In Re Advisory Opinion to the Governor

688 A.2d 288, 1997 R.I. LEXIS 12, 1997 WL 22925

• Court: Supreme Court of Rhode Island
• Decided: January 22, 1997
• Docket: 96-565-M.P.
• Status: Published

Opinions

To His Excellency Lincoln Almond, Governor of the State of Rhode Island and Providence Plantations.

We have received from Your Excellency a request for our written opinion in accordance with article 10, section 3, of the Rhode Island Constitution on the following question.

“Does the Governor have authority pursuant to Article 9, Section 5 of the Rhode Island Constitution to fill a vacancy in the office of Lieutenant Governor for the remainder of a four-year term for that constitutional office?”

Upon receipt of your request the court invited briefs to be filed by those who were proponents of the Governor’s power to appoint and also by those who opposed the purported appointive power of the Governor in respect to filling the vacancy in the office of Lieutenant Governor. Briefs were filed by the executive counsel to the Governor and the Attorney General, who supported the Governor’s appointive power. Briefs were filed on behalf of the Rhode Island House of Representatives and its Speaker and on behalf of the Majority Leader of the Rhode Island Senate, opposing the purported appointive power of the Governor to fill the vacancy in the office of Lieutenant Governor.

All parties agree that the office of Lieutenant Governor became vacant by operation of law on January 7, 1997, when the incumbent Lieutenant Governor, Robert A. Weygand, assumed office as a member of the United States House of Representatives. This action on his part vacated his office as Lieutenant Governor pursuant to the provisions of article 3, section 6, of the Rhode Island Constitution, which forbid any person holding office under the government of the United States to act as a general officer of this state or as a member of the General Assembly. It is undisputed that Lieutenant Governor Wey-gand took the oath of office as a member of the United States Congress on January 7, 1997, and that his doing so created a vacancy in the office of Lieutenant Governor.

The Governor argues that he has the power to appoint a person to fill this vacancy pursuant to article 9, section 5, of the Rhode Island Constitution which reads as follows:

“Authority to fill vacancies. — The governor may fill vacancies in office not otherwise provided for by this Constitution or by law, until the same shall be filled by the general assembly, or by the people.”

I

Propriety of the Request

Neither the proponents nor the opponents of the Governor’s appointive power have challenged the propriety of this request. We have stated on numerous occasions that we shall give an advisory opinion to the Governor on a matter that has a bearing on a present constitutional duty awaiting performance by the Governor. See, e.g., In re Advisory From The Governor, 633 A.2d 664, 666 (R.I.1993); In re Advisory Opinion (Chief Justice), 507 A.2d 1316, 1319 (R.I.1986); In re Request for Advisory Opinion Regarding House Bill 83-H-5640, 472 A.2d 301, 302 (R.I.1984).

The present request asks our opinion concerning the power of the Governor to appoint a person to fill a vacancy in a constitutional office for the remainder of the prior incumbent’s term. This question certainly has a bearing upon the performance of a constitutional duty by the Governor, and thus the request is appropriate and requires our written response.

II

Existence of the Power

The provisions of article 9, section 5, of the Rhode Island Constitution are straightforward and unambiguous. The Governor is endowed by these provisions with the authority (not mandatory) to “fill vacancies in office not otherwise provided for by this Constitution or by law, until the same shall be filled by the general assembly, or by the people.” The Senate and the House as amici agree that there is no specific provision in the State Constitution for the filling of a vacancy in the office of Lieutenant Governor. This is contrasted with the clearly focused provisions contained in article 4, section 4, of the Constitution, which provide for filling of a vacancy in the offices of the Secretary of State, the Attorney General, or the General Treasurer by the Grand Committee of the General Assembly. This section also authorizes the Governor to appoint some person to fill such a vacancy until a successor is elected by the General Assembly and is qualified to act.

The House and the Senate are in consonance in contending that although the Constitution does not provide for the filling of a vacancy in the office of Lieutenant Governor, save by the general provisions of article 9, section 5, the provisions of that section are nevertheless not triggered by a vacancy in the office of Lieutenant Governor. They argue that other provisions of the Constitution provide for transfer of the functions of the office of Lieutenant Governor in his absence or inability to serve for any cause. For example, the Constitution does provide for the election of a person to preside over the Senate in the absence of the Lieutenant Governor in article 8, section 3. This section reads as follows:

“Presiding officer in absence of lieutenant governor. — If by reason of death, resignation, absence, or other cause, the lieutenant governor is not present, to preside in the senate, the senate shall elect one of its own members to preside during such absence or vacancy; and until such election is made by the senate, the secretary of state shall preside. The presiding officer of the senate shall preside in grand committee and in joint assembly.”

The Constitution also provides in article 9, section 10, that in the event of a vacancy in both the offices of Governor and Lieutenant Governor, the Speaker of the House of Representatives “shall in like manner fill the office of governor during such vacancy.” The amici House and Senate also contend that historical precedents under both the Charter of King Charles II of 1663 and the prior Constitution of 1843 militate against the propriety of a gubernatorial appointment of a person to fill a vacancy in the office of Lieutenant Governor.¹

We confirm our observation contained in Kass v. Retirement Board of the Employees’ Retirement System, 567 A.2d 358, 360 (R.I.1989), that “ ‘a page of history is worth a volume of logic’ in determining the extent of state as well as federal constitutional limitations,” quoting Justice Oliver Wendell Holmes in New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963, 983 (1921). Nevertheless, we also adhere to the proposition that when a constitutional provision is clear and unambiguous, we must accord its provisions their plain and ordinary meaning, City of Paw-tucket v. Sundlun, 662 A.2d 40, 45 (R.I.1995); In re Advisory Opinion to the Governor, 612 A.2d 1, 7 (R.I.1992), and “no word or section must be assumed to have been unnecessarily used or needlessly added.” Kennedy v. Cumberland Engineering Co., 471 A.2d 195, 198 (R.I.1984). Historical anecdotal occurrences cannot overcome a clear and unambiguous grant of constitutional power.

We also agree, as we set forth in Kass, that historically the power of the General Assembly has been plenary and unlimited, save as this authority may have been limited by the Constitution of the United States and/or the Constitution of the State of Rhode Island. 567 A.2d at 360. Unlike the United States Congress, the Rhode Island General Assembly does not look to our State Constitution for grants of power. In re Advisory Opinion to the House of Representatives, 485 A.2d 550, 553 (R.I.1984); Payne & Butler v. Providence Gas Co., 31 R.I. 295, 316, 77 A. 145, 154 (1910). “Accordingly, this court has consistently adhered to the view that the General Assembly possessed ‘all of the powers inhering in sovereignty other than those which the constitution textually commits to the other branches of our state government and that those that are not so committed * * * are powers reserved to the general assembly.’ ” Kass, 567 A.2d at 361 (quoting Nugent v. City of East Providence, 103 R.I. 518, 525-26, 238 A.2d 758, 762 (1968)). In answering the question propounded by the Governor, we must look to the text of article 9, section 5, to determine whether that provision of our Constitution endows the Governor with the power to fill a vacancy in the office of Lieutenant Governor. We believe that it does in clear and unambiguous terms.

Although article 8, section 3, of the Constitution provides for the performance of functions by others “[i]f by reason of death, resignation, absence, or other cause, the lieutenant governor is not present,” no provision purports to deal with the filling of a vacancy in that office save the general provisions of article 9, section 5. Consequently this section is controlling.

In answering the question propounded by Your Excellency, the justices of this court do not purport to comment upon policy questions relating to the desirability or the necessity of filling a vacancy in this general office but only respond to the question concerning the power of the Governor to do so. We are of the opinion that article 9, section 5, allows the Governor to fill any vacancy that is not otherwise provided for by the Constitution or by law.

Given the plenary authority of the General Assembly, we have little doubt that it could have enacted a statute providing for the filling of a vacancy in the office of Lieutenant Governor as has been suggested by the Attorney General in his brief. We find no express prohibition in the Constitution withholding such power, nor is it forbidden by necessary implication.² Nevertheless, the General Assembly has not enacted such a statute, and therefore, the Governor’s power to appoint is clearly authorized by article 9, section 5, of the Constitution.

Ill

Duration of Such Appointment

In light of our recognition of the plenary power of the General Assembly, we cannot say unequivocally that absent death, resignation, or other circumstances causing an additional vacancy a person appointed by the Governor pursuant to article 9, section 5, would serve until the next general election. We are of the opinion that such person would be expected to serve for that period unless the General Assembly were to take action that might diminish or shorten such period of service by providing another method for filling the vacancy for the remainder of the term of office. See, e.g., Casey v. Willey, 89 R.I. 87, 96-97, 151 A.2d 369, 374 (1959); In re Filling of Vacancies by the Governor (Railroad Comm’r), 28 R.I. 602, 606, 67 A. 802, 803 (1907). In issuing this caveat, we do not purport to determine the validity of any such actions as might be taken by the General Assembly subsequent to an appointment by the Governor but only to indicate that such an action might have a significant bearing upon the term during which the person appointed to the vacant office of Lieutenant Governor might serve. However, we reiterate that the Governor’s constitutional authority to fill vacancies “is only for a temporary purpose — until the normal elective power shall act.” In re Filling of Vacancies by the Governor, 28 R.I. at 606, 67 A. at 803. With respect to the office of Lieutenant Governor, “the normal elective power” is the people. The General Assembly has not yet attempted to act in order to invoke this elective power and we have no way of knowing whether it will do so before the existing term of office expires, or if it does act, whether such actions as it may decide to take would be valid.

For the reasons stated, we answer the question addressed to us by the Governor in the affirmative with the caveat that action by the General Assembly might affect the length of the term that such an appointee might serve.

/s/ Joseph R. Weisberger

JOSEPH R.WEISBERGER

Chief Justice

/s/ John P. Bourcier

JOHN P. BOURCIER

Justice

/s/ Robert G. Flanders, Jr.

ROBERT G. FLANDERS, Jr.

/s/ Donald F. Shea

DONALD F. SHEA

Justice (retired and sitting by designation)

1 . The amici and our colleague cite numerous instances under the charter when the General Assembly filled vacancies in the office of deputy governor and numerous instances under the Constitution of 1843 when vacancies in the office of Lieutenant Governor either were filled by the Grand Committee or were left vacant. This historical outline is interesting but scarcely controlling. We must construe the current provisions of the Constitution of 1986. Moreover, the mere fact that a constitutional power has not been exercised does not prove that the power does not exist.

2 . The maxim "expressio unius est exclusio alteri-us" is too weak a foundation upon which to rest a prohibition based upon necessary implication. See Opinion of the Court to the Governor in the Matter of the Constitutional Convention, 55 R.I. 56, 69-73, 178 A. 433, 440-41 (1935). The requirement of article 4, section 4, of the Rhode Island Constitution that vacancies in the office of the Secretary of State, the Attorney General, or the General Treasurer be filled in a certain manner is not inconsistent with an exercise of power by the General Assembly to provide by law for the filling of a vacancy in the office of Lieutenant Governor in a different or, indeed, in a similar manner. 55 R.I. at 69-73, 178 A. at 440-41.