To His Excellency Lincoln C. Almond, Governor of the State of Rhode Island and Providence Plantations:
We have received from Your Excellency two letters dated October 16, and October 31, 2002, wherein you have propounded to us pursuant to article 10, section 3, of the Rhode Island Constitution
your request for our written opinion on the following questions:
"Does the Public Corporation Debt Management Act, [G.L. 1956 chapter 18 of title 35 (Kushner Act)], which requires General Assembly approval for certain [s]tate or quasi-public debt obligations, apply to require such approval of the nonrecourse project financing of the consolidated rental car facility?"
"May the Rhode Island Airport Corporation, in implementing the customer facility charge (CFC) authorized by [G.L. 1956 § 1-2-1.1], impose a uniform charge upon all rental car customers who indirectly or directly use Warwick Station or the T.F. Green state airport, regardless of whether the customer chooses to rent from a company that has chosen to locate inside the consolidated rental car facility or from a company based in another location that provides customers with access by shuttle or other means to and from the consolidated rental car facility?"
After careful consideration of the request presented, we respectfully conclude that a response to the questions propounded would be inappropriate under the circumstances here present.
"Pursuant to article 10, section 3, of our State Constitution, this Court is required to give its written opinion upon any question of law whenever requested to do so by the Governor or by either chamber of the General Assembly. We have previously interpreted that constitutional mandate as requiring our response to [Y]our Excellency's request only `when the question or questions propounded "concern the constitutionality of existing statutes which require implementation by the Chief Executive," * * * and have a bearing upon a present constitutional duty awaiting performance by the Chief Executive.'" In re Advisory from theGovernor, 732 A.2d 55, 59 (R.I. 1999) (quoting In re Request for AdvisoryOpinion Regarding House Bill 83-H-5640, 472 A.2d 301, 302 (R.I. 1984)).
Typically, we have interpreted the above mandate broadly. See In reAdvisory Opinion to the Governor (RIAC), 627 A.2d 1246, 1248 (R.I. 1993); In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356,1358 (R.I. 1991). Arguably, every request for advisory opinion requiring statutory interpretation relates back to Your Excellency's constitutional duties.
However, despite our constitutional duty to respond, "this Court will not issue advisory opinions [that] require a direct or indirect exercise of our fact-finding power. The justices of this Court, when rendering advisory opinions, act `as individuals and not as the judicial department of the state government.' * * * Because fact-finding inheres in the Court as the judicial branch of the state government, judges acting in their individual capacities lack this power and therefore lack the power to issue advisory opinions which implicate fact-finding." In re Advisoryfrom the Governor, 732 A.2d at 72 (quoting Opinion to the Governor,96 R.I. 358, 364, 191 A.2d 611, 614 (R.I. 1963) and citing AdvisoryOpinion to the Governor, 113 R.I. 586, 597, 324 A.2d 641, 647-48 (1974)).
The first question propounded by Your Excellency concerns the Warwick Station Project and whether Kushner Act approval is necessary for the financing of the consolidated car rental facility, a portion of the proposed intermodal facility. See G.L. 1956 § 35-18-3(b) ("No bonds may be issued or other obligation incurred by any public corporation to finance, in whole or in part, the construction, acquisition, or improvement of any essential public facility without the prior approval of the general assembly * * *"). The second
question concerns the scope of the term "indirect use" as used in G.L. 1956 § 1-2-1.1, the provision regulating CFC's. At best, both requests, in our opinion, raise mixed questions of law and fact. For example, by asking us to decide if the consolidated rental car facility is an "essential public facility" and/or an "economic development project," we believe our fact-finding powers must be invoked. To adhere to the prohibition against fact-finding in conjunction with rendering advisory opinions, we must respectfully decline to answer the questions propounded. However, we are mindful that under G.L. 1956 § 42-64-4(b) the legislature has specifically stated that "[t]he exercise by the [EDC] of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function of the state for public purposes."
Your Excellency has raised the applicability of the "pending-litigation exception to the rendition of an advisory opinion," because of litigation filed by the car rental companies in the Superior Court subsequent to Your Excellency's request for our opinion. In re Advisory from theGovernor, 633 A.2d 664, 676 (R.I. 1993). In that case, "[a]fter receiving the Governor's request, we learned that the questions propounded regarding [the statutes at issue] [were] involved in litigation now pending in this Court and in the District Court." Id. Therefore, we declined to issue our opinion because:
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To His Excellency Lincoln C. Almond, Governor of the State of Rhode Island and Providence Plantations:
We have received from Your Excellency two letters dated October 16, and October 31, 2002, wherein you have propounded to us pursuant to article 10, section 3, of the Rhode Island Constitution
your request for our written opinion on the following questions:
"Does the Public Corporation Debt Management Act, [G.L. 1956 chapter 18 of title 35 (Kushner Act)], which requires General Assembly approval for certain [s]tate or quasi-public debt obligations, apply to require such approval of the nonrecourse project financing of the consolidated rental car facility?"
"May the Rhode Island Airport Corporation, in implementing the customer facility charge (CFC) authorized by [G.L. 1956 § 1-2-1.1], impose a uniform charge upon all rental car customers who indirectly or directly use Warwick Station or the T.F. Green state airport, regardless of whether the customer chooses to rent from a company that has chosen to locate inside the consolidated rental car facility or from a company based in another location that provides customers with access by shuttle or other means to and from the consolidated rental car facility?"
After careful consideration of the request presented, we respectfully conclude that a response to the questions propounded would be inappropriate under the circumstances here present.
"Pursuant to article 10, section 3, of our State Constitution, this Court is required to give its written opinion upon any question of law whenever requested to do so by the Governor or by either chamber of the General Assembly. We have previously interpreted that constitutional mandate as requiring our response to [Y]our Excellency's request only `when the question or questions propounded "concern the constitutionality of existing statutes which require implementation by the Chief Executive," * * * and have a bearing upon a present constitutional duty awaiting performance by the Chief Executive.'" In re Advisory from theGovernor, 732 A.2d 55, 59 (R.I. 1999) (quoting In re Request for AdvisoryOpinion Regarding House Bill 83-H-5640, 472 A.2d 301, 302 (R.I. 1984)).
Typically, we have interpreted the above mandate broadly. See In reAdvisory Opinion to the Governor (RIAC), 627 A.2d 1246, 1248 (R.I. 1993); In re Advisory Opinion to the Governor (DEPCO II), 593 A.2d 1356,1358 (R.I. 1991). Arguably, every request for advisory opinion requiring statutory interpretation relates back to Your Excellency's constitutional duties.
However, despite our constitutional duty to respond, "this Court will not issue advisory opinions [that] require a direct or indirect exercise of our fact-finding power. The justices of this Court, when rendering advisory opinions, act `as individuals and not as the judicial department of the state government.' * * * Because fact-finding inheres in the Court as the judicial branch of the state government, judges acting in their individual capacities lack this power and therefore lack the power to issue advisory opinions which implicate fact-finding." In re Advisoryfrom the Governor, 732 A.2d at 72 (quoting Opinion to the Governor,96 R.I. 358, 364, 191 A.2d 611, 614 (R.I. 1963) and citing AdvisoryOpinion to the Governor, 113 R.I. 586, 597, 324 A.2d 641, 647-48 (1974)).
The first question propounded by Your Excellency concerns the Warwick Station Project and whether Kushner Act approval is necessary for the financing of the consolidated car rental facility, a portion of the proposed intermodal facility. See G.L. 1956 § 35-18-3(b) ("No bonds may be issued or other obligation incurred by any public corporation to finance, in whole or in part, the construction, acquisition, or improvement of any essential public facility without the prior approval of the general assembly * * *"). The second
question concerns the scope of the term "indirect use" as used in G.L. 1956 § 1-2-1.1, the provision regulating CFC's. At best, both requests, in our opinion, raise mixed questions of law and fact. For example, by asking us to decide if the consolidated rental car facility is an "essential public facility" and/or an "economic development project," we believe our fact-finding powers must be invoked. To adhere to the prohibition against fact-finding in conjunction with rendering advisory opinions, we must respectfully decline to answer the questions propounded. However, we are mindful that under G.L. 1956 § 42-64-4(b) the legislature has specifically stated that "[t]he exercise by the [EDC] of the powers conferred by this chapter shall be deemed and held to be the performance of an essential governmental function of the state for public purposes."
Your Excellency has raised the applicability of the "pending-litigation exception to the rendition of an advisory opinion," because of litigation filed by the car rental companies in the Superior Court subsequent to Your Excellency's request for our opinion. In re Advisory from theGovernor, 633 A.2d 664, 676 (R.I. 1993). In that case, "[a]fter receiving the Governor's request, we learned that the questions propounded regarding [the statutes at issue] [were] involved in litigation now pending in this Court and in the District Court." Id. Therefore, we declined to issue our opinion because:
"[g]rave difficulties could follow if we were to give a purely advisory opinion upon the proposed question, only to be confronted later with the necessity of deciding the same question after a hearing, upon review or otherwise, in the litigated case. * * * Legal and constitutional rights [could be] unnecessarily prejudiced by our having reached a considered opinion * * * upon a material question of law which we knew to be involved [the matter] without first having afforded [the parties] a full hearing * * *." Id. (quoting Opinion to the House of Representatives, 88 R.I. 396, 399-400, 149 A.2d 343, 345 (1959)).
Your Excellency proposes that we should decline to apply the pending-litigation exception in cases where the litigation was institutedafter Your Excellency's request to this Court, because parties seeking to stop this Court from rendering an advisory opinion need only file a Superior Court complaint.
In this case, we decline to render an advisory opinion to avoid invoking our fact-finding power. However, we recognize the car rental companies' attempt to thwart Your Excellency's constitutional power to seek advisory opinions from this Court. Therefore, in the future, we may respond to a properly presented request for an advisory opinion notwithstanding litigation filed after such a request.
Accordingly, we must respectfully decline to render an advisory opinion to the questions propounded.
Entered as an Order of this Court this 10th day of December, 2002.
By Order,
/s/Frank J. Williams
CHIEF JUSTICE FRANK J. WILLIAMS
/s/Maureen McKenna Goldberg
ASSOCIATE JUSTICE MAUREEN MCKENNA GOLDBERG
/s/Joseph R. Weisberger
CHIEF JUSTICE (Ret.) JOSEPH R. WEISBERGER
Associate Justice VICTORIA LEDERBERG did not participate.