OpEd: Ten important questions in Rhode Island constitutional law

“…these are questions I believe we need to raise in the confirmation process. Questions we need to talk about more. Questions we must think about as we review legislation. As the right has shown with the increasing aggressiveness of their judicial activism, the law is political. To protect our fundamental rights, progressives must engage in these debates and not just leave them to the conservatives.”

Rhode Island News: OpEd: Ten important questions in Rhode Island constitutional law

November 9, 2020, 8:57 am

By Sam Bell

With the Republicans breaking their own rules to ram through a far-right extremist replacement for Justice Ginsberg at the national level, many Americans now fear for their basic constitutional rights. Many Americans worry that they will lose their healthcare coverage, their ability to terminate a pregnancy safely, or their freedom to marry the person they love. These questions are also of crucial importance in our own state, and it’s time for us to talk about them. Constitutional law is incredibly powerful. At the national level, the right-wing has weaponized it. Here in Rhode Island, progressives need to start caring about our own state’s constitution. Because it matters. A lot.

Rhode Island’s Supreme Court currently consists of five justices, each of which was appointed by a Republican Governor and confirmed by a conservative (but nominally Democratic) General Assembly. But we have a chance at major change. One of the single most important issues that the new General Assembly will face will be the vetting of two Raimondo nominees for Rhode Island’s Supreme Court. In Rhode Island, Supreme Court justices are confirmed by both the House and the Senate (unlike other judges who are just confirmed by the Senate), so this will be a very important issue facing members of the House of Representatives as well.

I’ve been through several judicial confirmations for lower level courts in the Senate, and one thing that has been strikingly absent from the conversation has been what the nominees actually think about the important issues. Typically, nominees are chosen behind closed doors based on political connections. Most of our public conversation rests on the important issues of ethics and diversity–issues that certainly matter and places where our results are deplorable–but we rarely talk about nominees’ actual views. The resulting courts tend to be quite right-wing. So I want to discuss a few of the big questions in our state’s constitutional law, questions that have very important implications for all of us.

Question 1: Does Article I, Section 24 of the Rhode Island Constitution protect a woman’s right to choose?

The national Roe v. Wade decision that grants a woman’s right to choose rests on the right to privacy, a constitutional principle that originates from three separate parts of the United States Constitution: 1) the Fourteenth Amendment, 2) the Ninth Amendment, and 3) the “penumbras and emanations” of the First, Third, Fourth, and Fifth Amendments. The Rhode Island Constitution’s mirror Fourteenth Amendment provision, Article I, Section 2, famously states that “nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.” Crucially, however, that provision is limited to only Article I, Section 2 and does not apply to the rest of the Rhode Island Constitution. And the Rhode Island Constitution does have a mirror Ninth Amendment provision, Article I, Section 24. As a result, there is a fairly strong case that the Rhode Island Constitution protects a woman’s right to choose.

This question, however, has never been definitively resolved, and our state presently lacks a state constitutional decision protecting a woman’s right to choose. A significant focus of the 2019 legislative session was on the historic campaign to codify the principles of Roe v. Wade into state law. To win, activists worked tirelessly on an advocacy campaign the likes of which the state had not seen in a long time. Laws, however, can be changed. A constitutional protection would help immensely with protecting a set of rights that we’ve learned will always be under attack.
Furthermore, many Democrats such as myself feel that Roe v. Wade is too limited, and many of Rhode Island’s abortion restrictions that remain in force probably violate the state constitution. A bold state constitutional ruling could resolve these questions once and for all. So it is of utmost importance that our judicial candidates be willing to stand firmly behind the principle that the Rhode Island Constitution protects a woman’s right to choose.

Question 2: Does Article I, Section 2 of the Rhode Island Constitution protect the rights of the LGBTQ community?

At the national level, there are several limited decisions protecting the rights of LGBTQ Americans–decisions that are currently in grave danger. Moreover, many key protections are needed in our state, especially for trans, genderqueer, nonbinary, third gendered, intersex, and genderfluid Rhode Islanders, who often face thousands of indignities and injustices in our laws. As well as being demeaning, this can have a substantial financial impact. For instance, Rhode Island’s substandard insurance coverage protections for trans-affirming healthcare can cause painful economic hardship. It is therefore of utmost importance that the Rhode Island Supreme Court promulgate strong protections for the LGBTQ community. The language is there in Article I, Section 2, which includes the following: 

“No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied equal protection of the laws. No otherwise qualified person shall, solely by reason of race, gender or handicap be subject to discrimination by the state, its agents or any person or entity doing business with the state.”

Due process and equal protection of the laws lie at the heart of the federal LGBTQ constitutional protections granted in landmark decisions like Obergefell v. Hodges and Lawrence v. Texas. Our judicial candidates should proudly state that these words protect the rights of the LGTBQ community. And that these protections grant the full equality that the Republican-controlled United States Supreme Court has yet to provide.

Question 3: Does the Rhode Island Constitution restrict gun control?

Article I, Section 22 of the Rhode Island Constitution, our mirror Second Amendment provision, states that “the right of the people to keep and bear arms shall not be infringed.” The primary controlling Rhode Island Supreme Court decision on this topic is Mosby v. Devine. In this decision, the court officially ruled against the plaintiff, who was seeking a reversal of a denial of a concealed carry permit. However, the court packed the decision with passive aggressive hints at a very aggressive gutting of gun control laws. While the decision was denied on procedural grounds, the court went out of its way to slip in arguments designed to undermine the very foundations of what was then long-held jurisprudence allowing gun control laws.

The decision, which can be found here, is ironically well worth reading for the remarkably persuasive case it makes against the conclusions it reaches. I once thought that, because Rhode Island Constitution does not contain the same “well-regulated militia” language as the United States Constitution, it provides more limits on gun regulation than the Second Amendment.

Reading Mosby changed my mind. The primary difference rests in the fact that the United States Constitution was put in place in the context of a successful armed revolution, while the Rhode Island Constitution was put in place in the aftermath of a failed armed revolution widely viewed as “illegitimate” by the framers. Moreover, as the Mosby decision describes in some detail, right after the adoption of the Rhode Island Constitution, the General Assembly very much viewed the right to bear arms as a common defense right, not an individual right, to the point of storing arms for the militia in armories rather than private homes.

Broadly summarized, the Court basically concedes the whole argument that the right to bear arms was definitely intended as a common defense right but then also asserts an individual right to bear arms anyway. This was, at the time, a very radical move. The Mosby decision came down in 2004, before the infamous 2008 District of Columbia v. Heller decision, where the conservative United States Supreme Court created an individual right to bear arms from a Second Amendment that had long been understood to not say anything of the sort. In fact, Mosby came down only a few months after the case that ultimately became Heller was struck down by the district court. In the 5-4 Heller decision, Justice Stevens (a Republican appointee) wrote a blistering dissent calling an individual right to bear arms “a strained and unpersuasive reading” and a “dramatic upheaval in the law.” It is therefore quite striking that Rhode Island’s Supreme Court was willing to assert an individual right to bear arms before national conservative judicial activists had gotten such a decision out of the infamously activist conservative majority on the United States Supreme Court.

In Mosby, the court dropped a perhaps more dramatic passive aggressive stab at the heart of what was then important American gun control law, stating that “we are of the opinion that the right to possess a handgun, whether a fundamental liberty interest or not, is not absolute and is subject to reasonable regulation.” At the time, it was a radical thing to say. A right to possess a handgun had yet to be created at the national level by the Heller decision. There was no real reason for the court to assert such a right, but they went out of their way to do so.

As problematic a decision as Mosby was, its problems are largely superseded by Heller and the extreme NRA-driven gun control jurisprudence at the national level. Mosby stopped short of gutting restrictions such as assault weapons bans and concealed carry permitting. Chillingly, however, the dissent in Mosby called for an extreme reading of Article I, Section 22 that went even further than Heller would four years later at the national level. Moreover, the NRA and its supporters are relentless. Every year, opponents of gun control swarm the Senate Judiciary Committee wearing yellow shirts with Article I, Section 22 printed on the back, telling the committee that our state constitution makes just about any kind of modest gun control unconstitutional. There remains considerable risk that the Rhode Island Supreme Court might take its activist attitude a step further and gut even some of the exceptionally modest gun safety provisions currently under discussion.

As a result, we must ensure that the two new justices who will soon be joining the Rhode Island Supreme Court return to the traditional view of firearm jurisprudence. Our judicial candidates must be willing to openly and clearly assert that the Rhode Island Constitution does not provide an individual right to bear arms. They must instead interpret Article I, Section 22 in its clear historical context as a right of common defense codified after an armed revolt that the framers viewed as illegitimate.

Question 4: Are private beaches unconstitutional?

Going to the beach is an important part of a Rhode Island summer. But much of Rhode Island’s beaches remain effectively in private hands, leaving the public to crowd onto a limited number of beaches while wealthier Rhode Islanders enjoy privately owned beaches. Fortunately, the Rhode Island Constitution grants the rights of “leaving the shore to swim in the sea” and “passage along the shore.” In practice, however, these rights have been quite literally eroded. The classic 1941 Rhode Island Supreme Court decision Jackvony v. Powell, which barred the City of Newport from erecting a fence at the Middletown line of Easton’s Beach and charging non-resident beachgoers fees to use the Newport portion of Easton’s Beach, opened the door to the gutting of these rights by defining the limit at the high tide line. In the Jackvony case, the court sometimes referred to the line as the high tide line and sometimes referred to it as the mean high tide line. In the 1982 Ibbison decision, the court chose to define the line as the mean high tide line. Referencing the 1935 United States Supreme Court decision Borax v. Los Angeles, the Rhode Island Supreme Court decided to require that the mean high tide line be measured over the course of a full 18.6 year nodal cycle of the moon. The angle between the rotational plane of the Earth and the orbital plane of the Moon oscillates by about 5˚ over the course of this nodal cycle, which causes a well-known oscillation in the tides. As a result of the Ibbison decision, lines were drawn on survey maps, and private beach owners frequently codified the line by building fences right up to it.

However, actively used beaches tend to erode, often quite fast. Moreover, the climate crisis has caused a considerable and accelerating sea level rise. As a result, these old survey lines, frequently marked by fences, no longer reflect the realities of the beach as it exists today, leaving little or no beach actually available for public use. In practice, fences, warning signs, private security, and police create a situation where wealthy private landowners are able to keep the public off their beaches, in clear violation of constitutional intent. When Charlestown resident Scott Keeley tried to assert his constitutional rights to access a beach patrolled by private security, he wound up arrested, detained, and then released with an apology from the Charlestown Police. In Keeley’s case, the property owners asserted that their surveyed mean high tide line is now always underwater. As Representative Terri Cortvriend of Portsmouth and Middletown has argued, sea level rise means that changes are definitely needed.

Resolving this issue now lands in the hands of our incoming justices. With the spirit of these constitutional protections lost, a new standard is needed. Personally, I think that the only fair standard to ensure full beach access, as intended by the ancient privileges of the shore, is to allow full use of the beach. We must ensure that our new justices build a standard that eliminates these unconstitutional private beaches and truly opens our shore to the public.

Question 5: Should we reverse the gutting of home rule protections in decisions like Marran v. BairdMoreau v. Flanders, and Warwick Mall Trust?

Home Rule is one of those pieces of Rhode Island constitutional law that comes up all the time in the General Assembly. To understand where Home Rule came from, I’d like to quote from West Warwick’s own Fighting Bobby Quinn (then the Democratic floor leader in the Senate and later Lieutenant Governor and Governor) in his legendary speech on the need for a constitutional convention to reform the Rhode Island Constitution:

“We advocate home rule for cities and towns. In other words, we believe that the people in each locality know best what kind of government they want and are best able to prescribe the local rules which fit their particular situations. In years gone by, the State legislature has reached in and interfered with cities and towns in their purely local affairs time after time. The most striking example occurred a very short time ago.

For the very first time in three hundred years in 1930 the Democratic Party took control of the city government in Providence. They were able to do this because of the abolition of the property qualification. And so for the first time in three hundred years they had the Mayor and control of both branches of the City Council. This happened in November, 1930. The Legislature met in January, 1931 and what happened? The Legislature reached into the City of Providence and took away control of its fire department, police department and public service engineer. They did this by creating the Safety Board. In other words, the representatives of West Greenwich, New Shoreham, Charlestown, Exeter, etc. acting through the Legislature, stepped in to run the purely local affairs of the City of Providence. The Legislature has done this many times. It has created a state appointed police commission in Woonsocket, Central Falls, Cumberland, Warwick, West Warwick, and other places. We propose that in the future cities and towns shall have the right to govern themselves and to write into the constitution a prohibition which will forever prohibit the Legislature from again interfering with any city or town in its purely local affairs.”

Home Rule was finally codified into the Rhode Island Constitution in the Limited Convention of 1951, with most of the provisions consolidated into Article XIII in the Convention of 1986. Section 4, the crucial section, states:

“The general assembly shall have the power to act in relation to the property, affairs and government of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of government of any city or town. The general assembly shall also have the power to act in relation to the property, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majority of the qualified electors of the said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.”

Normally, one would think that this would mean that the General Assembly would not be able to take over state control of cities and towns or write different laws for different municipalities without a vote of those municipalities. However, in practice an alarmingly high percentage of the bills we pass in the General Assembly violate this principle.

In Marran v Baird, the Rhode Island Supreme Court upheld a state takeover of the budget of Bobby Quinn’s own West Warwick. The state had sent in a budget commission to run West Warwick’s finances, voting to approve its municipal budget. A poor community, West Warwick was blamed for its poverty and lost control of its own budget. Such a violation of local control vastly exceeded the takeovers of some Providence departments that precipitated the Limited Convention of 1951 and the Home Rule Amendment in the first place. However, the court justified it on two grounds. First, they argued that because the General Assembly passed a law that allowed the executive branch to order a takeover, the takeover wasn’t specific to West Warwick. Secondly, they argued that because the takeover was limited in time, it did not alter the “form of government” of West Warwick. Both arguments, in my view, do extreme damage to the clearly stated original intent of Home Rule. They make a mockery of these protections.

But the court soon blasted through even the weak limits they allowed with Marran in the infamous case of Moreau v. Flanders, where the Democratic City of Central Falls had been taken over by a receiver who happened to be former Republican Rhode Island Supreme Court Justice Bob Flanders. Because they were poor, the Democratic people of Central Falls were subjected to rule by one Republican man with no democratic control over their own finances. Flanders wielded the budgetary axe with such vengeance that he gave himself the nickname “Darth Flanders, lord of the pink slip.” Crucially, the takeover of Central Falls was not limited in time, a key argument used in Marran. No matter. The court ruled that it was fine anyway because the takeover had some limits at all–even though it was far more expansive than the limited 1930 Providence takeover that precipitated Home Rule. As an insult, they stuck the budget-wrecked City of Central Falls with the legal bills.

It is because of the rulings in Marran and Moreau that the takeover of the Providence schools remains unchallenged. In other cases, such as the I-195 Commission or the East Providence Waterfront Commission, the Marran and Moreau exemptions do not apply, but the aggressiveness of the court in decisions like Marran and Moreau have created a perception that any challenge to reinforce home rule would likely get struck down.

And it goes further. The other major case gutting home rule is Warwick Mall Trust v. State of Rhode Island. When the state passed a special law setting up a tax exemption deal for the Providence Place Mall, the Warwick Mall sued, arguing that the deal required the approval of the people of Providence because the law was specific to Providence. The Rhode Island Supreme Court upheld the law. Their argument hinged on the infamous taxation supremacy clause, Article XIII, Section 5: “Nothing contained in this article shall be deemed to grant to any city or town the power to levy, assess and collect taxes or to borrow money, except as authorized by the general assembly.” The basic idea was that because of the taxation supremacy clause, home rule protections did not apply to any taxation issues. This was, I think, absurd. The final clause of Article XIII, Section 4 makes crystal clear that home rule was very much meant to apply to taxation issues, saying that “in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town qualified to vote upon a proposition to impose a tax or for the expenditure of money.” The reason for this final clause is that in 1951 Rhode Island had yet to abolish the dual vote system. Many conservative rural towns still only allowed residents who owned property and paid property taxes to vote on property taxes. Although that fundamentally unfair system has long been abolished, that legacy clause makes the original intent undeniable: home rule was meant to apply to tax issues. Nowhere in Warwick Mall Trust did the court address this issue. But the precedent was set. And enormous amounts of special laws have been written to mess with the tax policy of individual municipalities, mostly to exempt politically favored developments from paying full property taxes. There is now a laundry list of politically favored properties written into the law as tax-exempt.

And it goes further. Decisions like these have meant that the General Assembly just ignores home rule, passing bill after bill that creates special rules for special municipalities. Just recently, we passed a special exemption to allow Smithfield to have more liquor stores than would be otherwise allowed by the state liquor store formula. Bills like this are extremely common, leading to a mess of hodgepodge policy-making.

Rhode Island is crying out for a return to actual enforcement of home rule. Voter approval for laws applying to one municipality in particular must be required. Our new justices have an opportunity to restore these protections, and they should commit to do so.

Question 6: What healthcare protections flow from the handicap clause?

Of all the provisions of our state constitution that offer expansive possibilities for progressive rulings, perhaps most important is the handicap clause of Article I, Section 2, which protects Rhode Islanders from discrimination by the state on the basis of “handicap.” Of crucial importance is how broadly “handicap” is defined and how many ailments get included. Even the arch-conservative commentators Patrick Conley (Rhode Island’s notorious “Historian Laureate”) and former Republican Justice Bob Flanders agree in their commentary on the Rhode Island Constitution that long-term debilitating health conditions are covered, including mental illness. Alone, the consequences of truly enforcing the clause to stop the state from discriminating on the basis of mental illness are staggering. For instance, the state would no longer be able to incarcerate (or even fine) Rhode Islanders for crimes that fundamentally break down to the criminalization of mental illness. Rhode Islanders struggling through our chronically underfunded developmental disabilities system would have core protections that they have not been afforded. Indeed, budget cuts targeted specifically at services for Rhode Islanders suffering from serious mental health conditions could well be unconstitutional. As long as we include substance use disorder–and indeed it is difficult to justify excluding it–truly enforcing the handicap clause would render substantial portions of our drug laws unconstitutional.

But the implications go much further when “handicap” is expanded to a broader array of healthcare conditions than conservative commentators limit it to. When it comes to these conditions, if non-discrimination were truly enforced, Medicaid, state employee insurance, and state contractor health insurance would not be able to discriminate against Rhode Islanders with conditions covered by the handicap clause. That means no copays or out of pocket costs. Certainly, no denials or higher rates because of preexisting conditions. And in fact, given how all insurance is regulated and subsidized by the state, on top of being often sold on the state exchange, it seems difficult to argue why private insurers should be able to evade these non-discrimination protections. The ability of this clause to sweep away thousands of injustices in our healthcare system is immense. At the boldest interpretation, one might even argue that without healthcare being provided for free to all, the state is implicitly discriminating on the basis of handicap.

The healthcare protections that would flow from this clause if it were fairly enforced are staggering. New justices should commit to robust enforcement of the healthcare protections in the handicap clause.

Question 7: How much does the taxation supremacy clause constrain municipal policy?

Perhaps the clause that conservative judicial activists most infamously abuse in the Rhode Island Constitution is the taxation supremacy clause of Article XIII, Section 5: “Nothing contained in this article shall be deemed to grant to any city or town the power to levy, assess and collect taxes or to borrow money, except as authorized by the general assembly.” This clause lay at the root of Warwick Mall Trust, and it has been used for so many other tortuous rulings to aid corporate interests.

The abuse begins with the expansive definition of “taxes.” In North End Realty v. Mattos, the court addressed the question of inclusionary zoning. East Greenwich had passed an inclusionary zoning ordinance that required developers of large apartment buildings to set aside a small portion for affordable housing. However, as is common around the country, the East Greenwich ordinance had allowed developers to pay an “in lieu of fee” instead of providing the affordable housing. The court ruled that this in lieu of fee was a tax not explicitly authorized by the General Assembly, and as such it was unconstitutional. However, instead of requiring the developer to build the affordable housing and not use the in lieu of fee option, they said that the developer could choose to pay the fee, call it unconstitutional, and neither pay it nor provide any affordable housing. Essentially, the court gutted inclusionary zoning until the General Assembly patched the enabling act. This kind of thing allows the courts to crush progressive municipal policies if they involve any kind of financial element (which they so often do).

The abuse continues by preventing municipalities from innovating with their property tax policies. In 2019, when the Providence City Council proposed restoring Taveras’s policy of a homestead exemption that phases out for high incomes, the Elorza administration threatened a lawsuit on the grounds that the policy hadn’t been explicitly authorized by the General Assembly. While we passed an enabling act through the Senate, Mattiello had it killed in the House.

New justices should take a narrower reading of the taxation supremacy clause, keeping it limited to actual taxes instead of including every possible fee and allowing reasonable innovation within broad guidelines set by the General Assembly.

Question 8: What do “the good of the whole” and “fairly distributed” clauses mean? Do they protect low-income Rhode Islanders from policies that disproportionately hurt them?

Article I, Section 2 begins, “All free governments are instituted for the protection, safety, and happiness of the people. All laws, therefore, should be made for the good of the whole; and the burdens of the state ought to be fairly distributed among its citizens.” On a fundamental level, this is quite radically progressive language. It could be used to argue, for instance, that the tax cuts for the rich were unconstitutional. Or that policies that disproportionately hurt low-income Rhode Islanders are unconstitutional. Progressives have not really made that argument, although corporate interests have used this clause to attack taxation. For instance, in Picerne v. DiPrete, several prominent Cranston developers successfully used the fair distribution of burdens clause to argue that it was unconstitutional for Cranston to try to raise revenue by cracking down on underassessments of apartment buildings. Expansive progressive goals could easily flow from this clause, but we must also guard against it being used to undermine taxation itself.

New justices should agree that these clauses do at least prevent extremely egregious cases of policies that hurt low-income people or help only the rich. And they should certainly agree to avoid Picerne-style reasoning to use these clauses to attack the fundamentals of taxation.

Question 9: Does the right to a jury trial prevent laws that excessively limit the amount of money corporations have to pay for hurting people? Put in more legalistic terms, what limits on torts are allowed in our state?

An awful lot of money rides on this question. Like many states, the Rhode Island Constitution provides a right to a jury trial, stating in Article I, Section 15 that “the right of trial by jury shall remain inviolate.” In other states, similar clauses have been held to strike down laws placing limits on the amount of damages that can be awarded in civil suits, which are mainly cases where a corporation is sued for monetary damages. Corporations don’t like being sued by people they hurt, and there is a broad national fight for so-called “tort reform” laws that limit the ability of people to win fair damages from corporations that illegally caused them harm. In the seminal Washington State case Sofie v. Fibreboard, for instance, such limits were struck down as unconstitutional on the basis of a nearly identical provision in the Washington State constitution. Laws that limit a jury’s ability to award damages infringe on the right to a jury trial.

This is a bit of a technical point, but the reason that we look to other state courts rather than to the federal level is that the Seventh Amendment of the United States Constitution has not been “incorporated” to apply to the states. So the state provisions are interpreted separately. Many states, such as Rhode Island, have stronger language than the Seventh Amendment, making this an “inviolate” right.

Rhode Island has a mess of limits on civil judgments against powerful actors. Many of these almost certainly would violate the Rhode Island constitution under a robust vision of the trial by jury clause, similar to the vision of other blue state courts. Enormous amounts of money is on the line here. Corporations can be made to pay their fair share for damage they cause if this clause is fully enforced.

It does cut the other way, I would argue, in one important respect. A common type of special legislation the General Assembly passes is what is known as a joint tortfeasors bill. (A tortfeasor is, in civil law, an entity that commits a tort, a civil violation. Typically, tortfeasors are corporations.) Favored by the trial lawyers, these bills do facilitate settlements in large civil suits, but in my view they also trample on the right to a jury trial. What happens is that we pass a special bill for a particular civil lawsuit where there are multiple tortfeasors, allowing one tortfeasor to reach a settlement with the plaintiffs that allows them to remove other tortfeasors’ rights to countersue to argue that the settling tortfeasor didn’t pay their fair share and has to contribute to a non-settling tortfeasor. To take a concrete example, in 2019 we passed a joint tortfeasors bill (which I opposed) for a tragic acrobatic accident at the Dunkin Donuts Center. There were three tortfeasors involved: the circus, the state authority running the Dunk, and the privatized management company the state authority had hired to manage the Dunk. Because of the bill we passed, if the circus settled, for instance, the state would not have been able to file a counter-motion demanding that the circus contribute to the state’s payment. Part of what I don’t like about these bills is, of course, that we’re passing a special bill to change the rules for one particular lawsuit. But I also believe that it violates the right to a jury trial because one tortfeasor cannot remove another tortfeasor’s right to have a jury trial on whether they are owed a contribution by a settling tortfeasor. I understand how it makes it easier for trial lawyers looking for settlements, but I also believe it is unfair, and it violates the Rhode Island Constitution. There is an effort by the trial lawyers to expand this rule to all civil suits, so it is likely that this issue will come up again soon in the General Assembly.

New justices should commit to a robust interpretation of how the right to a jury trial protects against limitations on civil lawsuits, similar to the protections found by the courts of other blue states.

Question 10: Do the “duty” clauses of the Rhode Island Constitution provide actually enforceable rights to education, library services, and environmental conservation?

Finally, we arrive at the famous “duty” clauses. In three places, the Rhode Island Constitution says that the General Assembly has a “duty” to ensure certain goals. Article I, Section 17 says that “it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.” Article I, Section 21 says that “in periods of emergency resulting from disasters caused by enemy attack,” the General Assembly “shall have the power and immediate duty” “to enact legislation permitting the convening of the general assembly at any place within or without the State of Rhode Island,” as well as to take over the powers of public officials incapacitated by the emergency. Finally, Article XII, Section 1 says that “it shall be the duty of the general assembly to promote public schools and public libraries, and to adopt all means which it may deem necessary and proper to secure to the people the advantages and opportunities of education and public library services.”

In a normal blue state court, this would actually mean something. In Massachusetts, for instance, Part II, Chapter V, Section II of the state constitution says that all “legislatures and magistrates” in the state have a “duty” to “cherish” “public schools and grammar schools,” and in McDuffy v. Secretary of the Executive Office of Education, the Massachusetts Supreme Judicial Court ruled that this language actually does “impose an enforceable duty on the magistrates and Legislatures of this Commonwealth to provide education in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community or district in which such children live.” Furthermore, in McDuffy, the Massachusetts Supreme Judicial Court ruled that Massachusetts was not then meeting that need, and the state legislature needed to “devise a plan and sources of funds sufficient to meet the constitutional mandate.”

The Rhode Island Supreme Court took a different approach. In City of Pawtucket v. Sundlun, the court ruled that, although “the right to an education is a constitutional right in this state,” because “the Legislature is endowed with virtually unreviewable discretion in this area, plaintiffs should seek their remedy in that forum rather than in the courts.” In practice, of course, this means that there might as well be no right to education in our state.

This interpretation of the education and libraries duty clause, of course, also affects the environmental conservation duty clause. As we watch our state’s remaining natural lands get swallowed up with development, as we watch pollution enforcement get gutted, as we watch carbon and methane pollution continue to spew into our air and fuel the climate crisis, this clause takes on special importance. If we had a normal blue state court, if this duty clause were ruled to actually mean something, we would have a right to environmental protection. And that would be incredibly significant.

When it comes to the duty for the General Assembly to continue to meet in “in periods of emergency resulting from disasters caused by enemy attack,” there is naturally an additional question of whether this clause requires the General Assembly to meet remotely during this pandemic. The question rests, of course, on whether the virus meets a sufficient definition of an “enemy,” or whether the intent was narrowly tailored to an armed invasion of the state.

For years, there has been an effort to gain our state the same constitutional protections as our neighbor. Our schools are struggling. Young Rhode Islanders deserve a right to education, a right that is actually enforced. All Rhode Islanders deserve to live in a state with adequate environmental conservation. So it is of paramount importance that new justices take an approach similar to the Massachusetts courts and state that the duty clauses grant rights that actually are enforceable.

This is not intended to be a comprehensive list of Rhode Island Constitutional issues. There are many more important questions. But these are questions I believe we need to raise in the confirmation process. Questions we need to talk about more. Questions we must think about as we review legislation. As the right has shown with the increasing aggressiveness of their judicial activism, the law is political. To protect our fundamental rights, progressives must engage in these debates and not just leave them to the conservatives.