judgment, even if they are determined to be only minimally at fault.169 Despite this criticism, the Station Fire Bill represents a comprehensive effort intended to encourage the parties involved in the Station Fire tragedy to settle their claims prior to trial. Although the large, “deep pocket” defendants may have to pay more than their calculated share of fault, the favorable interests embraced by the new law outweigh this drawback. Once any of the Station Fire defendants settles, he becomes immune from later being forced to defend a contribution action initiated by a non-settling defendant. Given the “good faith” requirement of the modified statute, the settling parties will also be keenly aware of the non-settling defendants’ interest in ensuring that the settling defendants do not get off “too cheaply”; the good faith provision presumably allows the non-settling defendants the right to contest 164. See id. 165. See id. 166. See Breton, supra note 8, at B1; see also Press Release, American Tort Reform Association, Legislative Watch, (May 4, 2006) (on file with author) (ATRA asserts that the 2006 amendments to RIUCATA render the state’s joint and several liability law “one of the most unfair in the country.”). 167. See Breton, supra note 8, at B1. 168. See Tracy Breton, Massive Lawsuit Filed on Station Fire Victim’s Behalf, PROVIDENCE J., Jul. 3, 2003. 169. See R.I. GEN. LAWS §§ 10-6-7, 10-6-8 (Supp. 2006); see also Breton, supra note 8, at B1.

the amount of the settlement before the court.170 Furthermore, in exchange for foregoing any future contribution actions, the nonsettling defendants, if they choose to proceed to trial, will receive the benefit of an offset representing any settlement proceeds received by the victims. Most importantly, the Station Fire victims will be made as close to financially whole as justice dictates. And of course, the new law will likely help reduce the expenses borne by the courts and litigants by encouraging the full and final settlement of these complex and emotionally-charged claims. Apart from the 2006 amendments’ direct effect on the Station Fire civil actions, the recent legislation also embraces the current reality of Rhode Island’s civil litigation landscape. Admittedly, in 1940, when the General Assembly adopted the initial version of RIUCATA, Rhode Island was a simpler place. Following World War II, however, American tort law expanded to encompass doctrines such as strict products liability and medical malpractice; areas of the law that have seen an increase in multi-party claims.171 Nationally, modern tort claims are more likely to “involve novel legal and factual claims, higher stakes, multiple

170. See generally Richard C. Sipan, The House that Tech-Built has no Foundation in Nevada: A Comparison of Good Faith Settlement Law in California and Nevada, 57 INTER ALIA 1 (Jan. 1992) (explaining how Nevada’s good faith, pro tanto contribution statute, NRS 17.245, represents a trade off of interests between settling and non-settling defendants). The settling defendant wants the certainty that when he pays a sum of money, he buys his peace once and for all and won’t be required to come up with more money; to satisfy this interest, the state provides that a good faith settlement bars all contribution claims against the settling Defendant. The non-settling Defendants have an interest in seeing that the settling Defendant does not get off too cheaply, because they, the non-settlors, will have to pay the difference if plaintiff wins a verdict or judgment at trial. The non-settling Defendants get, in exchange for the cutting off of their contribution claims, an offset in the amount of the settlement funds which is deducted from the judgment amount, if any, awarded to plaintiff after trial … in addition, the non-settling defendants get the right to contest the adequacy of the amount of the settlement and the fairness of the settlement terms, in a good faith settlement determination before the court. Id. 171. See THOMAS A. KOENIG & MICHAEL L. RUSTAD, IN DEFENSE OF TORT LAW, 46-47 (New York University Press 2001). See also Stephen McG. Bundy, The Policy in Favor of Settlement in an Adversary System, 44 HASTINGS L.J. 1, 26 (1992).

parties, and greater technical complexity.”172 Moreover, in recent history, America’s courts have accommodated litigation instigated by several mass disasters, including the MGM-Grand Hotel fire,173 the terrorist attacks on the World Trade Center on September 11, 2001, and most recently the 2003 stampede at a Chicago nightclub which killed twenty-one people and injured more than fifty others.174 Unfortunately, time will only tell when the next disaster resulting in loss of life and limb will strike. As the DEPCO banking crisis illustrated, and the Station Nightclub disaster reaffirms, RIUCATA is ill-equipped to encourage pretrial settlements in tort claims involving multiple defendants. Additionally, both events demonstrate that efforts to foster just and speedy resolutions to complex, and oftentimes emotionally-charged disputes is good public policy for Rhode Island. First, from an institutional perspective, by extending that applicability of the pro-tanto offset rule encapsulated in the DEPCO Act and Station Fire Bill to all joint tortfeasor claims, (and thereby eliminating the settlement barriers present in the general applicability of RIUCATA), Rhode Island’s courts are likely to benefit from the preservation of scarce judicial resources and reductions in docket backlog.175 Second, from the point of view of individuals involved in multiparty litigation, a partial settlement contribution rule which encourages litigants to settle prior to trial may result in more satisfying results if settlement is achieved.176 Lastly, settlement may provide a more favorable result than full adjudication of a legal dispute 172. McG. Bundy, supra note 171, at 1, 26. 173. See Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 974-76. The article’s authors describe the event as follows: “On the morning of November 21, 1980, faulty wiring in the kitchen of the MGM-Grand Hotel in Las Vegas started one of the worst hotel fires in history.” Id. “Eighty-four people died, the majority of them from smoke inhalation, and over 500 people were injured.” Id. Notably, in the civil actions that followed, “the settlement by the principle defendants placed great pressure on the remaining defendants. They faced substantial joint and several liability, but would receive credits from the principle defendants that were also limited to the amount of their settlements.” Id. This instance perhaps demonstrates how the Station Fire claims are likely to be resolved. 174. Michael Higgins, Partial Settlement OKd in E2 Nightclub Stampede – Insurance Policies to Pay $1.5 Million, CHICAGO TRIBUNE, Oct. 27, 2006, at 6. 175. See Margaret Meriwether Cordray, Settlement Agreements and the Supreme Court, 48 HASTINGS L.J. 9, 36 (1996). 176. See id. at 37.

because in negotiation the parties are free to consider the entire spectrum of relevant facts and principles, whether or not they are formally cognizable in law . . . the parties have the flexibility to craft more creative – and potentially more responsive – solutions to their problems, because they are neither limited to the traditional legal remedies nor ‘binary’, win/lose results.177 V. CONCLUSION

As both DEPCO and the Station Fire Bill illustrate, RIUCATA is an outdated contribution scheme inconsistent with the realities of modern tort litigation. Rhode Island’s litigation landscape is much more complex today than it was in 1940 when RIUCATA was initially adopted. On the bright side, however, is the notion that both laws, coupled with the Rhode Island Supreme Court’s increased willingness to advance public policy goals friendly to the facilitation of pretrial settlements, are indicative of a warming towards the outright adoption of the pro tanto offset rule adopted in the 1955 revision of the Uniform Act – a move which will likely benefit not only Rhode Island’s courts, but its people as well. Alexandria E. Baez∗

177. Id. (citations omitted). Juris Doctor Candidate, Roger Williams University School of Law, 2008; Bachelor of Arts, Political Science, Johnson State College. Many thanks to my editors, Russell Farbiarz and Margreta Vellucci, for their invaluable feedback and helpful comments on earlier drafts. Thanks also to Mary Kibble for her limitless friendship and generous wit as we completed our tenure on the Roger Williams University Law Review.

∗

Spousal Disinheritance in Rhode Island: Barrett v. Barrett and the (De)evolution of the Elective Share Law Whatever we inherit from the fortunate We have taken from the defeated. — T.S. Eliot1 I. INTRODUCTION

Just months after the Anna Nicole Smith case2 was heard by the U.S. Supreme Court last year, a less scandalous version was litigated in Rhode Island. The case of Barrett v. Barrett3 did not involve a voluptuous celebrity, a billionaire oil mogul, or a crooked son,4 but it presented the familiar story of a younger woman marrying an older man and then, after his death, fighting with his children over the estate. At the heart of both cases is the question of what rights a surviving spouse should have to continued support in a society in which multiple marriages are increasingly common. The Barrett decision drew little attention, yet it changed the law of this state in one dramatic way: it is now remarkably easy to disinherit a spouse. In fact, Rhode Island’s law has become one of

1. T.S. ELLIOT, FOUR QUARTETS: LITTLE GIDDING (1943). 2. Marshall v. Marshall, 126 S. Ct. 1735 (2006) (former Playboy model marries billionaire octogenarian with adult children from a previous marriage. After he dies, his estate is the subject of a pitch-battle between the would-be heiress and his son). 3. Barrett v. Barrett, 894 A.2d 891 (R.I. 2006). 4. Anna Nicole Smith Case Reaches Supreme Court, Nina Totenberg (National Public Radio, Morning Edition, broadcast Feb. 28, 2006) available at www.npr.org.).

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the least protective of surviving spouses in the entire country.5 Should we be concerned that our state has dismantled the traditional protections afforded to surviving spouses while many states are doing the opposite? The significance of the change is best understood when looked at in the context of Rhode Island’s evolving elective share law. Under Rhode Island General Laws § 33-25-2 et seq., the elective share system that replaced the common law doctrines of dower and curtesy in 1978, when a married person dies, the surviving spouse is given a choice between (A) whatever has been provided to him or her under the decedent’s will or (B) a life estate in all the real property owned in fee simple by the decedent at the time of his or her death.6 While the purpose of the elective share is to give the surviving spouse an expectancy in the marital partner’s real estate that cannot be deprived by will, it has never been a barrier to absolute and bona fide gifts or transfers of real property during life.7 Complications arise, however, when a married person transfers his real property into an inter vivos trust for his own benefit for life and for the benefit of someone other than his spouse after death.8 The specific issue is generally whether the settlor has retained such extensive control and ownership over the trust as to render it testamentary in character – essentially, a “will in disguise.”9 In 1997, the Rhode Island Supreme Court addressed this issue for the first time in Pezza v. Pezza.10 Looking to other jurisdictions for guidance, the court adopted the “illusory transfer test” as a means by which to analyze, on a case by case basis, whether an inter vivos transfer of real property may defeat a

5. See Appendix. 6. See R.I. GEN. LAWS § 33-25-2 to 33-25-4 (2006). 7. See Pezza v. Pezza, 690 A.2d 345, 349 (R.I. 1997) (“Because § 33-25-2 creates only an expectancy interest, a property-owning spouse is free, while he or she is alive, to transfer his or her real property without interfering with any vested right of a surviving spouse.”). 8. See J.R. Kemper, Annotation, Validity of Inter Vivos Trust Established by One Spouse Which Impairs the Other Spouse’s Distributive Share or Other Statutory Rights in Property, 39 A.L.R.3D 14, 22 (2006). 9. See id. at 18, 19. 10. Pezza, 690 A.2d at 348 (“This Court has not yet considered the question of whether an inter vivos trust can be used to defeat a surviving spouse’s statutory right to a life estate in his or her deceased spouse’s real estate.”).

surviving spouse’s statutory expectancy.11 The test required two elements: (1) a complete inter vivos transfer by conveyance that divests the spouse of all ownership in the property conveyed to the trust; and (2) proper donative intent.12 The adoption of the illusory transfer test injected uncertainty into the practice of real estate conveyancing. 13 After Pezza, every deed transferring property from a trust was potentially illusory. This raised a number of practical questions about the extent to which conveyancing attorneys and title insurers would be required to look beyond the recorded deed to the circumstances surrounding the trust’s creation.14 Two years after the Pezza decision, the Rhode Island General Assembly amended §33-25-2 by adding a subsection (b) which provides that a spousal life estate can be defeated in two steps: (1) a conveyance of real estate (2) recorded in the land evidence records prior to the transferor’s death.15 The term “conveyance” is not defined in the statute. The effect of the amendment on the illusory transfer test remained untested until early 2006 when the

11. Id. at 350 (“We adopt now the illusory transfer test as the proper test to be used when determining whether a now-deceased spouse’s inter vivos transfer of real property is sufficient to defeat a surviving spouse’s statutory share pursuant to § 33-25-2.”). 12. See id. at 349; Barrett, 894 A.2d at 896. 13. See Anthony Mignanelli, Trust Can Extinguish a Spouse’s Expectancy, R.I. B.J., Jan. 1999, at 13; see also infra note 124. 14. See id. 15. R.I. GEN LAWS § 33-25-2 (2006). Life estate to spouse: (a) Whenever any person shall die leaving a husband or wife surviving, the real estate owned by the decedent in fee simple at his or her death shall descend and pass to the husband or wife for his or her natural life subject, however, to any encumbrances existing at death; provided that the liability, if any, of the decedent to discharge the encumbrance or encumbrances shall not be impaired. The provisions of §§ 33-1-1 and 33-1-2 shall be subject to the provisions of this chapter and of § 33-1-6. (b) For purposes of this section, any real estate conveyed by the decedent prior to his or her death, with or without monetary consideration, shall not be subject to the life estate granted in subsection (a) if the instrument or instruments evidencing such conveyance were recorded in the records of land evidence in the city or town where the real estate is located prior to the death of the decedent. Nothing in this section shall be construed to require that the instrument or instruments evidencing the conveyance must be recorded prior to the death of the decedent to be valid and thus not subject to the life estate contained herein. (emphasis added).

Rhode Island Supreme Court, in Barrett v. Barrett, was faced with the question of whether the test adopted a decade earlier in Pezza had been legislatively repealed by the recent amendment.16 Answering in the affirmative, the Barrett decision represents a radical departure from past Rhode Island law and renders Rhode Island’s spousal election statute a mere paper tiger, easily evaded by changing the form, not substance, of one’s property ownership. This Note argues that the Rhode Island General Assembly should re-evaluate the state’s spousal election statute in light of concerns by advocates of both sides of the issue: those favoring continued limitations on spousal disinheritance and those advocating for testamentary freedom and the free alienability of property inter vivos. If it determines protection is still a relevant concern in Rhode Island, the General Assembly should give the statute teeth by defining “conveyance” in §33-25-2(b) as “a complete inter vivos transfer that divests the spouse of all ownership and control in the property.” To address concerns of the title bar that one should not have to look beyond a recorded deed, the General Assembly should consider adopting an “objective” approach used by Massachusetts courts, which removes from judicial consideration inquiry into motive or intention of the spouse in transferring the property.17 In short, if a testator wants to defeat his spouse’s expectancy rights, he should be required to put his real property out of his own reach. Otherwise, he should deal with the issue through a pre or post nuptial agreement. Alternatively, if the General Assembly determines that surviving spouses no longer need protection from the state, which appears to be the message of the Barrett decision, then it should do away entirely with the spousal election statute and join Georgia as the only other state that places no limits on testamentary freedom.18 In it current form, however, Rhode Island’s elective share law is senseless. No matter how Rhode Islanders might feel about the issue of whether a spouse should be protected from intentional disinheritance, they would not likely be content with an elective share system which in practice applies 16. Barrett, 894 A.2d at 892. 17. See infra II(C)(1)(c). 18. See GA. CODE ANN. §53-4-1 (2006); see also Peter H. Strott, Note, Preventing Spousal Disinheritance in Georgia, 19 GA. L. REV. 427 (1985) (discussing the unique aspects of Georgia’s probate law).

only to those not wealthy or knowledgeable enough to hire an attorney to mold their property into an allowable form. Part II of this Note places Rhode Island’s elective share law into national perspective by outlining the most common limitations on spousal disinheritance in the United States, ranging from the most protective of the surviving spouse to the least. Part III considers the Pezza and Barrett decisions in detail, while Part IV critiques the current state of Rhode Island’s elective share law and makes practical recommendations for improvement. II. PROTECTIONS AGAINST SPOUSAL DISINHERITANCE IN THE UNITED STATES

A. Introduction The nation has undergone a movement to reform spousal inheritance rights in response to the changing needs of modern families.19 High divorce rates, second marriages later in life, and greater opportunity for women in the workplace are among the factors making families less homogeneous than they once were.20 Despite these changes, however, women are still more likely than men to forego opportunities to earn income in order to raise children.21 Most would agree that a bread winning husband should not be permitted to disinherit his wife in favor of, say, a mistress, after his wife has spent years working at home raising their children. Fortunately, this type of disinheritance seems very rare.22 The more difficult question is the extent to which states should protect surviving spouses in less traditional families, such

19. See ROGER W. ANDERSON & IRA MARK BLOOM, FUNDAMENTALS OF TRUSTS AND ESTATES 245 (2005). 20. See Ralph C. Brashier, Disinheritance and the Modern Family, 45 CASE W. RES. L. REV. 83, 87, 87 n.11 (1994). 21. See Joan C. Williams, Married Women and Property, 1 VA. J. SOC. POL’Y & L. 383, 391 (1994). 22. Given the large number of articles published on the topic of spousal disinheritance, there are surprisingly few modern studies looking at how often it actually occurs. One recent study conducted in Georgia, where spousal disinheritance is permitted, looked at 2,500 wills filed in probate courts around the state and found that there were only 9 cases in which a surviving spouse objected to a provision. See Jeffrey N. Pennell, Minimizing the Surviving Spouse’s Elective Share, 32 U. MIAMI INST. ON EST. PLAN. 9-1, 911 (1998).

as in second marriages when the decedent also has children of a prior marriage. States vary greatly in where they view the limits of an individual’s autonomy to decide what to do with his or her property at death.23 This section provides a brief outline of the various approaches used to balance the competing concerns of testamentary freedom and spousal protection. B. Community Property While there is no requirement in most states that husbands and wives share their assets, a significant minority of states treat the married couple as a single entity with regard to certain assets acquired during marriage.24 In these states, husband and wife are viewed as equal partners and all property acquired by either spouse during their marriage, other than by gift or inheritance, is deemed “community property.”25 Gifts, inheritances and property brought into the marriage by either spouse are considered “separate property.”26 Upon the death of one spouse, half of the community property and all of the deceased spouse’s separate property pass by will or intestacy, while the surviving spouse is entitled to the other half of the community property and all of his or her own separate property.27 Because this system recognizes husband and wife as equal partners during life, there is no need for the state to intervene at death and impose limitations on the decedent’s testamentary freedom.28 Spouses can disinherit each other, but they cannot deprive each other of the one-half interest in their community property.29 Only nine states, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, are community property states, but they encompass more than one quarter of the country’s population.30 While community property principles are arguably the most equitable way in which to

23. 24. (2004). 25. 26. 27. 28. 29. 30. 2000).

See Appendix I. RALPH C. BRASHIER, INHERITANCE LAW

AND THE

EVOLVING FAMILY 12

ANDERSON & BLOOM, supra note 19, at 246. Id. Id. See Brashier, supra note 20, at 97. See id. JESSE DUKEMINIER ET AL., WILLS, TRUSTS, AND ESTATES 521 (6th ed.

conceive of marital property, Wisconsin is the only separate property state that has converted in whole to community property principles.31 Interestingly, Alaska, a separate property state, offers its married couples a choice of holding their property as separate or community.32 C. Separate Property In contrast to the nine community property states, the overwhelming majority of states take a title based approach to marital property.33 Under this model, whatever each spouse earns in the marketplace is his or her own unless he or she chooses otherwise.34 Therefore, the critical issue in the separate property states is what protection should be provided to a spouse who works at home raising children, caring for an elderly family member, or is employed in a lower paying job that provides health care benefits to both spouses.35 In the case of divorce, separate property states adopt equitable principles very similar to what one finds in community property states.36 Property acquired by either spouse during marriage, except by gift or inheritance, is put into the pot for division. The real difference in the two marital property systems is only evident when one spouse dies. 1. The Conventional Elective Share In every separate property state except Georgia, there are laws that guarantee the surviving spouse a portion of the deceased spouse’s estate regardless of what has been provided to him or her by will.37 These “elective share” laws present the surviving spouse 31. See generally Howard S. Erlanger & June M. Weisberger, From Common Law Property to Community Property: Wisconsin’s Marital Property Act Four Years Later, 1990 WIS. L. REV. 769 (1990) (reviewing Wisconsin’s experience transitioning from a separate to community property system). 32. See generally David G. Shaftel et al., Alaska Enacts an Optional Community Property System Which Can Be Elected by Both Residents and Nonresidents, SD36 A.L.I.-A.B.A. 1 (1999) (explaining effect of the Alaska Community Property Act). 33. See Appendix I. 34. See DUKEMINIER, supra note 30, at 472. 35. See id. 36. See Angela M. Vallario, Spousal Election: Suggested Equitable Reform for the Division of Property at Death, 52 CATH. U. L. REV. 519, 532-535 (2003) (proposing a model “Equitable Elective Share” statute that mirrors the division of property at divorce). 37. DUKEMINIER, supra note 30, at 480.

with the option of taking either under the decedent’s will or under the state’s default inheritance provision.38 The fraction of the estate subject to election and the scope of assets that can be reached vary widely from state to state, but they are all, to a certain extent, operating in the shadow of their common law ancestors, dower and curtesy.39 The common-law right of dower entitled a wife to a life estate in one-third of all real estate her husband owned during marriage, whether or not they had children.40 Curtesy, on the other hand, entitled a widower to a life estate in all land owned by his wife during marriage, but only if they had children.41 Dower and curtesy are inchoate rights that attach upon marriage and cannot be cut off without consent, and therefore create marketability of title problems.42 While elective share statutes have largely replaced dower and curtesy, the common law versions persist in some form in several states.43 The conventional elective share statute is the closest in form to dower and curtesy.44 The statutes vary from state to state, but most permit the surviving spouse to claim a fraction of the deceased spouse’s probate estate, usually one-third, which includes personal as well as real property.45 As more and more individual wealth is held in personal property, this change is sensible. The principle disadvantage of the conventional elective share statute is its inflexibility. It can both under and over protect the surviving spouse.46 It overprotects in two principal ways. First, under the conventional statute, the surviving spouse gets the same share regardless of the length of the marriage.47 The case of

38. Id. 39. Id. at 472 (While community property principles originated in France and Spain and took root in the western part of this country during colonization, dower and curtesy arrived with the English settlers to the eastern seaboard and spread westward.). 40. ANDERSON & BLOOM, supra note 19, at 255. 41. Id. 42. BRASHIER, supra note 24, at 14. 43. See DUKEMINIER, supra note 30, at 479. 44. See id. at 478; see also Appendix I. 45. See Appendix I. 46. See DUKEMINIER, supra note 30, at 483; see also Vallario, supra note 36, at 537. 47. See DUKEMINIER, supra note 30, at 483.

In re Neiderhiser Estate best illustrates this point.48 Just as a bride and groom exchanged vows, but before the minister pronounced them man and wife, the groom collapsed and died.49 The court held that a state of marriage had been created and that the bride had the status of a surviving spouse.50 Under the conventional system, she would therefore be entitled to the same fraction of the groom’s estate as if he had died after they had been married for 50 years.51 The other way in which the conventional elective share statute overprotects the surviving spouse is when he or she has already been given substantial assets through will substitutes but still elects against the will, in effect double-dipping into the estate to the detriment of other beneficiaries.52 In short, the conventional elective share statute disregards the duration of the marriage and the surviving spouse’s actual financial need. Of greater concern, however, is how the conventional elective share can under-protect a surviving spouse. The conventional system is of limited usefulness in protecting against disinheritance because it applies only to the decedent’s probate estate and is therefore easily circumvented by will substitutes.53 To protect against this type of evasion courts have developed several approaches to bring certain will substitutes back into the probate estate. a. Fraudulent Intent Test As its name implies, courts that use this approach look to the decedent’s intent in making the transfer of property to determine if it was done for the purpose of depriving the surviving spouse of his or her elective share rights.54 A relatively recent application of this approach is found in the case Hanke v. Hanke.55 There, a wife established a revocable inter vivos trust for the stated purpose of providing for both herself and her husband during life and for avoiding the cost and delay of probate at her death.56 The wife

48. 49. 50. 51. 52. 53. 54. 55. 56.

In re Estate of Neiderhiser, 2 Pa D. & C.3d 302 (Pa. Com. Pl 1977). Id. at 305. Id. at 309-10. See DUKEMINIER, supra note 30, at 483. See Vallario, supra note 36, at 536. See DUKEMINIER, supra note 30, at 500. See, e.g., Hanke v. Hanke, 459 A.2d 246 (N.H. 1983). Id. Id. at 247.

retained the right to change beneficiaries, to amend and revoke the trust, and to withdraw all of the trust estate.57 At death, ninety-eight percent of her total assets were held in the trust.58 Even though her husband was the primary beneficiary, he sought to have the transfers to the trust set aside as illusory so that the property would become part of the wife’s estate and the trust would be entitled to a substantial estate tax refund.59 The court held that even though the wife had “retained and exercised virtually absolute control over the transferred property during her lifetime,” the trust would not be set aside because it was not the wife’s purpose to deprive her husband of his rights.60 In determining fraudulent intent, courts generally consider the facts and circumstances surrounding the transfer, including the financial and personal relationship of the parties at the time of the transfer, the consideration, if any, for the transfer, and any other factor that may be relevant.61 Courts and commentators have been critical of the intent to defraud approach.62 One common criticism is that a narrow emphasis on fraudulent intent, aside from being difficult to prove, does not focus on the effect of the transfer on spousal survivorship rights: a “transfer of all his property by a married man during his life, if made with other purpose and intent than to cut off an unloved wife, is valid even though its effect is to deprive the wife of any share in the property of her husband at his death.”63 The approach has also been criticized for clouding titles and restricting the free alienation of land by “cast[ing] doubt upon the validity of all transfers made by a married man [or woman], outside of the regular course of business.”64 While criticism of the approach has 57. Id. 58. Id. 59. Id. 60. Id. at 249. 61. Id. at 248; see also In re Estate of Froman, 803 S.W.2d 176, 179 (Mo. App. 1991) ([Among the factors included are] (a) a lack of consideration for the transfer, (b) retention of control by transferor-spouse over the asset in question, (c) a transfer of disproportionately high value when compared to transferor’s total estate, (d) a lack of open and frank disclosure by the transferor spouse to the surviving spouse about the transfer, and (e) contemplation by the transferor-spouse of his imminent death.). 62. Newman v. Dore, 275 N.Y. 371, 379 (1937); W.D. MACDONALD, FRAUD ON THE WIDOW’S SHARE 98-120 (1960). 63. Newman, 275 N.Y. at 378. 64. Id. at 379.

been applied from both sides of the spousal protection - free alienation policy debate, the fraudulent intent test is still defended in some quarters.65 b. Illusory Transfer Test Rather than focusing on the transferor’s intent to defeat a spouse’s survivorship rights, the second approach focuses on control. Newman v. Dore is the most often cited case illustrating this approach.66 There, a husband transferred all of his property into an inter vivos trust three days prior to his death, but retained the power to revoke the trust, receive all the income and had complete control over the powers granted to the trustees.67 The court defined the test in terms of whether the spouse “has in good faith divested himself of ownership of his property or has made an illusory transfer.”68 An illusory transfer is one in which the transferor “intended only to cover up the fact that [he or she] is retaining full control of the property though in form he has parted with it.”69 The gist of the doctrine is that “[r]eality, not appearance should determine legal rights.”70 The Newman court concluded that the husband’s trust was illusory, but it left open the question of where to draw the line between a valid and illusory trust.71 Scholars have called the test illogical because some courts have held that the power to revoke, arguably the ultimate power, is not excessive enough to make a transfer illusory.72 A second criticism of the illusory transfer test is that while created out of dissatisfaction with inquiries into intent, by requiring a “good faith” divestiture of ownership and control, without a clear

65. See Hanke, 459 A.2d at 248 (The fraudulent intent test “attempts to reconcile the policy of permitting a spouse to freely dispose of his or her property with the policy of protecting a surviving spouse by guaranteeing him or her a portion of the deceased spouse’s estate. We believe that our test which focuses on objective manifestation of the transferor’s intent properly balances the two policies.”). 66. See generally Newman, 275 N.Y. 371 (1937). 67. Id. at 375. 68. Id. at 379. 69. Id. at 380. 70. Id. 71. Id. at 381 (“We do not attempt now to formulate any general test of how far a settlor must divest himself of his interest in the trust property to render a conveyance more than illusory.”). 72. See MacDonald, supra note 62, at 92 (“Complete ownership is at all times attainable by a stroke of his own pen.”).

definition of how much control is too much, courts may still focus heavily on the transferor’s intent and simply announce a decision on the equities of the case in terms of the control factor.73 c. The Objective Test A somewhat more recent approach preserves the illusory transfer test’s emphasis on control, but completely disregards the motive or intention of the spouse in creating the trust. This socalled objective approach was articulated in Sullivan v. Burkin.74 There, a husband executed a deed of trust transferring his real estate to himself as sole trustee.75 He retained the right to all income and principal and the power to revoke the trust at any time.76 In his will he stated that he “intentionally neglected to make any provision for [his wife and grandson].”77 While the court felt obligated to follow an earlier Massachusetts case denying a surviving spouse’s claim against an inter vivos trust over which the deceased spouse retained considerable control, it articulated a new rule for the future: The rule we now favor would treat as part of the “estate of the deceased” for the purpose of [the state’s elective share statute] assets of an inter vivos trust created during the marriage by the deceased spouse over which he or she alone had a general power of appointment, exercisable by deed or by will. This objective test would involve no consideration of the motive or intention of the spouse in creating the trust.78 The court partially based its decision on a recognition that the interests of spouses in each other’s property has increased substantially in the case of divorce and therefore “it is neither equitable nor logical to extend to a divorced spouse greater rights in the assets of an inter vivos trust created and controlled by the other spouse than are extended to a spouse who remains married until the death of his or her spouse.”79 The court concluded by

73. 74. 75. 76. 77. 78. 79.

Id. at 93-97. 390 Mass. 864 (1984). Id. at 865. Id. Id. Id. at 872. Id.

admitting that judicially crafted tests are imperfect mechanisms for enforcing the expectancy interests of surviving spouses and that the problem is best handled by legislation.80 2. The Legislative Response A. The 1969 Uniform Probate Code To address both the deficiencies of the conventional elective share statute and the judicially crafted tests used to limit disinheritance by will substitutes, the drafters of the Uniform Probate Code (“UPC”) in 1969 developed a model elective share system for state legislatures to consider.81 The 1969 UPC introduced the concept of the “augmented estate,” which encompasses not only assets in the net probate estate but also a number of nonprobate transfers made during marriage to people other than the surviving spouse.82 These include common will substitutes such as revocable inter vivos trusts, property held in joint tenancy, and even complete gifts made within two years of death exceeding a certain monetary value.83 The augmented estate concept derived from earlier legislative efforts by New York and Pennsylvania to subject certain enumerated nonprobate transfers to the elective share, an approach those states continue to this day.84 Florida, Michigan, and North Carolina have also followed the approach of making certain nonprobate transfers reachable by the surviving spouse, without going so far as adopting the UPC.85 In addition to addressing how conventional elective share statutes under protect the surviving spouse, the 1969 UPC also sought to correct the unfair practice of “double dipping” into the

80. 81.

Id. at 873. UNIF. PROBATE CODE §§ 2-201 to 207 (1969) (Westlaw); see also DUKEMINIER, supra note 30, at 507. 82. UNIF. PROBATE CODE § 2-202 (1969) (Westlaw) (The comment following §2-202 states that a principal purpose of the augmented estate is to prevent “the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of the surviving spouse to a share.”). 83. Id. 84. John W. Fisher, II & Scott A. Curnutte, Reforming the Law of Intestate Succession and Elective Share: New Solutions to Age-Old Problems, 93 W. VA. L. REV. 61, 107 (1990); ANDERSON & BLOOM, supra note 19, at 265. 85. See Appendix I.

decedent’s estate when the surviving spouse has already been adequately provided for by will substitutes.86 To prevent this result, the augmented estate also includes property the decedent gave the surviving spouse before death.87 Some commentators see the 1969 UPC, still in use by a number of states, as an improvement over the conventional elective share system, but it also still has many of its disadvantages.88 Most significantly, the 1969 UPC, like the conventional system, does not take into consideration the length of marriage or actual financial need of the surviving spouse.89 B. The 1990 Uniform Probate Code While the goal of the 1969 UPC was to remedy deficiencies in the conventional elective share system, the 1990 UPC had a broader and more fundamental ambition: “to bring elective-share law into line with the contemporary view of marriage as an economic partnership.”90 The basic principle is to gross up the wealth of both spouses, not just the decedent, and then divide it according to how long the couple has been married, with a minimum amount of $50,000.91 For example, a spouse in a long term marriage, defined as fifteen years or more, will be entitled to 50% of the gross estate should the other spouse die. On its face, the approach appears to mirror the result that would be achieved in a community property state, but significant differences remain.92 A major difference is that the 1990 UPC augmented estate encompasses a much broader range of property than would be available to a surviving spouse in a community property state. Not only does the augmented estate include gifts and inheritances

86. UNIF. PROBATE CODE § 2-202 (1969) (A second purpose of the augmented estate is “to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death by life insurance, joint tenancy assets and other nonprobate arrangements.”). 87. Id. (“[P]roperty given to the surviving spouse during life, including a life estate in a trust, and property received by the spouse at death derived from the decedent, such as life insurance and pensions.”). 88. See BRASHIER, supra note 24, at 19. 89. Id.; See generally UNIF. PROBATE CODE (1969). 90. UNIF. PROBATE CODE. art. II, pt. 2, gen. cmt. (1990). 91. See DUKEMINIER, supra note 30, at 509. 92. See id. at 511.

made during marriage, property deemed “separate” in community property states, but it also, unlike community property states, includes all property acquired prior to the marriage over which the decedent retained substantial control.93 By making no distinction between “separate” and “community” property, the UPC prevents tracing problems that occur in community property states and some commentators applaud it as the best elective share system devised to date,94 but it can also be criticized. First, as the augmented estate includes gifts, inheritances, and property acquired before marriage, it is arguably overreaching. While a marriage is an economic partnership, it is not necessarily one that relates back to birth. Another criticism of the 1990 UPC is that it is overly complex.95 If a state really wants to embrace the concept of community property, perhaps it should do as Wisconsin did and adopt community property principles wholesale, rather than artificially strain separate property principles. After all, the UPC attempts to treat spouses as economic partners, but it does so only at death, not during the marriage itself. So far, nine states have adopted the revised version of the UPC.96 3. Georgia At the other end of the spectrum is Georgia, where spouses have a statutory right to disinherit each other.97 Georgia’s statute states that as long as there is no evidence of fraud, undue influence or lack of capacity, a testator “may give all [his or her] property to strangers, to the exclusion of the testator’s spouse and descendents.”98 The land where testamentary freedom reigns has drawn the attention of commentators who assert that Georgia has stumbled upon something that the rest of the country can learn from.99 A recent study conducted there suggests that spousal

93. UNIF. PROBATE CODE. §2-205 (1990); DUKEMINIER, supra note 30, at 509. 94. See BRASHIER, supra note 20, at 113 (“In sum, the 1990 UPC elective share provisions are the best forced share alternative devised to date.”). 95. See DUKEMINIER, supra note 30, at 509. 96. See Appendix I. 97. See GA. CODE ANN. §53-4-1 (2006). 98. Id. 99. See Terry L. Turnipseed, Why Shouldn’t I be Allowed to Leave my Property to Whomever I Choose at my Death? (Or How I Learned to Stop Worrying and Start Loving the French), 44 BRANDEIS L.J. 737 (2006).

disinheritance is extraordinarily rare.100 If complete testamentary freedom does not make a person any more likely to disinherit a spouse, is there really a problem? Are the chapters devoted in law school textbooks, the countless articles written on the subject, the judicial and legislative efforts to address the issue, much ado about nothing? Is it just the principle that is being defended? The Georgia approach raises some intriguing questions and, at the very least, highlights the dearth of empirical studies out there looking at whether intentional spousal disinheritance is significant enough of a problem to justify limiting a person’s freedom to give away property at death. Even if spousal disinheritance is a de minimus problem, it is still difficult to reconcile Georgia’s approach of complete testamentary freedom when marriage ends at death with its scheme of equitable division of property when marriage ends in divorce.101 The principal rationale for protecting a spouse is equally compelling in both cases: under the “presumed contribution theory,” both spouses are viewed as making significant contributions to the “economic success” of the marriage regardless of who is earning income.102 Therefore, when one spouse dies, or the marriage ends in divorce, each spouse is entitled to a portion of the wealth accumulated during the marriage.103 It is difficult to understand why the property rights of a spouse in a “successful marriage” should be any less than those in an “unsuccessful marriage.”104 III. THE EVOLUTION OF RHODE ISLAND’S ELECTIVE SHARE LAW

A. Legislative Repeal of Dower and Curtesy Dower and curtesy have been largely abolished throughout the country and replaced by elective share statutes that trigger 100. Id. at 776 (citing a 2000 study that looked at 2,529 wills filed in probate courts around Georgia and found that that there was not one will contest and only 9 instances where is appeared that a surviving spouse objected to a will provision); see also Pennell, supra note 22, at 9-19. 101. See Strott, supra note 18, at 444; see also Stokes v. Stokes, 273 S.E.2d 169 (Ga. 1980) (holding that property acquired by either spouse during the marriage, not including gifts and inheritances, should be equitably divided between divorcing spouses regardless of who held title). 102. See Strott, supra note 18, at 434-35. 103. See id. 104. See id at 447.

various property rights, not upon marriage, but upon the death of a spouse.105 There are at least two reasons why dower and curtesy fell out of favor. The first is obsolescence: as the country shifted from an agrarian to an industrial society, less wealth was being held in land and more in personality, making an inchoate interest in real estate no longer sufficient protection.106 As a result, most states now extend the expectancy interest to both real and personal property. The second reason why dower and curtesy were abolished is that they severely interfered with the alienability of land: the inchoate rights that attached upon marriage clouded titles and created apprehension in purchasers that the prior owner’s widow would some day come knocking on the door to claim ownership. 107 The Rhode Island General Assembly abolished dower and curtesy in 1978,108 replacing them with a gender neutral statute entitling a surviving spouse to a life estate in all the real property owned by the decedent in fee simple at the time of his or her death.109 While the typical elective share statute corrects the alienation problem by making the property interest a mere expectancy during life, Rhode Island’s version is unlike most others in that it does not extend the expectancy interest to personal property.110 In essence, Rhode Island’s elective share statute is a neutered version of curtesy. Under ideal conditions, it assures a place for a surviving spouse to live for the rest of his or her life. B. Pezza v. Pezza In 1997, nearly twenty years after dower and curtesy were abolished, the first case challenging the effectiveness of the state’s elective share statute made its way to the Rhode Island Supreme Court.111

105. RESTATEMENT (THIRD) OF PROP. §9.1, cmt. c. 106. See BRASHIER, supra note 20, at 91-93. 107. Ariela R. Dubler, In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State, 112 YALE L.J. 1641, 1669 (2003). 108. R.I. GEN. LAWS §33-25-1 (dower and curtesy abolished). 109. R.I. GEN. LAWS §33-25-2 (life estate to spouse). 110. See Appendix. 111. See Pezza, 690 A.2d 345.

1. Facts and Analysis Anthony and Olga Pezza were married in 1973.112 Anthony was a widower, with two children from his first marriage, and Olga was a divorcee.113 Ten years into their marriage, Anthony did some estate planning. First, he created an inter vivos trust, naming himself as trustee, his son as successor trustee, and conveyed into this trust certain parcels of real estate he acquired prior to his marriage to Olga, as well as shares of stock in his garage door business.114 Anthony retained the power to revoke the trust, demand payments of the principal, and he occupied one of the parcels as his martial estate and collected rents from the others.115 His will, executed with the trust, contained a “pour over” provision, directing that any remaining assets be placed into the trust upon his death.116 The attorney who drafted the documents testified that Anthony’s intent at the time was to honor his first wife’s “deathbed promise” that his children receive the majority of his property, while allowing Olga to retain possession of their jointly held property, including a Florida residence, inherited from Anthony’s mother, and several bank accounts.117 After a dispute with Olga in 1986, Anthony resigned as trustee of the trust, appointed his son as successor trustee and waived his power of revocation.118 Shortly thereafter, Olga filed for divorce.119 In response, Anthony took the additional step of disclaiming his power to demand payment of the trust principal.120 The divorce action was presumably discontinued and in 1990 Anthony died testate, still married to Olga.121 Olga filed suit in Superior Court contending that Anthony’s inter vivos trust was an intentional effort to defraud her of the spousal life estate created by § 33-25-2 and should be declared “invalid” by the court.122 As the issue was one of first impression

112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122.

Id. at 346. Id. Id. Id. Id. at 347. Id. at 346 n.2. Id. at 347. Id. Id. Id. Pezza v. Pezza, 1994 WL 930902 at *2 (R.I. Super. 1994).

in Rhode Island, the trial judge looked to other jurisdictions for guidance. Finding the “illusory transfer test” the preferable approach, the Superior Court judge applied it to the facts and concluded that whatever his intention may have been in establishing the trust, the actions Anthony took in 1986 to divest himself of ownership and control “eliminated any question that the trust was a sham or illusory.”123 The Rhode Island Supreme Court unanimously affirmed the decision and adopted the illusory transfer test as the proper test to be used when determining whether a deceased spouse’s inter vivos transfer of real property is sufficient to defeat a surviving spouse’s statutory share.124 The court clarified, however, one important point left open by the Superior Court decision. A good faith divestment of some ownership interest in the property was clearly not enough: In order for a transfer of real property to a trust to be real, valid, and nonillusory, the spouse transferring the property must effectuate a completed inter vivos transfer by conveyance that both divests him or her of all ownership in the property and that, also, at the time of conveyance, is made with the proper donative intent.125 C. 1999 Amendment Shortly after the Pezza decision came down, two pieces appeared in the Rhode Island Bar Journal suggesting that the court’s adoption of the illusory transfer test had caused concern among some segments of the bar.126 The first piece raised a number of questions about the potential impact of the decision on land conveyancing.127 The second piece indicated that the 123. Id. at 5. 124. Pezza, 690 A.2d at 350. 125. Id. at 349 (emphasis added). 126. See Mignanelli, supra note 13, at 11; David T. Riedel, Feature: Bar Association Committee Reports, Probate and Trust Committee, 47 R.I. B.J. 15 (1999). 127. See Mignanelli, supra note 13, at 13 (“For example, how does a conveyancing attorney verify if the settlor is single or widowed and whether or not the real estate in that trust was subject to a surviving spouse’s life estate? … Also, does a bona fide purchaser for value from a trustee automatically take title free and clear without the threat of a surviving spouse’s life estate attaching to the real estate? … Finally, are conveyancing attorneys required to: verify if the settlor of the trust is still living; verify

Committee on Probate and Trust, together with the Title Standards Committee, had drafted legislation that “would clarify the current law creating life estates of surviving spouses” in the wake of the Pezza decision, but that the status of the bill was unclear.128 Rhode Island does not record legislative history so it is unclear what kind of debate took place in the General Assembly over the issue. Later that year, however, §33-25-2(b)129 was enacted, which provides that the surviving spouse’s life estate expectancy can be defeated so long as the real estate is “conveyed” and recorded in the land evidence records prior to the decedent’s death. The statute then reads, in an apparent contradiction, that recording the deed is not a necessary element. Not only is one of the two required elements apparently not required, but the General Assembly did not define the meaning of conveyance, which has a narrow legal definition (“[t]he voluntary transfer of a right or of property”)130 and a broader definition (“[t]he transfer of title to property from one person to another”)131 that most lay people associate with the word. In short, the words Justice Jackson used to describe the problem of executive power seem equally as applicable to Rhode Island’s amended elective share statute: “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”132

whether the settlor was single or married; verify whether the settlor’s spouse, if he/she was married, is still living or has died; and if the spouse of the settlor has died; and, verify that he/she had not instituted any proceeding to claim a life estate in trust real estate pursuant to § 33-23-2?”). 128. Riedel, supra note 126. 129. R.I. GEN. LAWS § 33-25-2(b). For purposes of this section, any real estate conveyed by the decedent prior to his or her death, with or without monetary consideration, shall not be subject to the life estate granted in subsection (a) if the instrument or instruments evidencing such conveyance were recorded in the records of land evidence in the city or town where the real estate is located prior to death of the decedent. Nothing in this section shall be construed to require that the instrument or instruments evidencing the conveyance must be recorded prior to the death of the decedent to be valid and thus not subject to the life estate contained herein. 130. BLACK’S LAW DICTIONARY 357 (2d ed. 2001) (emphasis added). 131. THE AMERICAN HERITAGE DICTIONARY 128 (4th ed. 2000). 132. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J., concurring).

D. Barrett v. Barrett Rhode Island’s new elective share statute was bound to be litigated. It took seven years for the Court to be faced with the now familiar factual scenario: a widower, with grown children from a prior marriage, remarries a younger woman. Shortly after remarrying, he restructures his estate plan. He would like his children to inherit the real property he acquired while still married to his first wife, preferring to provide for his second wife under his will. The elective share law of the state would frustrate that goal, so he transfers the property into an inter vivos trust over which he retains rights roughly equivalent to ownership in fee simple. When he dies, his second wife, unsatisfied with what has been left to her under his will, challenges the trust on the grounds that it nothing more than a will in disguise. In light of the 1999 amendment, may the court still probe the validity of the trust using the “illusory transfer test?” 1. Facts and Travel The Barrett Court notes initially that the deceased, Horace, was married to his first wife, Nancy, for fifty-two years before she died in 1997, and during this long marriage they had five children.133 In 1976, twenty years before Nancy’s death, the couple bought a single family home on Prudence Island in Portsmouth, Rhode Island.134 The year after Nancy’s death, Horace married the plaintiff, Jane. At the time of their marriage Horace was seventy-four years old and Jane was forty-one.135 Horace then did some estate planning. He executed a will in which he bequeathed to Jane certain personal property, an amount of money measured by the length of marriage at the time of Horace’s death, and a proportional share in the residue of the estate so long as they were married for five years at the time of his death.136 He noted in his will that the “relatively small size of the bequest does not reflect my lack of regard or affection for [Jane] but rather my prior obligation to the children and grandchildren of my first wife, [Nancy], as I still feel that fifty percent of my

133. 134. 135. 136.

Barrett, 894 A.2d at 893. Id. Id. at n.3. Id. at 893.

estate is hers.”137 Horace also created a revocable inter vivos trust between himself as donor and two of his children as co-trustees.138 By quitclaim deed, he conveyed a life estate in the Prudence Island property to himself with a remainder to the co-trustees.139 Significantly, he retained the “full power to sell, mortgage, convey or otherwise encumber the life estate and the remainder.”140 One month after creating the trust he amended its terms to totally exclude Jane from a share in the residuary trust estate.141 The cotrustees, however, were still required to satisfy the specific monetary bequest to Jane under his will.142 Horace died in 2003 after he and Jane had been married for a little over four years.143 Rather than take the monetary bequest made to her under Horace’s will, Jane elected to exercise her statutory right to a life estate in the real estate owned by Horace at his death.144 Finding the real estate insulated by the trust, Jane brought suit against the trustees in Superior Court seeking a declaration of her rights in the Prudence Island property.145 Her principal argument was that Horace’s conveyance to the trust was illusory since during his life he retained the functional equivalent of fee simple ownership.146 Horace’s children countered that Horace did not own the property in fee simple at the time of his death, but more importantly, that the §33-25-2(b) amendment overruled the illusory transfer test adopted in Pezza.147 2. The Court’s Analysis Given the “conflicting criteria” of what is required to defeat a surviving spouse’s statutory expectancy under the illusory transfer test and under §33-25-2(b), the court sought to determine whether the General Assembly intended for the two standards to co-exist or for §33-25-2(b) to replace the judicially crafted test.148 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148.

Id. Id. Id. Id. Id. Barrett, 894 A.2d at 893. Id. Id. at 894. Id. Id. Id. Id.

Noting that it would not be the first time the General Assembly has enacted legislation to supplant a judicial pronouncement, the court concluded that the timing of the amendment and the fact that it does not include the elements of complete divestiture and proper donative intent could mean only one thing: §33-25-2(b) was meant to repeal the illusory transfer test.149 The court stated “the General Assembly has spoken in the clearest of terms, and has declared that the only predicate to defeating a surviving spouse’s right to a life estate is a conveyance of the real estate that is recorded prior to death.”150 As to the fact that the legislature did not define the term “conveyance,” the court reasoned that it could not qualify the plain meaning of the term, which Black’s Law Dictionary defines as “[t]he voluntary transfer of a right or of property.”151 If the General Assembly intended to limit the type of conveyance, the court reasoned, it could have adopted, for example, the Uniform Probate Code’s augmented estate approach.152 The court proceeded to apply the broad language of the amendment to the facts. Even though Horace retained the power to “sell, mortgage, convey or otherwise encumber the life estate and the remainder,” he did not do so and therefore for the purposes §33-25-2(a) and (b), the conveyance to the trust was complete.153 The court concluded by noting that although not “crucial to the outcome,” the result was consistent with Horace’s intent that the Prudence Island property pass to the children of his first marriage.154 Justice Robinson dissented, but he did not take issue with the majority’s conclusion that the General Assembly enacted §33-252(b) in response to Pezza, nor its right to do so.155 His dissent took aim at the language of the amendment, specifically the phrase, “any real estate conveyed by the decedent,” which he argued was not broad enough to encompass a transfer in which the transferor retains the right to convey both the life estate and the remainder

149. 150. 151. 152. 153. 154. 155.

Id. at 895. Id. at 898. Id. (quoting BLACK’S LAW DICTIONARY 357 (8th ed. 2004)). Id. at 898-99. Id. at 899. Id. Id. at 900 (Robinson, J., dissenting).

interest.156 In his words, “[a]t the risk of sounding simplistic, my view is that one has not actually ‘conveyed’ if the grantor specifically retains the right to convey to some other person or entity – even though it turns out that the grantor opts not to exercise that retained right to convey in his or her lifetime.”157 IV. ANALYSIS AND RECOMMENDATIONS

The Barrett decision is a dramatic, unexplained departure from past law. However one views the change, it is now extremely easy to disinherit a spouse in Rhode Island. Barrett provides the roadmap: simply transfer your real estate into an inter vivos trust, structure it as to retain essentially the same control over the property as if it were held outright, record the deed and rest easy that it will be out of reach. Note that a married person with the same intention of maintaining control over real property during life and devising it to someone other than a spouse at death will be frustrated by the elective share statute if the devise is attempted through a simple will. Therefore, Rhode Island’s elective share statute, as interpreted in Barrett, values form over substance and rewards only those who have the means or knowledge to comply with its technical requirements without demanding any substantive divestiture. In other words, a married person can have his cake and eat it too, so long as he jumps through the loophole once closed by Pezza, but reopened by the 1999 amendment. Would Rhode Islanders really favor the kind of elective share statute that the General Assembly has enacted? If it genuinely believes that spousal disinheritance is not a legitimate concern, as the Barrett decision suggests, then the General Assembly should abolish the elective share statute altogether and join Georgia as the only other state that allows spouses to freely disinherit each other. There are some cogent arguments for following Georgia’s lead. Chief among them is that nonconsensual disinheritance appears to be extremely rare.158 Almost all disinheritance, then, according to at least one study in Georgia happens with the disinherited spouse’s consent for reasons such as tax and public

156. 157. 158.

Id. Id. at 901. See Pennell, supra note 22, at 9-19.

benefits planning. 159 Even if this is true, a decision to abolish the elective share statute should not be made until there has been some meaningful debate that includes advocates from both sides of the issue. One only needs to look as far as Massachusetts to see an example of the kind of debate that should be occurring over the issue of spousal disinheritance. As discussed supra, Massachusetts adopted an objective version of the illusory transfer test in the 1984 decision Sullivan v. Burkin,160 the equivalent of Rhode Island’s Pezza decision. It did so in order to close the loophole created by Kerwin v. Donaghy,161 a 1945 case that held that assets in a revocable trust created by a deceased spouse could not be reached by the surviving spouse under the state’s elective share statute. Interestingly enough, Rhode Island’s law on the issue of spousal disinheritance has devolved to where Massachusetts law was in 1945. In any case, several years ago, in Bongaards v. Millen,162 members of the Massachusetts Supreme Court, faced with another disinheritance case, took the opportunity to consider the proper role of the legislature and the judiciary in shaping public policy and gave thoughtful consideration to several proposed solutions to enhance the effectiveness of the state’s “outdated and inadequate” elective share statute.163 The majority opinion in Bongaards acknowledged that the judiciary should have some role in interpreting statutory language, but concluded that the legislative branch should have the primary role in forming public policy.164 If the legislature does act, however, as it has in Rhode Island, then there is a responsibility to formulate a comprehensive solution to the problem, one that considers the concerns of all those who will be affected. Otherwise, the legislature should leave it to the courts to do what they do best: resolve complex factual problems on a case by case basis through the common law process. It is one thing to limit judicial discretion as the General Assembly has done through enacting §33-25-2(b), but fashioning a bright line solution 159. 160. 161. 162. 163. 164.

Turnipseed, supra note 99, at 776. Sullivan v. Burkin, 390 Mass. 864 (1984). 317 Mass. 559 (1945). 440 Mass. 10 (2003). Id. at 34. Id.

to only one half of a social problem will one day require the court to enforce inequitable results. As it turns out, the facts of Barrett weigh against the plaintiff. The age discrepancy between the plaintiff and the decedent, the relative brevity of their marriage compared with the length of the decedent’s first marriage, and the large number of children from that first marriage, make the outcome somewhat palatable. But a slight change in the facts might lead to a much more inequitable result. One can only hope that a Rhode Island court is not presented with a summary judgment motion in a case in which a decedent uses a revocable trust to disinherit his wife of fifty-two years and five children in favor of much younger woman he knew for only four years. Such a fact pattern will decidedly lay bare how meaningless the protections provided by Rhode Island’s elective share statute really are. If the General Assembly decides that Rhode Islanders still want some form of elective share statute to protect a spouse from disinheritance, then it must find one that provides meaningful protection while, at the same time, not unduly interfering with real estate transactions. Theoretically, the best solution would be to adopt a Uniform Marital Property Act as Wisconsin has and become a community property state. It is the only way to treat marriage as an economic partnership during the marriage because it recognizes the contribution of both spouses to household welfare regardless of how property is titled. Moreover, it does not overreach or automatically co-mingle property independently acquired before the marriage or by gift and inheritance. If Rhode Island were a community property state, the result in Barrett might have been the same, but at least the plaintiff’s four year commitment to the decedent would have been acknowledged. To be practical, though, Rhode Island is not likely to become a community property state. There are probably very good reasons why only one separate property state has adopted community property principles outright. Tracing is a problem in community property states, but the reluctance probably has more to do with perceived or actual difficulty in transitioning between the two systems. Further research as to why more separate property states have not adopted community property principles might be valuable. After all, it seems strange that the fortuitousness of whether an area was colonized by Spain or England should continue to dictate how states conceive of marital property in the

twenty first century. Rhode Island could also adopt either the original or revised version of the UPC, as many states have. There does not appear to be the same reluctance to adopting the UPC as there is to the outright adoption of community property principles. As it is, more separate property states than not have some form of augmented estate approach. In New England, despite relatively progressive laws regarding who may marry, the area is still very traditional with regard to marriage’s effect on property ownership. Maine is the only New England state so far to have adopted some form of augmented estate approach.165 A full evaluation of the UPC augmented estate approach is beyond the scope of this Note and there are a number of very informative articles available on the issue.166 In general, though, while the UPC augmented estate concept is heralded as better than anything else devised to date, it makes it impossible for people to maintain any separate property because all property acquired before and after the marriage is included in the pot for division.167 This may be desirable for first time marriages, but not necessarily for later marriages in cases where the couple have already lived the majority of their lives. In any event, it may be howling at the moon to suggest that the Rhode Island General Assembly would adopt UPC principles given its current position on the issue, which is as far removed from the UPC philosophy as possible. The Barrett decision, itself, uses the General Assembly’s non-adoption of the UPC as evidence that it did not intend to limit the type of conveyance necessary to defeat a surviving spouse’s life estate.168 This makes it is an unlikely solution for the near future. The most pragmatic solution at this juncture would be to define “conveyance” in §33-25-2(b) in such a way as to make the elective share statute meaningful while at the same time preventing land title problems. This would be consistent with the spirit of Justice Robinson’s dissent.169 One way to go about it is to 165. See Appendix; ME. REV. STAT. ANN. tit. 18-A, §§2-201 to 207. 166. See generally Lawrence H. Averill, Jr., An Eclectic History and Analysis of the 1990 Uniform Probate Code, 55 ALB. L. REV. 891 (1992). Lawrence W. Waggoner, Spousal Rights in our Multiple Marriage Society: The Revised Uniform Probate Code, 26 REAL PROP. PRON. & TR. J. 683 (1992); Fisher and Curnutte, supra note 84. 167. See DUKEMINIER, supra note 30, at 509. 168. Barrett, 894 A.2d at 899. 169. See generally id. at 900 (Robinson, J., dissenting).

make §33-25-2(b) compatible with the illusory transfer test adopted in Pezza by defining conveyance as “a completed inter vivos transfer that divests the transferor of all ownership and control in the property.”170 Whether or not a person has divested himself of all ownership and control in the property should be sufficiently apparent from the deed. The General Assembly could then do as Massachusetts did and make the test objective by eliminating the proper donative intent requirement, which is difficult to apply and may cloud titles transferred out of trusts.171 This is not to say that a trust could not be invalidated under traditional competency doctrines such as undue influence, just that a court will not consider the settlor’s intent in conveying the property. In sum, as long as the property is put entirely out of the transferor’s reach, then the surviving spouse will have no claim. The proposed definition of conveyance addresses the form over substance issue, provides more protection for a surviving spouse than is currently available, and makes it relatively clear from the deed whether the property may be subject to the elective share statute. That said, it is not without problems inherent to a compromise between the two conflicting policy considerations of spousal protection and free alienability of property. For example, a complete conveyance definition would not prevent deathbed gifts of real estate with the intent of disinheriting a spouse. Courts, therefore, would still be powerless to prevent the most inequitable type of disinheritance. The General Assembly could also prospectively close whatever loopholes in §33-25-2(a) a clever lawyer might find by defining “real estate owned by the decedent” as including certain nonprobate transfers, preferably those visible on the face of a deed. This might include, for example, real estate held in joint tenancy with someone other than the spouse. Other nonprobate transfers that are commonly included but which might create title problems are gifts causa mortis, or transfers of property made within two years of death that would be subject to estate or gift taxation. As mentioned previously, a significant number of states have developed their own individually tailored augmented estate models, without going so far as adopting the UPC. Rhode Island is in a position to do the same. 170. 171.

Pezza, 690 A.2d at 349. See supra section IV.

V. CONCLUSION

Rhode Island’s elective share statute needs to be revisited. Only the General Assembly has the ability to hold hearings and gather information to draft a bill that will balance the interests of both the title industry and surviving spouses. It is evident from Barrett that the General Assembly only considered the former interest in 1999 when it enacted §33-25-2(b). It is one thing for the General Assembly to permit spousal disinheritance, but it is another to do so without considering the majority of Rhode Islanders who are probably both unaware of the loophole and unable to afford an attorney to transmute their property into the allowable form. Given the range of models currently in use throughout the nation to protect surviving spouses, Rhode Island’s legislature can do a better job of developing a solution that is in the best interest its citizens. The solution may be as easy as providing a definition of “conveyance” that provides enhanced protection to surviving spouses without unduly interfering with land conveyancing. Or it may require something more. In the absence of a comprehensive solution to the problem, the General Assembly should free the courts to decide each case on its merits, as was required under Pezza. We will get more equitable, consistent results through the common law process than through application of our new, regressive elective share statute. Kenneth Rampino∗

∗

Juris Doctor Candidate, Roger Williams University School of Law (May 2008). Special thanks to Professor Bruce Kogan and my father Kenneth J. Rampino, Esq. for their valuable advice.

APPENDIX

State

Inheritance Model

Alabama

Conventional Elective Share

Alaska

Choice between original UPC or community property

Arizona

Community Property Modified Dower/ Curtesy

Arkansas

Elective Share Statute ALA. CODE § 43-8-70 (LexisNexis 1975).

ALASKA STAT. §§ 13.12.202; 34.77.030 (2006).

ARK. CODE ANN. § 2839-401 (1987).

Statutory Share

Lesser of (1) decedent’s estate reduced by value of surviving spouse’s separate estate or (2) 1/3 of decedent’s estate. One-third of augmented estate or as provided by community property agreement.

Requirement that spouses be married for more than one year. If the surviving spouse is a

woman, dower in husband’s real and personal property as if he died intestate. If the surviving spouse is a man, curtesy interest in real and personal property as if she died intestate. California

Community Property 1990 UPC

Colorado

COLO. REV. STAT. §§ 1511-201 -1511-207 (2006). CONN. GEN. STAT. ANN. § 45a-436(a) (West 1958).

Ten year maximum accrual to achieve 50% of augmented estate.

Connecticut

Conventional Elective Share

Delaware

Non-uniform Augmented (Estate defined by estate tax law)

DEL. CODE ANN. tit. 12, §§ 901; 902 (1974).

One-third of “elective estate” less transfers to surviving spouse by decedent. Elective estate means gross estate for federal estate tax purposes.

Conventional Elective Share Non-uniform Augmented

D.C. CODE § 19-113 (2001). FLA. STAT. ANN. §§ 732.2035; 732.2065 (West

Intestate share, not to exceed ½ of net estate.

District Columbia Florida

of

Life estate of 1/3 value of all property passing under will, after payment of debts and expenses.

Thirty percent of “elective estate.” Property entering elective estate includes (1)

Georgia

None

2005).

decedent’s probate estate, (2)”pay on death” accounts, (3) fractional interest in joint tenancy, (4) property transferred by decedent to extent transfer was revocable by decedent alone or in conjunction with another person, (5) property transferred over which decedent had right to possession, use, income, principal or like (6) any beneficial interest in insurance on decedent’s life, (7) the value of any public or private pension or similar arrangement, and (8) most property transferred during the one year preceding the decedent’s death.

GA. CODE ANN. § 53-41 (1997).

A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator’s spouse and

descendants. Hawaii

1990 UPC

Idaho

Community Property

Illinois

Conventional Elective Share

Indiana

Conventional Elective Share

Iowa

Conventional Elective Share

HAW. REV. STAT. ANN. §§ 560:2201-560:2209 (LexisNexis 2005). IDAHO CODE ANN. § 15-2201 (1949).

755 ILL. COMP. STAT. ANN. 5/2-8 (LexisNexis 1993). IND. CODE ANN. § 29-13-1 (West 1999).

IOWA CODE ANN. § 633.238 (West 1991).

Applies augmented estate to quasicommunity property. One-third of estate if testator leaves a descendant; onehalf if testator leaves no descendant. One-half net personal and real estate. However, if surviving spouse is a second or subsequent spouse who did not have children with decedent and decedent has surviving issue, 1/3 of net personal estate plus 25% of fair market value of real property less value of liens and encumbrances. a. One-third value of all legal real property possessed by the decedent at any time during the marriage,

which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no relinquishment of right. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all other personal property of the decedent that is not necessary for the payment of debts and charges. Kansas

1990 UPC

Kentucky

Conventional Elective Share

Louisiana

Community Property Original UPC

Maine

Maryland

Conventional Elective Share

KAN. STAT. ANN. §§ 596a202 -596a207 (2005). KY. REV. STAT. ANN. § 392.080 (LexisNexis 1999).

ME. REV. STAT. ANN. tit. 18-A, §§ 2-201 -207 (1964). MD. CODE ANN., EST. & TRUSTS §

One-third of real estate.

One-third of augmented estate

One-third of net estate if there is also surviving

Massachusetts

Conventional Elective Share

Michigan

Non-uniform Augmented

3-203 (LexisNexis 1974). MASS. GEN. LAWS ANN. ch. 191, § 15 (West 2004).

MICH. COMP. LAWS ANN. § 700.282 (West 2002).

issue, or ½ of net estate is there is no surviving issue. One-third of personal and real property if decedent left issue. If no issue, surviving spouse entitled to $25,000 and ½ remaining real and personal property. One-half of estate or share that would have passed if testator died intestate, reduced by ½ of value of all property derived by the spouse from the decedent through inter vivos transfers. “Property derived by the spouse from the decedent” includes the following: (a) transfers made within 2 years of decedent’s death to the extent transfer is subject to federal gift or estate tax, (b) transfers made before death subject to a power retained by decedent which would make the property subject to federal estate tax,

and (c) transfers effectuated by death of decedent through joint ownership, tenancy by entireties, insurance beneficiary, or similar means. Minnesota

1990 UPC

Mississippi

Conventional Elective Share

Missouri

Conventional Elective Share

MO. ANN. STAT. §§ 474.160; 474.163 (West 1992).

Montana

1990 UPC

Nebraska

Original UPC

MONT. CODE ANN. §§ 72-2-221 -226 (2005). NEB. REV. STAT. §§ 302313 - 302319 (2004).

Nevada

Community Property Conventional Elective Share

New Hampshire

MINN. STAT. ANN. §§ 524.2-201 524.2-209 (West 2000). MISS. CODE ANN. § 91-525 (West 1972).

N.H. REV. STAT. ANN. § 560:10

Real and personal property surviving spouse would have received through intestacy, capped at 50%. One-half of estate if no lineal descendents; otherwise, 1/3 of estate. Share reduced by decedent’s inter vivos transfers to surviving spouse.

One-half of augmented estate.

One-third of personal and real estate if there are

(2006).

New Jersey

Original UPC

New Mexico

Community Property Non-uniform Augmented

New York

N.J. STAT. ANN. §§ 3B:8-1 3B:8-19 (West 1983).

N.Y. EST. POWERS & TRUSTS LAW §§ 51.1-A (McKinney 1999).

children of the deceased surviving or issue of any deceased children. If no children or issue, but surviving parents or siblings, $10,000 value in personal and real estate plus ½ of remainder. If no children, issue, parents, or siblings, $10,000, plus $2,000 for each year of marriage and ½ of remainder. One-third of augmented estate, also available to domestic partner.

Greater of $50,000 or 1/3 of net estate, including enumerated nonprobate transfers, including (a) gifts causa mortis, (b) gifts of property within one year of death not excludible from taxable gifts, (c) savings account trusts, (d) decedent’s share of joint bank

North Carolina

Non-uniform Augmented

N.C. GEN. STAT. §§ 303.1 - 30-3.6 (2005).

accounts, (e) joint tenancies and tenancies by the entireties, (f) transfers of property over which decedent enjoyed possession, income, retained power to revoke, consume, invade or dispose of the principal, (g) pension plans, (h) any property over which decedent had a general power of appointment. One-third or onehalf of “total net assets,” depending upon whether decedent has surviving children. Total net assets include (a) decedent’s real and personal property, (b) share of joint tenancies and tenants by entirety, (c) value of property includible in taxable estate, (d) gifts to donees other than surviving spouse, excluding those within the annual gift tax exclusion, gifts to which the

surviving spouse consented, and gifts made prior to marriage, (e) proceeds from retirement or pension plans. North Dakota

1990 UPC

Ohio

Conventional Elective Share

Oklahoma

Conventional Elective Share

Oregon

Conventional Elective Share

Pennsylvania

Non-uniform Augmented

N.D. CENT. CODE §§ 30.1-05-01 30.1-05-07 (1996). OHIO REV. CODE ANN. § 2106.01 (West 2005).

OKLA. STAT. ANN. tit. 84, § 44 (West 1990). OR. REV. STAT. §§ 114.105, 114.125 (1990).

20 PA. CONS. STAT. § 2203 (West 2005).

One-half of net probate estate, unless two or more of decedent’s lineal descendents survive, in which case surviving spouse takes 1/3 of probate estate. Intestate share or ½ of probate estate. One-quarter of net estate reduced by value of property given to the surviving spouse under decedent’s will. Elective share amount plus non-probate transfers to surviving spouse may not exceed ½ of decedent’s total property. One-third of the following property: (1) property passing from decedent by will or

Rhode Island

Conventional Elective Share

R.I. GEN. LAWS § 3325-2 (2006).

intestacy, (2) life estate in property conveyed by decedent during life to extent decedent had use of the property, an interest in it, or power to withdraw the income, (3) property conveyed by decedent during life to extent decedent had power to revoke, consume, invade, or dispose of principal for own benefit, (4) property held in joint tenancy, (5) annuity contracts purchased during marriage from which decedent received payments at time of death, (6) property conveyed by decedent during marriage and within one year of death with aggregate value exceeding $3,000 at time of conveyance. Life estate in all real estate owned in fee simple at decedent’s death, not including any real estate conveyed and

South Carolina

Conventional Elective Share

S.C. CODE ANN. §§ 622-201, 62-2202 (1976).

South Dakota

1990 UPC

Tennessee

Conventional Elective Share

S.D. CODIFIED LAWS §§ 29A-2-201 29A-2-213 (1997). TENN. CODE ANN. § 31-4101 (West 2001).

Texas

Community Property 1990 UPC

Utah

Vermont

Virginia

Conventional Elective Share Original UPC

Washington

Community

UTAH CODE ANN. §§ 752-201 - 752-214 (2002). VT. STAT. ANN. tit. 14, §401 (2002). VA. CODE ANN. §§ 64.1-16 64.1-16.2 (2002).

recorded during decedent’s life. One-third of probate estate, meaning property passing under the decedent’s will plus decedent’s property passing by intestacy.

Between 10% and 40% of net estate depending upon length of marriage reduced by inter vivos transfers to the surviving spouse.

One-third of deceased spouse’s personality. One-third of augmented estate if decedent left surviving children or their descendants; otherwise, ½ of augmented estate.

West Virginia

Property 1990 UPC

Wisconsin

Community Property (adopted)

Wyoming

Conventional Elective Share

W.VA. CODE §§ 42-3-1 42-3-6 (LexisNexis 2004). WIS. STAT. ANN. §§ 861.02; 861.03 (West 2002). WYO. STAT. ANN. § 2-5101 (2005).

Fifty percent of augmented deferred marital property estate.

One-half if there are no surviving issue of the decedent, or if the surviving spouse is also a parent of any of the surviving issue of the decedent; or one-fourth, if the surviving spouse is not the parent of any surviving issue of the decedent.

State

Inheritance Model

Alabama

Conventional Elective Share

Alaska

Choice between original UPC or community property

Arizona

Community Property Modified Dower / Curtesy

Arkansas

California Colorado

Community Property 1990 UPC

Elective Share Statute ALA. CODE § 43-8-70 (LexisNexis 1975).

ALASKA STAT. §§ 13.12.202; 34.77.030 (2006).

Statutory Share

Lesser of (1) decedent’s estate reduced by value of surviving spouse’s separate estate or (2) 1/3 of decedent’s estate. One-third of augmented estate or as provided by community property agreement.

ARK. CODE ANN. § 2839-401 (1987).

Requirement that spouses be married for more than one year. If the surviving spouse is a woman, dower in husband’s real and personal property as if he died intestate. If the surviving spouse is a man, curtesy interest in real and personal property as if she died intestate.

COLO. REV. STAT. §§ 1511-201 -15-

Ten year maximum accrual to achieve 50% of

101

11-207 (2006). CONN. GEN. STAT. ANN. § 45a-436(a) (West 1958).

augmented estate.

Connecticut

Conventional Elective Share

Delaware

Non-uniform Augmented (Estate defined by estate tax law)

DEL. CODE ANN. tit. 12, §§ 901; 902 (1974).

One-third of “elective estate” less transfers to surviving spouse by decedent. Elective estate means gross estate for federal estate tax purposes.

Conventional Elective Share Non-uniform Augmented

D.C. CODE § 19-113 (2001). FLA. STAT. ANN. §§ 732.2035; 732.2065 (West 2005).

Intestate share, not to exceed ½ of net estate.

District Columbia Florida

of

Life estate of 1/3 value of all property passing under will, after payment of debts and expenses.

Thirty percent of “elective estate.” Property entering elective estate includes (1) decedent’s probate estate, (2)”pay on death” accounts, (3) fractional interest in joint tenancy, (4) property transferred by decedent to extent transfer was revocable by decedent alone or in conjunction with another person, (5) property transferred over which decedent

had right to possession, use, income, principal or like (6) any beneficial interest in insurance on decedent’s life, (7) the value of any public or private pension or similar arrangement, and (8) most property transferred during the one year preceding the decedent’s death.

Georgia

None

GA. CODE ANN. § 53-41 (1997).

Hawaii

1990 UPC

Idaho

Community Property

HAW. REV. STAT. ANN. §§ 560:2201-560:2209 (LexisNexis 2005). IDAHO CODE ANN. § 15-2201 (1949).

Illinois

Conventional Elective

755 ILL. COMP. STAT.

A testator, by will, may make any disposition of property that is not inconsistent with the laws or contrary to the public policy of the state and may give all the property to strangers, to the exclusion of the testator’s spouse and descendants.

Applies augmented estate to quasicommunity property. One-third of estate if testator leaves a

Share

Indiana

Conventional Elective Share

Iowa

Conventional Elective Share

ANN. 5/2-8 (LexisNexis 1993). IND. CODE ANN. § 29-13-1 (West 1999).

IOWA CODE ANN. § 633.238 (West 1991).

descendant; one-half if testator leaves no descendant. One-half net personal and real estate. However, if surviving spouse is a second or subsequent spouse who did not have children with decedent and decedent has surviving issue, 1/3 of net personal estate plus 25% of fair market value of real property less value of liens and encumbrances. a. One-third value of all legal real property possessed by the decedent at any time during the marriage, which have not been sold on execution or other judicial sale, and to which the surviving spouse has made no relinquishment of right. b. All personal property that, at the time of death, was in the hands of the decedent as the head of a family, exempt from execution. c. One-third of all other personal property of the

decedent that is not necessary for the payment of debts and charges. Kansas

1990 UPC

Kentucky

Conventional Elective Share

Louisiana

Community Property Original UPC

Maine

Maryland

Conventional Elective Share

Massachusetts

Conventional Elective Share

Michigan

Non-uniform Augmented

KAN. STAT. ANN. §§ 596a202 -596a207 (2005). KY. REV. STAT. ANN. § 392.080 (LexisNexis 1999).

ME. REV. STAT. ANN. tit. 18-A, §§ 2-201 -207 (1964). MD. CODE ANN., EST. & TRUSTS § 3-203 (LexisNexis 1974). MASS. GEN. LAWS ANN. ch. 191, § 15 (West 2004).

MICH. COMP. LAWS ANN. § 700.282 (West 2002).

One-third of real estate.

One-third of augmented estate

One-third of net estate if there is also surviving issue, or ½ of net estate is there is no surviving issue. One-third of personal and real property if decedent left issue. If no issue, surviving spouse entitled to $25,000 and ½ remaining real and personal property. One-half of estate or share that would have passed if testator died intestate, reduced by ½ of value of all property derived

by the spouse from the decedent through inter vivos transfers. “Property derived by the spouse from the decedent” includes the following: (a) transfers made within 2 years of decedent’s death to the extent transfer is subject to federal gift or estate tax, (b) transfers made before death subject to a power retained by decedent which would make the property subject to federal estate tax, and (c) transfers effectuated by death of decedent through joint ownership, tenancy by entireties, insurance beneficiary, or similar means. Minnesota

1990 UPC

Mississippi

Conventional Elective Share

MINN. STAT. ANN. §§ 524.2-201 524.2-209 (West 2000). MISS. CODE ANN. § 91-525 (West 1972).

Real and personal property surviving spouse would have received through

Missouri

Conventional Elective Share

MO. ANN. STAT. §§ 474.160; 474.163 (West 1992).

Montana

1990 UPC

Nebraska

Original UPC

MONT. CODE ANN. §§ 72-2-221 -226 (2005). NEB. REV. STAT. §§ 302313 - 302319 (2004).

Nevada

Community Property Conventional Elective Share

New Hampshire

N.H. REV. STAT. ANN. § 560:10 (2006).

intestacy, capped at 50%. One-half of estate if no lineal descendents; otherwise, 1/3 of estate. Share reduced by decedent’s inter vivos transfers to surviving spouse.

One-half of augmented estate.

One-third of personal and real estate if there are children of the deceased surviving or issue of any deceased children. If no children or issue, but surviving parents or siblings, $10,000 value in personal and real estate plus ½ of remainder. If no children, issue, parents, or siblings, $10,000, plus $2,000 for each year of marriage and ½ of remainder.

New Jersey

Original UPC

New Mexico

Community Property Non-uniform Augmented

New York

N.J. STAT. ANN. §§ 3B:8-1 3B:8-19 (West 1983).

One-third of augmented estate, also available to domestic partner.

N.Y. EST. POWERS & TRUSTS LAW §§ 5-1.1-A (McKinney 1999).

Greater of $50,000 or 1/3 of net estate, including enumerated nonprobate transfers, including (a) gifts causa mortis, (b) gifts of property within one year of death not excludible from taxable gifts, (c) savings account trusts, (d) decedent’s share of joint bank accounts, (e) joint tenancies and tenancies by the entireties, (f) transfers of property over which decedent enjoyed possession, income, retained power to revoke, consume, invade or dispose of the principal, (g) pension plans, (h) any property over which decedent had a general power of appointment.

North Carolina

Non-uniform Augmented

N.C. GEN. STAT. §§ 303.1 - 30-3.6 (2005).

North Dakota

1990 UPC

Ohio

Conventional Elective Share

N.D. CENT. CODE §§ 30.1-05-01 30.1-05-07 (1996). OHIO REV. CODE ANN. § 2106.01 (West 2005).

One-third or onehalf of “total net assets,” depending upon whether decedent has surviving children. Total net assets include (a) decedent’s real and personal property, (b) share of joint tenancies and tenants by entirety, (c) value of property includible in taxable estate, (d) gifts to donees other than surviving spouse, excluding those within the annual gift tax exclusion, gifts to which the surviving spouse consented, and gifts made prior to marriage, (e) proceeds from retirement or pension plans.

One-half of net probate estate, unless two or more of decedent’s lineal descendents survive, in which case surviving spouse takes 1/3 of

Oklahoma

Conventional Elective Share

Oregon

Conventional Elective Share

Pennsylvania

Non-uniform Augmented

OKLA. STAT. ANN. tit. 84, § 44 (West 1990). OR. REV. STAT. §§ 114.105, 114.125 (1990).

20 PA. CONS. STAT. § 2203 (West 2005).

probate estate. Intestate share or ½ of probate estate. One-quarter of net estate reduced by value of property given to the surviving spouse under decedent’s will. Elective share amount plus non-probate transfers to surviving spouse may not exceed ½ of decedent’s total property. One-third of the following property: (1) property passing from decedent by will or intestacy, (2) life estate in property conveyed by decedent during life to extent decedent had use of the property, an interest in it, or power to withdraw the income, (3) property conveyed by decedent during life to extent decedent had power to revoke, consume, invade, or dispose of principal for own benefit, (4)

Rhode Island

Conventional Elective Share

R.I. GEN. LAWS § 3325-2 (2006).

South Carolina

Conventional Elective Share

S.C. CODE ANN. §§ 622-201, 62-2202 (1976).

South Dakota

1990 UPC

Tennessee

Conventional Elective Share

S.D. CODIFIED LAWS §§ 29A-2-201 29A-2-213 (1997). TENN. CODE ANN. § 31-4101 (West

property held in joint tenancy, (5) annuity contracts purchased during marriage from which decedent received payments at time of death, (6) property conveyed by decedent during marriage and within one year of death with aggregate value exceeding $3,000 at time of conveyance. Life estate in all real estate owned in fee simple at decedent’s death, not including any real estate conveyed and recorded during decedent’s life. One-third of probate estate, meaning property passing under the decedent’s will plus decedent’s property passing by intestacy.

Between 10% and 40% of net estate depending upon

2001).

Texas Utah

Vermont

Virginia

Washington West Virginia

Community Property 1990 UPC

Conventional Elective Share Original UPC

Community Property 1990 UPC

Wisconsin

Community Property (adopted)

Wyoming

Conventional Elective Share

UTAH CODE ANN. §§ 752-201 - 752-214 (2002). VT. STAT. ANN. tit. 14, §401 (2002). VA. CODE ANN. §§ 64.1-16 64.1-16.2 (2002).

W.VA. CODE §§ 42-3-1 42-3-6 (LexisNexis 2004). WIS. STAT. ANN. §§ 861.02; 861.03 (West 2002). WYO. STAT. ANN. § 2-5101 (2005).

length of marriage reduced by inter vivos transfers to the surviving spouse.

One-third of deceased spouse’s personality. One-third of augmented estate if decedent left surviving children or their descendants; otherwise, ½ of augmented estate.

Fifty percent of augmented deferred marital property estate.

One-half if there are no surviving issue of the decedent, or if the surviving spouse is also a parent of any of the

surviving issue of the decedent; or one-fourth, if the surviving spouse is not the parent of any surviving issue of the decedent.