Secrets and Scandals: Reforming Rhode Island 1986-2006, Chapter 33

Monday, October 19, 2015

H. Philip West Jr.

Between 1986 and 2006, Rhode Island ran a gauntlet of scandals that exposed corruption and aroused public rage. Protesters marched on the State House. Coalitions formed to fight for systemic changes. Under intense public pressure, lawmakers enacted historic laws and allowed voters to amend defects in the state’s constitution.

Since colonial times, the legislature had controlled state government. Governors were barred from making many executive appointments, and judges could never forget that on a single day in 1935 the General Assembly sacked the entire Supreme Court.

Without constitutional checks and balances, citizens suffered under single party control. Republicans ruled during the nineteenth and early twentieth centuries; Democrats held sway from the 1930s into the twenty-first century. In their eras of unchecked control, both parties became corrupt.

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H Philip West's SECRETS & SCANDALS tells the inside story of events that shook Rhode Island’s culture of corruption, gave birth to the nation’s strongest ethics commission, and finally brought separation of powers in 2004. No single leader, no political party, no organization could have converted betrayals of public trust into historic reforms. But when citizen coalitions worked with dedicated public officials to address systemic failures, government changed.

Three times—in 2002, 2008, and 2013—Chicago’s Better Government Association has scored state laws that promote integrity, accountability, and government transparency. In 50-state rankings, Rhode Island ranked second twice and first in 2013—largely because of reforms reported in SECRETS & SCANDALS.

Each week, GoLocalProv will be running a chapter from SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, which chronicles major government reforms that took place during H. Philip West's years as executive director of Common Cause of Rhode Island. The book is available from the local bookstores found HERE.

Part 3
SEPARATION OF POWERS 1

33 

Slow Motion Battle (1997–99) 
   
Separation of powers inched its way toward the Rhode Island Supreme Court. Just before Thanksgiving in 1997, Lincoln Almond formally presented three questions to the high court for an advisory opinion. First, he inquired whether the 1986 constitutional amendment that authorized the Ethics Commission to “adopt a code of ethics” also empowered it to bar lawmakers from serving on public boards. 

Next he asked the court to compare separation of powers in the United States and Rhode Island constitutions. Did Rhode Island’s existing clause bar General Assembly members and their appointees from executive and quasi-public boards? Were Rhode Island lawmakers excluded as members of the U.S. Congress were? 

Third, Almond asked whether Rhode Island’s separation of powers clause imposed “any limits whatsoever” on legislative appointments to boards that executed state laws. Did the Rhode Island Constitution prohibit sitting legislators from serving on public boards? Did it bar them from “constituting a majority of the membership of a public board or body?” 

Only six days after the governor’s request, the high court invited supporters and opponents of the Ethics Commission’s rule to present their arguments. The question would prompt an avalanche of legal briefs. Twice before, Common Cause had filed “friend of the court” briefs, both times benefiting from the work of appellate attorney Lauren Jones. The pony-tailed lawyer had done his legal research and writing at no charge to us beyond photocopying and printing copies of his briefs. I phoned Jones to seek his help on the separation of powers question. 

“Sorry,” Jones told me, “the speaker’s office called last week. I agreed to represent the House.” 

My heart sank. I asked if he thought the General Assembly had a strong argument. 

“Strong?” he replied. “Rhode Island’s entire history is on their side.” 

Common Cause had no budget for legal briefs, but Natalie Joslin, our chapter’s original founder, was back as president of the board. Over a brown bag lunch of the advisory council — mostly retired executives and lawyers — Bob Kilmarx and I explained the process. 

“So,” Joslin said as she passed a plate of cookies, “who will pledge to start a fund to make our case for separation of powers?” 

“What will it cost?” John Sapinsley asked.

Kilmarx estimated $25,000. By the time they went home, advisory council members had pledged $16,000.

Later, I walked Kilmarx down the back stairs to his car. During the years since he and Sheldon Whitehouse had made the case at that same table, he had led our separation of powers task force. Now he seemed energized by the battle ahead. I told him Lauren Jones thought the court would rule against us. 

“Lauren could be right,” he agreed. “Courts make reactionary decisions more often than we lawyers like to acknowledge. In the Easton’s Beach case, they completely ducked the issue.” He squinted in the afternoon sun. “I thought they were afraid they’d be sacked, just as their predecessors were in the Bloodless Revolution.” On January 1, 1935, Democrats staged a political coup that ended nine decades of increasingly corrupt Republican rule. To preserve their victory, the General Assembly ousted all five Republican Supreme Court justices and replaced them. The new justices affirmed the legislature’s power “to remove any judge from office at any time at its pleasure.” 

“You may not have thought about this,” Kilmarx said, “but the General Assembly’s power to sack the entire Supreme Court continued until 1994. Your constitutional amendment establishing the Judicial Nominating Commission and authorizing the governor to appoint justices finally ended that threat.” 

“Would that make the justices any more amenable on separation of powers?” 

“I wish,” Kilmarx said. “I’d like to believe they would affirm separation of powers because it’s right. Our problem is that they have centuries’ worth of precedents and a culture of legislative domination. Do I believe they’ll break with all that?” He seemed perplexed by his own question. “I’d like to believe at least three of the five will support separation of powers, but I’ve learned not to speculate. Better to make sure our brief is legally sound.” 

A few days later Kilmarx and I met with appellate lawyer Karen Pelczarski in her sunny office overlooking Kennedy Plaza. She agreed that separation of powers was probably the most important question facing Rhode Island. “They’ve built an entire system of government that would be unconstitutional anywhere else in the country,” she said. “Our challenge will be to convince the court that what’s always been must not continue. I worry that if they say no on Almond’s question about the Ethics Commission’s authority, they may duck the other two questions.” 

Over the next month, we loaded Pelczarski down with all the research that Peter Hufstader and others had been collecting over several years. While she drafted and redrafted our brief, I reached out to organizations and leaders who might join the legal contest. First I went to Alan Hassenfeld, who needed no convincing. “Count me in,” he said. “The victories we’ve won so far — ethics, campaign finance, four-year terms, judicial selection, legislative pay — are stones in an arch that’s not complete. Separation of powers puts the keystone in place.” 

The Rhode Island State Council of Churches’ Committee on Advocacy and Justice asked how separation of powers related to their mission of providing justice for the poor, and I described the unfair effects of patronage and corruption. A week later, the full council voted to sign onto the Common Cause amicus brief, and the League of Women Voters did the same. 

John Hazen White sat at a massive antique desk in a square brick tower at TACO, Inc. The wily manufacturer of heating and cooling pumps was a libertarian who saw the General Assembly’s intrusion into executive functions as hopelessly corrupt. “We’ve gotta give ‘em hell,” he said. “Move aggressively. Separation of powers could be our most crucial triumph of all.” The feisty octogenarian had paid for dozens of full-page ads in the Providence Journal. His self-funded organization, RedAlert, Inc., could mobilize hundreds on short notice. As he wrote a check toward our legal brief I wondered if he would live to see separation of powers or, for that matter, if any of us would. 

Operation Clean Government needed no invitation. From a band of rowdy RISDIC depositors OCG had matured into a vigorous grassroots movement, whose cadre of volunteers had begun producing a tabloid-sized newsletter and a monthly television program. They had no office or staff, but Sara Quinn, the former director of the Ethics Commission, had guided them in drafting ethics complaints that made them a force to reckon with. Beverly Clay, the vice chair, participated in the separation of powers task force, and Robert Senville, a volunteer attorney, had already begun work on their brief. 

The Environment Council also had a running start. Its forty-two member organizations ranged from the American Lung Association and Appalachian Mountain Club to the Sierra Club and Woonasquatucket River Watershed Council. Their leaders gathered each month around a large square of tables at the Audubon headquarters in Smithfield. Chairperson Paul A. Beaudette introduced me to attorney James P. Marusak, who had already begun work on their brief. “Separation of powers is a no-brainer for environmentalists,” Beaudette said. “We want decisions made on the basis of science. It does no good to enact wetlands regulations when lawmakers on boards subvert the process for political gain.” 

Marusak pulled a thick bill out of his briefcase. “I don’t know how closely you’ve looked at this, but it provides a textbook example of how legislative tinkering can ruin environmental policy-making and enforcement.” 

I had seen what people at the State House called “the Kennedy bill” but had not analyzed it. Beaudette and Marusak skipped from page to page, pointing out places where the legislation by Hopkinton Rep. Brian P. Kennedy took planning and enforcement duties away from the Department of Environmental Management (DEM) and assigned them to other bodies controlled by the General Assembly, including the Coastal Resources Management Council (CRMC) and the Resource Recovery Corporation. In one fell swoop, this legislation would fragment the work of enforcement. 

Beaudette pointed to a section about hearing officers. “If you read this closely,” he said, “you’ll see how it guts DEM’s power to prosecute wetlands violators.” 

I asked where those enforcement powers would go. 

“They’re also creating a new Joint Legislative Oversight Committee,” he said. “How do you think its eleven members would be appointed?” 

“By the speaker and Senate majority leader?” I speculated. 

He raised his palms in mock surrender. “Nine lawmakers and two legislative staff. Kennedy’s bill says they ‘shall also resolve any questions regarding an overlap in or conflict in the authority of any state department, agency, commission, or any public corporation of the state or any similar entity.’ How’s that for consolidating power in legislative hands?” 

“Yet another legislative committee,” Marusak chimed in, “with vast executive and judicial powers. The point of our brief is that neither legislators nor their appointees have any valid roles as administrators or judges. Regardless of whether the Ethics Commission had ever raised this question, the Rhode Island Constitution itself prohibits such appointments.” 

 

Karen Pelczarski welcomed research compiled by Peter Hufstader and Bill Colleran about the soaring number of legislative appointments since the 1950s. “I knew there were a lot,” she said, “but these lists — seventy-five public boards with over two hundred seats for legislators and another hundred for legislative appointees — are truly staggering. And if that weren’t enough, a whole bunch of gubernatorial appointments need to be confirmed by the Senate. That means that lawmakers can block the governor’s appointments, but the ‘chief executive’ gets no say on appointments by the speaker and Senate majority leader.” 

She unclipped a pile of 1998 bills. “They’re not even content to lay low with what they’ve already got,” she said. “They keep proposing new ones all the time: this Cancer Council, Film Commission, even a new Board of Locksmiths. Everywhere you look, legislators and legislative appointees pop up on executive bodies.” 

From minutes of various boards Peter Hufstader calculated absences of part-time representatives and senators. Few had enough hours in the day for their administrative bodies. 

Pelczarski laughed. “They probably miss more meetings than they make. I assume they show up when agenda items involve contracts or patronage.” 

She slid several pages of draft language across to me. She had written that legislative appointees responsible for executing state laws “seriously weaken the power of the executive branch to faithfully execute the laws and impermissibly shift the executive power to the legislature.” The results, she noted, were “serious conflicts of interest, failures of oversight, and opportunities for corruption.” 

Pelczarski paraphrased a 1984 ruling in which the Rhode Island Supreme Court had declared that the ability to appoint was “essential and central to the executive power to faithfully execute the laws.” Her text reduced it to absurdity: “If legislators placed themselves and their appointees on all the seats of all executive agencies, the governor would lose every shred of power to faithfully execute the laws. In effect, the governor would be a mere figurehead. It would be absurd to argue that the framers of the Rhode Island Constitution intended that result.” 

I told her that Lincoln Steffens had visited Rhode Island’s gleaming new State House in 1905 and interviewed Gov. Lucius F.C. Garvin. Steffens wrote that he found Garvin sitting “helpless, neglected, alone in his office, with plenty of time to tell me all about the conditions which distressed him and his utter lack of power.” Calling the state’s governors “administrative mummies,” Steffens wrote in his autobiography: “General Charles R. Brayton, the political boss, was the actual, permanent governor or dictator of Rhode Island.” He ridiculed the state’s chronic corruption as “the best established, most accepted, most shameless system” he had seen anywhere. He called Rhode Island a “State for sale, and cheap.” 

Pelczarski quickly noted the irony: Democrats had hated the Republican Boss Brayton and the law named for him that consolidated his power. When they seized power in 1935, they repealed the Brayton Act and modernized the executive branch, but they quickly reverted to Brayton’s practices. 

She flew us through a matrix of dates, events, issues, and precedents, calling our attention to a highlighted section. “Here,” she read. “In the Annals of Congress, 1789, James Madison defined our issue: ‘I conceive that if any power whatsoever is in the nature of the executive, it is the power of appointing, overseeing and controlling those who execute the laws.’” 

I asked how she would answer House leaders’ claim that the Rhode Island Constitution was fundamentally different from that of the United States. 

“They can argue that all they like,” Pelczarski said, “but they can’t rewrite the dictionary on a whim. The definitions of executive and legislative don’t change when you cross the border into Rhode Island.” 

On another page of the draft she quoted an 1854 decision of the Rhode Island Supreme Court that warned against the uniting of all government powers “in the same set of hands.” The justices continued: “To guard against such a government was one great object of the Constitution. This was to be done by this distribution of powers. This is the great principle of American liberty.” The case had involved Thomas Wilson Dorr. 

“That’s a pivotal Rhode Island decision,” she said, “but most lawyers — and I’ll bet most General Assembly members — have never read it. We’ll make sure they do.” 

Hufstader tabulated national data that Pelczarski wove into our brief. Forty-one states permitted lotteries or gambling, and thirty-three had lottery agencies. But no other state allowed lawmakers or their appointees to serve as voting members of a board that regulated lotteries. By contrast, lawmakers held six of nine seats on Rhode Island’s Lottery Commission, an agency plagued by scandal. All fifty states had environmental authorities like Rhode Island’s Underground Storage Tank Review Board to oversee the cleanup of leaky gasoline tanks, but only six allowed legislative participation, and only Rhode Island allowed a legislator to run the operation. 

Although I found Pelczarski’s argument compelling, I left her office with nagging doubts. I knew that House leaders had killed Meg Curran’s nomination to the high court because she would not commit “to be safe on separation of powers.” 

As for the current justices, Joseph R. Weisberger had been a Republican senator and an early mentor to George Caruolo. Catapulted to the high court by Grand Committee in 1978, Weisberger had announced his retirement several months before scandal engulfed Thomas Fay. When Fay resigned, Weisberger became acting chief, and in 1995 he became the first chief justice chosen through Merit Selection. His years in the state Senate and his special relationship with Caruolo seemed likely to work against us now. Victoria Lederberg had been the last justice chosen by Grand Committee. She had served fourteen years in the General Assembly and had helped swing crucial votes that made John Harwood Speaker of the House. Gov. Almond had named Maureen McKenna Goldberg to the high court in 1997. Her husband, a former Senate minority leader, was now a high-powered lobbyist. If Weisberger, Lederberg, and Goldberg went against separation of powers, we would lose. 

By any ordinary logic, our case for separation of powers was solid. But what if Lauren Jones was right? What if Rhode Island’s constitutional history came down on the other side? 

 

With no time to spare before briefs were due, Gov. Almond’s executive counsel, Joe Larisa, invited the lawyers who were writing in support of the Ethics Commission’s rule to a series of meetings in his corner office. Tall windows offered splendid views of College Hill and downtown Providence. Attorneys on our side settled into Larisa’s long black leather couch and deep armchairs around an oriental rug. 

Larisa began without ceremony. He would not suggest what anyone should write, but wanted each to know what the others were writing to avoid inconsistencies the other side could then use against separation of powers. One by one, the lawyers rehearsed their premises, arguments, and conclusions. They agreed to exchange drafts and meet again. As we left, Jim Marusak handed me a copy of his draft on behalf of the Environment Council.

I read it eagerly. Marusak used historic examples in which Rhode Island’s colonial lawmakers acknowledged the authority of British kings, writing that “the General Assembly’s legislative power in colonial times was often dominated, and once entirely trumped by executive edicts issued by the King and his Royal Commissioners.” For this reason, Marusak wrote, the General Assembly and its apologists had misread history: colonial governors had been weak chiefly because the king imposed his authority through royal commissioners. Only two years after the Royal Charter of 1663, emissaries from Charles II demanded loyalty oaths and the repeal of “all laws and expressions in laws derogatory to his Majesty.” The General Assembly acquiesced, pledging “cheerful obedience” to the British Crown. 

In a pointed critique of current General Assembly practices, Marusak argued that the Coastal Resources Management Council (CRMC) and other environmental quasi-publics were executive agencies. Proof, he wrote, lay in the state’s Administrative Procedures Act (APA), which defined administrative agencies and allowed them to make rules for enforcing laws and resolving contested cases. Marusak emphasized that the law applied to all boards, commissions, departments, and officers apart from the legislature or the courts. He insisted that what these entities did — their core functions — branded them as indisputably executive. Whether they were legally established as part of the executive branch or created as separate commissions made no difference. Executive functions made them subject to appointment by the state’s chief executive, and no amount of sophistry could justify lawmakers or their surrogates exercising executive powers. 

In particular, Marusak targeted environmental agencies where legislators sat as voting members, including the Coastal Resources Management Council, the Narragansett Bay Commission, the Resource Recovery Corporation, the Underground Storage Tank Fund Review Board, and the Water Resources Board. The Supreme Court, he noted, had explicitly recognized several of these operations as lying within the executive sphere. His draft ended with a plea for the high court to agree that separation of powers principles had played a vital part in Rhode Island’s history, and to exert the doctrine’s “cleansing effect” on environmental boards. 

In his brief for Operation Clean Government, Robert Senville analyzed practical problems that flowed from lawmakers’ participation on executive boards. Without the benefit of evidence from a contested case, the Supreme Court should ponder the facts and testimony that had convinced the Ethics Commission to address this glaring problem in the first place. Senville focused on the flood of campaign contributions flowing from contractors, vendors, and law firms to the coffers of Vincent Mesolella as chair of the Narragansett Bay Commission, all of which prevented the General Assembly from exercising proper legislative oversight. Consequently the Bay Commission was given more autonomy, with the freedom to raise rates and take on debt, all to the detriment of its customers. 

This was no mere academic theory, Senville wrote. Mesolella had funneled money he received from NBC vendors to other lawmakers who then voted to remove controls the Public Utilities Commission had historically exercised over the NBC. In effect, the move “gave the Narragansett Bay Commission vast autonomy to raise rates and incur debt,” a consequence that NBC and its vendors sought. Such machinations, Senville argued, destroyed public confidence in government. 

He noted that although other state laws barred officials who could award public contracts and jobs from receiving campaign contributions, legislators with dual roles as lawmakers and administrators were exempt. Corruption could arise whenever such lawmakers received donations from individuals who hoped to benefit from their influence over contracts and jobs. Five years earlier, he added, the justices had affirmed the Revolving Door Law and its precursor ethics rule. They declared in a unanimous opinion: “A democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities that arouse suspicion.” 

In his brief, Joe Larisa wrote that the framers of the U.S. Constitution saw separation of powers as “the first principle of good government and essential to the preservation of liberty.” He showed that the Rhode Island Supreme Court had “consistently applied federal precedent” to separation of powers cases within the state, adding: “The doctrine of separation of powers absolutely forbids the extension of legislative power into the core duties of the judicial branch and the executive branch.” He cited a litany of Rhode Island Supreme Court cases that explicitly affirmed the doctrine and linked it to federal practice. 

Generations of Rhode Island justices, Larisa wrote, had relied on James Madison as their authority. His summary of their rulings provided a way for the justices to uphold the separation of powers clause in Rhode Island’s Constitution even if they decided that the Ethics Commission lacked authority to bar lawmakers from boards. All the briefs on our side reconfirmed what Sheldon Whitehouse and Bob Kilmarx had taught: separation of powers was the bedrock of American constitutional practice, and it was woven through Rhode Island jurisprudence. 

I knew the other side would argue that the General Assembly was entitled to create executive bodies and appoint its members to run them. Lauren Jones’s confidence in their case weakened my faith in ours. Would the justices rise above personal ties and promises they might have made? What if the separation of powers question we had delivered to the Ethics Commission in 1995 brought unintended consequences? What if our strategy swept Rhode Island backwards into a political ice age? 

 

Protocol of the Rhode Island Supreme Court required that lawyers on our side send copies of their briefs to attorneys for the other side, who would then frame their answers. In July 1998, defenders of the status quo filed seven briefs, which represented the views of top Democrats in the General Assembly, Republican Atty. Gen. Jeffrey B. Pine, historian Patrick T. Conley, political science professor Jay S. Goodman, who was also a State House lobbyist, and a property rights group called Rhode Island Wise Use. 

Lauren Jones, representing John Harwood, laid out the House leadership’s case in seven spare sentences that covered history, legal interpretation, and constitutional analysis. He held that policy arguments against the General Assembly’s appointment power were critically flawed. “Under the guise of ethics reform,” he wrote, “the Governor asks this Court . . . to redistribute government power by stripping the appointment power from the General Assembly and assigning it to the Governor.” He added that the governor based “his transparent power grab on an overbroad, unconstitutional regulation adopted by the Ethics Commission.” 

Jones then distilled and dismissed our case: “In an attempt to usurp the state’s constitutional prerogative, they argue that after 300 years of its own republican form of government, Rhode Island has no choice but to follow the federal model.” In addition to history, he stressed a single clause that gave lawmakers broad powers they had possessed under the Royal Charter of 1663: “The general assembly shall continue to exercise the powers they have heretofore exercised, unless prohibited in this Constitution.” 

I had read that clause — Article VI, Section 10 — hundreds of times. Each time my mind recoiled from its meaning: unless voters had outlawed a specific legislative practice in the very text of the state’s Constitution, the General Assembly remained free to “exercise” that power. 

Jones wrote that the legislature possessed all powers but periodically delegated specific appointing powers to Rhode Island’s governors. He buttressed his argument with a 1908 Supreme Court advisory opinion that validated the infamous Brayton Act of 1901. Under Brayton, if the Senate did not confirm a gubernatorial appointment in three days, it could appoint whomever it chose. “This Court,” Jones insisted, “made it plain that the appointment power is not an inherent executive power; it is a power which could have been given to any branch of government and which was given to the legislative branch.” He pointed out that the Supreme Court had upheld Brayton in 1908 and that ninety years later its opinion still stood. “Contrary to the Governor’s and Common Cause’s depiction,” Jones wrote in a footnote, “all five justices firmly believed that the General Assembly possessed, if it so chose, the constitutional power to appoint.” 

Patrick T. Conley, the leading authority on Rhode Island history, also filed a massive 168-page brief on the legislature’s behalf. Conley argued that throughout its history Rhode Island’s General Assembly had created commissions and appointed their members. He dismissed Jim Marusak’s brief on behalf of the Environment Council for using “history as a drunk uses a lamppost — more for support than light.” 

Referring to the supremacy of the legislature as an essential feature of colonial government, Conley listed twenty-five legislative committees formed before the Revolutionary War. In every way imaginable, they functioned as administrative agencies, settling boundary disputes, managing real estate, repairing forts, setting tax rates, paying soldiers, and running lotteries. In 1775, moreover, after the battles of Lexington and Concord, the General Assembly appointed Nathanael Greene to command the colony’s militia. In this and countless other executive appointments, Conley wrote, Rhode Island’s General Assembly “exercises more power than any other in the American system.” 

The historian’s brief also noted that the People’s Constitution of 1841 had provided for a clear separation of powers; its Article III would have separated the legislative, judicial, and executive branches, and it would have banned dual office-holding. Conley argued that if forces loyal to Thomas Wilson Dorr had won, their strong separation of powers clause would have shaped the state’s Constitution during the intervening century and a half. 

But, in fact, Dorr’s forces were routed, and a convention of victorious Whigs, “who, like their namesakes in England, exalted the legislature and feared the executive,” drafted what became Rhode Island’s “Law and Order Constitution.” That document, approved by voters in 1843, gave Rhode Island governors “no veto, no appointive power, and no budgetary power. By contrast, it granted the General Assembly broad and virtually limitless power. Conley traced the General Assembly’s continuing dominance through the nineteenth century to its climax under Charles “Boss” Brayton. 

Although we at Common Cause understood that history as an unfolding demonstration of legislative abuses, Conley interpreted it as constitutionally valid practice. Where Karen Pelczarski wrote that the Brayton Act of 1901 had usurped the governor’s appointive power, Conley averred that governors had few powers except by the legislature’s leave. 

Ironically, Conley had written the authoritative history of Rhode Island between the American Revolution and the Dorr Rebellion, years when the Royal Charter of 1663 was its de facto constitution. In 1977 he had published Democracy in Decline: Rhode Island’s Constitutional Development, 1776–1841, in which he declared: “Most of the constitutional crises which convulsed Rhode Island during the century and a quarter following adoption of the 1843 Constitution would have been avoided had the People’s Constitution prevailed.” 

But now his brief for the General Assembly downplayed any connection between ethics reform and separation of powers. “The structure of government is morally neutral,” he wrote and attacked our separation of powers campaign as “moralism run rampant.” The lawyer-historian closed his brief with a declaration that the “strict separationists” would need to make their case, not through an Ethics Commission rule, but through a constitutional convention and an amendment that could be approved or rejected by state voters. 

 

In November 1998, Lincoln Almond again defeated Democrat Myrth York to secure his second four-year term. Both Almond and York were strong advocates for separation of powers. After the botched prosecution of Ed DiPrete, Jeffrey Pine had not run for another term. U.S. Attorney Sheldon Whitehouse and General Treasurer Nancy J. Mayer had battled to replace Pine. It made no financial sense for Whitehouse to move from being the top federal prosecutor to chief state prosecutor, a post with less power and far lower pay. But Whitehouse won, and his decision proved politically wise: victory carried him over the crucial divide from appointive positions to statewide elective office. 

As attorney general-elect, Whitehouse announced that his first act in the office would be to withdraw the brief Pine had filed with the Supreme Court on separation of powers. 

Pine’s top appellate attorney, Thomas M. Dickinson, had written that while the U.S. Constitution explicitly authorized the president to appoint judges and “officers of the United States” and prohibited persons who held any federal appointed office from serving in Congress, Rhode Island’s Constitution contained no such provisions. Dickinson named three recent governors — Frank Licht, Philip Noel, and J. Joseph Garrahy — who had signed legislation that established executive boards with members appointed by the General Assembly. 

On November 10, one week after the election, Dickinson rose before the Rhode Island Supreme Court to argue on Pine’s behalf. He declared that members of Congress did, in fact, make executive appointments. With a pointed glance toward Whitehouse in the audience, he reminded the robed justices of a television commercial in which Whitehouse told viewers he had been appointed U.S. Attorney by Rhode Island’s revered U.S. Senator Claiborne Pell. Even though everyone knew that Pell, as senior senator of the president’s party, had only recommended Whitehouse to President Clinton, Dickinson scored his point. 

Edward M. Fogarty, the bearded Senate counsel, argued that the Rhode Island Constitution allowed the General Assembly to make all of its current appointments and to enlarge its list whenever it wished. 

Justice Robert G. Flanders Jr. interrupted to ask if there were any limits on the General Assembly’s power. And if so, what were those limits? 

Fogarty replied there were few: according to the Constitution, the legislature could confer upon itself authority to enforce the laws it might enact or delegate enforcement authority to others, including the governor. 

In that case, Flanders asked, what authority did the state’s Constitution grant the governor when it used the terms “executive” or “chief executive”? 

“The governor has very little executive power,” Fogarty answered. Rhode Island’s Constitution described the veto power and the governor’s role as commander in chief of military and navy. 

In his turn at the central lectern, Patrick Conley reprised state history from his brief and asked rhetorically how the Ethics Commission could presume to change 335 years of Rhode Island constitutional history? 

Next Joe Larisa cited the Rhode Island Supreme Court’s 1854 rebuke to the General Assembly. The justices had called separation of powers “the great principle” of democracy for both the United States and Rhode Island. 

The court had scheduled an entire morning of oral arguments. As the five justices listened and asked questions, nothing in their demeanor telegraphed their decision. Soon they would retire behind the deep green velvet curtain that separated the courtroom from their conference room. I imagined them peering over piles of briefs, sorting through the thrust and parry of arguments. I hoped they had not already decided. The proscenium above their polished mahogany bench featured vines carved in dark wood with a gold-lettered Latin inscription: non sub homine sed sub deo et lege. It meant: “Not under man but under God and Law.” Would at least three of these five subscribe to a higher authority than the Whigs’ military victory of 1842? Would they recognize any check on the General Assembly’s power, or would Rhode Island’s government and people be forever subject to legislative extortion? 

 

One day after his inauguration as attorney general, Sheldon Whitehouse filed a legal memo with the Supreme Court on separation of powers, declaring that his office “now withdraws and disavows the arguments and conclusions” his predecessor had made. Whitehouse argued that four articles of the state’s Constitution made reference to separation of powers, while only one suggested that the legislature could exercise any powers not explicitly prohibited. He wrote that “generations of Americans who lived in slavery, or under Jim Crow laws, for instance, knew the promise in the American Constitution of equal protection of the laws as a promise unfulfilled. In short, prior political practice is a particularly poor principle in constitutional argument.” Furthermore, he wrote that political power yielded “only reluctantly” to change: “The very reason we have a constitution is to restrain the exercise of political power and to prevent the exercise of absolute power by any agency of government.” 

Jeff Pine blasted Whitehouse for coming in “at the eleventh hour and fifty-ninth minute” to argue that the brief of the previous attorney general should be ignored. 

Joe Larisa told reporters that the governor was pleased with the new bipartisan consensus: “We now have the chief legal officer of the state agreeing with both the governor and Common Cause and the other good-government groups that separation of powers properly prohibits legislators from serving on executive boards and commissions of the state.” 

 

I hoped our 1994 constitutional amendment that had ended the Grand Committee’s power to pick Supreme Court justices would embolden the current justices to support separation of powers. Few had forgotten that the General Assembly had sacked the entire high court on January 1, 1935. 

Theodore Francis Green, a Harvard-trained lawyer and Democrat, had led a political coup that historians called “the Bloodless Revolution.” 

In 1932, Green had run for governor and campaigned to put his longtime friend, Franklin Delano Roosevelt, into the White House. Both Democrats won. As the Depression deepened, Roosevelt steered recovery funds to Rhode Island, but Republicans controlled the General Assembly and obstructed New Deal programs. The Brayton Law of 1901 allowed to legislative leaders to block Green by controlling executive appointments. 

But their tactics backfired. In 1934, Green won re-election, and Democrats achieved a virtual tie in the all-important state Senate. 

On New Year’s Day 1935, Lt. Gov. Robert E. Quinn — Green’s fiercely partisan ally, often called “Fighting Bob” — presided at the Senate’s long mahogany rostrum. Vote counts remained in dispute for South Kingstown and Portsmouth. Quinn refused to let senators from those towns take the oath of office. Both were Republicans, and Quinn’s move left the Senate with twenty Republicans, twenty Democrats, and himself as lieutenant governor able to break any tie. Senate Democrats quickly certified both contested seats to the Democrats. 

Republicans shouted in protest and tried to bolt from the chamber only to find police and sheriffs blocking all three exits. With no means of escape, they could not deny Democrats the quorum they needed to complete Green’s carefully executed State House coup. 

Democrats faced one final obstacle. Since the 1850s, most of the justices of the state Supreme Court had been Republicans, and the court would surely invalidate the coup. Green’s forces quickly convened the Grand Committee and replaced all five high court justices, a move that was legal under the “broad powers clause” of the 1843 Constitution: the General Assembly could exercise any powers it had under the Royal Charter of 1663 unless explicitly prohibited. Electing new justices was dramatic but followed precedent from the colonial era, when the General Assembly elected Supreme Court justices each year. 

Green and Quinn had picked five respected jurists — two were native Yankees, two were Irish, and one was Italian. The Grand Committee “elected” these five, a move that left the Republicans seething but without legal recourse. The new Supreme Court had three Democrats and two Republicans, a ratio that would endure for generations. 

Gov. Green went on the radio to explain what his forces had done. He cited the ideals of Roger Williams and the courage of Thomas Wilson Dorr. He told listeners that Democrats would establish majority rule.

Nine decades after a coalition of urban Whigs and rural Democrats formed the Law and Order Party to crush the Dorr Rebellion, Dorr’s political heirs had toppled Rhode Island’s Republican power structure. Thus the name: “Bloodless Revolution.” 

Democrats in the legislature soon merged eighty commissions and boards into eleven modern executive departments under Green’s control. They also repealed the Brayton Act, which had allowed the Senate to ignore gubernatorial appointments in favor of appointing its own. 

But the 1950s brought a relapse, as the General Assembly reverted to the old practice of creating boards with legislative members or surrogates. Democrats seemed to have no qualms about doing what Brayton had done in 1901 — using executive appointments to hold power. 

At the start of 1999, the question remained: how would the justices rule now that the General Assembly could no longer sack them? 

 

H. Philip West Jr. served from 1988 to 2006 as executive director of Common Cause Rhode Island. SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006, chronicles major government reforms during those years.

He helped organize coalitions that led in passage of dozens of ethics and open government laws and five major amendments to the Rhode Island Constitution, including the 2004 Separation of Powers Amendment.

West hosted many delegations from the U.S. State Department’s International Visitor Leadership Program that came to learn about ethics and separation of powers. In 2000, he addressed a conference on government ethics laws in Tver, Russia. After retiring from Common Cause, he taught Ethics in Public Administration to graduate students at the University of Rhode Island.

Previously, West served as pastor of United Methodist churches and ran a settlement house on the Bowery in New York City. He helped with the delivery of medicines to victims of the South African-sponsored civil war in Mozambique and later assisted people displaced by Liberia’s civil war. He has been involved in developing affordable housing, day care centers, and other community services in New York, Connecticut, and Rhode Island.

West graduated, Phi Beta Kappa, from Hamilton College in Clinton, N.Y., received his masters degree from Union Theological Seminary in New York City, and published biblical research he completed at Cambridge University in England. In 2007, he received an honorary Doctor of Laws degree from Rhode Island College.

Since 1965 he has been married to Anne Grant, an Emmy Award-winning writer, a nonprofit executive, and retired United Methodist pastor. They live in Providence and have two grown sons, including cover illustrator Lars Grant-West. 

This electronic version of SECRETS & SCANDALS: Reforming Rhode Island, 1986-2006 omits notes, which fill 92 pages in the printed text.

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Related Slideshow: Rhode Island’s History of Political Corruption

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