57 RI Bar J., No. 6, Pg 7. Separation of Powers and Rhode Island's Constitutional Right to a Public Education.

• Author: Samuel D. Zurier, Esq. Of counsel to Oliverio & Marcaccio, LLP, Providence

Rhode Island Bar Journal

Volume 57.

57 RI Bar J., No. 6, Pg 7.

Separation of Powers and Rhode Island's Constitutional Right to a Public Education

Rhode Island Bar Journal57 RI Bar J., No. 6, Pg 7 May/June 2009Separation of Powers and Rhode Island's Constitutional Right to a Public EducationSamuel D. Zurier, Esq. Of counsel to Oliverio & Marcaccio, LLP, ProvidenceAt the end of last year, the Rhode Island Supreme Court issued a landmark opinion reviewing the General Assembly's authority to appoint members of the Coastal Resources Management Council in light of the 2004 "separation of powers" amendments to the Rhode Island Constitution.(fn1) The Court's advisory opinion (referred to below as CRMC) concluded that the amendments place new limits on "plenary" legislative authority, while expanding the Court's responsibility to measure legislative actions against Constitutional standards.

While the significance of the Court's first decision under Rhode Island's new separation of powers Constitution cannot be overstated, CRMC may pave the way for even greater changes in Rhode Island. The United States Supreme Court played a critical role in accelerating the civil rights movement with its Brown v. Board of Education(fn2) decision, which identified our public schools as "perhaps the most important function of state and local governments."(fn3) In the past generation, a majority of state courts extended the reach of Brown, interpreting the education clause in state constitutions as providing a judicially enforceable right to public education. These decisions have spurred many states' political branches to bring meaningful improvement to the education of disadvantaged children.

Fourteen years ago, Rhode Island's Supreme Court was poised to join the rest of the country in this enterprise. One year earlier, Judge Needham of the Superior Court presided over a trial that documented dramatic disparities in the quality of public education provided in Rhode Island.(fn4) Judge Needham was outraged, and he held that Rhode Island's General Assembly had failed to meet its constitutional duty to provide adequate public education to its students.(fn5) Upon the announcement of the Superior Court's decision, Governor Sundlun asked the Board of Regents to prepare legislation to address the disparities with a major infusion of additional State aid.(fn6) Everything was put on hold, however, when the Senate filed its appeal.(fn7)

Sadly, in its 1995 Pawtucket v. Sundlun(fn8) decision, our Supreme Court missed its chance.(fn9) Looking back, the Court's decision was out of step with the rest of the country when it was decided, depriving Rhode Island of an opportunity to join Massachusetts as a national leader in the field of public education. To separate Rhode Island from the national trend, the Supreme Court relied extensively on Rhode Island's unique Constitution, including the concept of "plenary" legislative power embodied by Article 6, Section 10. As noted by the Supreme Court in CRMC, this section was repealed by the voters as part of the separation of powers amendments enacted in November, 2004.

In the dawn of today's new separation of powers Constitutional era, Rhode Island's Supreme Court can revisit the opportunity it missed in 1995. This article sketches, in general terms,(fn10) an argument that one of the first tasks for this new separation of powers era should be for Rhode Island's courts to join those in a majority of states that have spurred the political branches to enact meaningful improvements in public education.(fn11)

The argument has three parts. First, I argue that the logic of CRMC's analysis renders obsolete the concept of plenary legislative power that supported the foundation of Pawtucket v. Sundlun. Second, I argue that the Supreme Court's other holdings in Pawtucket v. Sundlun are ripe for reconsideration due to their departure from the national consensus and because of their reliance upon an outdated concept of public education. Third, I argue that Rhode Island (particularly in its urban communities) is suffering from a public education crisis largely caused by the General Assembly, which our judiciary can play a constructive role in resolving.

1. Viewing Public Education through the New Lens of Separation of Powers

   In CRMC, the Rhode Island Supreme Court found a Constitutional flaw in the legislative appointments to the Coastal Resources Management Council (The Council). In affirming the concept of separation of powers, the Supreme Court overruled the well-established doctrine of plenary (or unreviewable) legislative power under Rhode Island's unique constitutional history. This ruling provides a basis to overrule the Pawtucket v. Sundlun decision, which also depends upon the concept of plenary legislative power.

   1. The CRMC Decision

      In CRMC, the Rhode Island House of Representatives requested an advisory opinion as to whether the separation of powers amendments of 2004(fn12) rendered invalid a statute authorizing legislative appointments to the Council and legislators service on it. In defense of the statute, the House pointed to Article I, Section 17 of the Rhode Island Constitution, which authorized the General Assembly to "adopt all means necessary and proper" to protect the environment.(fn13) The House cited a long line of cases holding that the General Assembly's power in the field of environmental regulation was "broad and plenary," by which the Court meant immune from judicial review.(fn14)

      Notwithstanding its prior holdings concerning plenary power and the language of Article 1, § 17, the Supreme Court held that the General Assembly no longer had the authority to appoint members to the Council. The Court noted the 2004 amendments included the repeal of former Article 6, Section 10 of the Constitution, describing this change as follows: that provision expressly allowed the General Assembly to exercise any power that it had possessed prior to the 1986 constitutional convention unless expressly prohibited by the Constitution. The continuing powers conferred by article 6, section 10 were characterized by this Court as "plenary." City of Pawtucket [v. Sundlun], 662 A.2d at 44. It is clear that those "continuing powers" have now been explicitly and definitively repealed.(fn15)

      Immediately following this statement, however, the Court backpedaled slightly, stating:

      In contrast, the separation of powers amendments did not, either explicitly or implicitly, limit or abolish the power of the General Assembly in any other area where we have previously found its jurisdiction to be plenary. Such areas include the General Assembly's duty to provide for the state's natural environment (article 1, section 17); its regulatory power over lotteries (article 6, section 15); and its duty with respect to education and public library services (article 12, section 1).(fn16)

      In this paragraph, the Supreme Court attempted to exercise judicial prudence by limiting the opinion's precedential scope to the facts before the Court. In this case, however, the logic of the Court's opinion does not permit this type of prudence. More specifically, while the Supreme Court suggested in the quoted paragraph that the Legislature's authority to protect the environment under Article 1, Section 17's is still plenary, the holding of CRMC demonstrates the opposite: now that Rhode Island has strong separation of powers, the General Assembly's authority to legislate in the field of environmental protection is, in fact, subject to judicial review within the constraints of the rest of the Constitution's text, history and structure. The same logic compels the conclusion that the other previously plenary areas of legislative power (education and lotteries) are subject to the same type of judicial and Constitutional constraints as the power to regulate the environment. Despite its statement of judicial prudence, the CRMC Court's revision of the doctrine of plenary power moves across an important Constitutional threshold without the prospect of turning back.

   2. Pawtucket v. Sundlun's Reliance on the Concept of Plenary Legislative Power

      By placing limits on previously plenary legislative power, the Supreme Court's advisory opinion in CRMC provides a basis to reconsider the plenary legislative power upon which Pawtucket v. Sundlun was based. The Pawtucket Court reviewed a trial record that established serious disparities in the quality of public education and school facilities across the State, and a judgment that the General Assembly had a Constitutional duty to address those disparities under Article XII, Section 1 of the 1986 Rhode Island Constitution.

      The Supreme Court reversed, basing its ruling on the concept of plenary legislative power in the field of education, stating the following: Moreover, in no measure did the 1986 Constitution alter the plenary and exclusive powers of the General Assembly. In fact, the 1986 Constitution provided that: The general assembly shall continue to exercise the powers it has heretofore exercised, unless prohibited in this Constitution." Art. 6, sec. 10. Among the powers the General Assembly had exercised prior to the adoption of the 1986 Constitution was the power to promote public education through a statutory funding scheme and through reliance on local property taxation. It is thus clear that the General Assembly's plenary and exclusive power over public education in Rhode Island has not changed since the adoption of the State...