The General Assembly's attempt to do away with the governor's right to place nonbinding questions on the ballot backfires in a ruling that surprises even the governor's lawyer.

01:00 AM EDT on Tuesday, July 4, 2006

BY ELIZABETH GUDRAIS
Journal State House Bureau

PROVIDENCE -- Lawyers for Governor Carcieri had asked a judge to allow two referendum questions to appear on the ballot in November.

The ruling they got yesterday appears to enable not just those two questions, but all future advisory questions any governor wishes to place on the ballot.

"It is the declaration of this court that the governor has the prerogative to submit questions for inclusion on the ballot, with or without any legislative action," Superior Court Judge Stephen J. Fortunato Jr. said.

Carcieri has been engaged in a tug of war with the General Assembly as he seeks to take voters' pulse with two questions: Do they support caps on increases to local property taxes and state spending? And, do they support voter initiative, which would enable voters to place their own questions on the ballot through petition?

One of the questions is already partially superfluous. Two weeks ago, the Assembly passed a bill to phase in lower caps to property-tax increases by municipalities over the next seven years. However, that bill does not address state spending.

Earlier this year, lawmakers rescinded the governor's power to place nonbinding ballot questions -- a power the state's governor has had since 1978, when the General Assembly conferred it. The governor vetoed the bill; the General Assembly overrode his veto.

Both sides had agreed that future governors would not have the power to offer advisory questions. The only remaining issue was whether this year's questions, submitted before the Assembly acted to rescind the power, would go forward.

Or so the sides thought. According to what Fortunato said yesterday, Carcieri never needed the General Assembly's permission to offer advisory questions in the first place. He ruled the power was inherent in the executive branch under the state's Constitution.

John A. "Terry" MacFadyen III, the lawyer for the General Assembly, had argued that in placing such questions, a governor steps on the toes of the legislative branch. Fortunato ruled that because the questions are advisory in nature, and therefore their passage does not form new laws, "there has been no delegation of legislative powers whatsoever to the governor."

Lawyers for both sides said they were perplexed by Fortunato's decision. The ruling was "not one that either side had requested, or had briefed, or had argued," MacFadyen said.

In fact, Claire Richards, the lawyer representing Carcieri, explicitly argued that the Assembly does have the power to allow the governor to place, or prohibit him from placing, questions on the ballot.

After the ruling, MacFadyen protested that the questions' contents expressly relate to legislative functions. Fortunato stopped MacFadyen, saying MacFadyen hadn't raised that issue in his brief and would need to start over with another petition for declaratory judgment.

MacFadyen said afterward that the Assembly leadership would need to decide whether to start another proceeding in Superior Court. The Assembly plans to appeal yesterday's ruling to state Supreme Court, he said.

Joseph Avanzato, the lawyer for the secretary of state's office, entreated Fortunato and MacFadyen to get the matter resolved quickly so ballots can be printed. The deadline for referendum questions is Aug. 9, he said, because the state prints one side of the ballot in August, then prints the second side in September, once the results from the primary are certified.

The Supreme Court is in summer recess now. Asked whether he thought it likely the state's highest court would return from the break to decide the ballot-question case, MacFadyen said, "That's entirely up to them."

The court returned from recess two years ago to rule on the case involving a ballot question about a Harrah's-Narragansett Indian casino in West Warwick. However, Fortunato expressed doubt yesterday whether the justices would consider the governor's nonbinding ballot questions similarly urgent in nature.

Fortunato and the lawyers met in a nearly deserted courthouse, on a day that was sandwiched between a weekend and the Independence Day holiday and became part of a long weekend for many people.

Governor Carcieri hailed Fortunato's ruling as "good news for the people of Rhode Island."

"On the day before we celebrate our nation's independence, the court has acted to preserve the freedoms and the opportunities that Rhode Islanders have enjoyed for decades," Carcieri said.

egudrais@projo.com / (401) 277-7045