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Supreme Court
No. 2008-335-M.P.
No. 2009-1-M.P.
(PC 07-6666)
William V. Irons                                                      :
v.                                                                    :
The Rhode Island Ethics Commission et al.                             :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.




Supreme Court
No. 2008-335-M.P.
No. 2009-1-M.P.
(PC 07-6666)
Dissent begins on Page 18
William V. Irons                                                                                 :
v.                                                                                               :
The Rhode Island Ethics Commission et al.                                                        :
Present:  Flaherty, Suttell, Robinson, JJ., and Williams, C.J. (ret.).
O P I N I O N
Justices Flaherty, Robinson, and Chief Justice Williams (ret.) for the Court.
“The purpose of the speech in debate clause is to ensure the
Legislature freedom in carrying out its duties.
“* * *
“This freedom ensures the separation of powers among the
coordinate branches of government.    Further, the fact that the
legislators can carry out their duties without being questioned ‘in
any other place’ allows the free flow of debate among legislators
and the maximization of an effective and open exchange of ideas.”
Holmes v. Farmer, 475 A.2d 976, 982 (R.I. 1984).
The case before us presents this Court with an unusual constitutional conundrum: at the
heart of the controversy are two conflicting constitutional provisions, the purpose of each of
which is to serve the proper functioning of our representative democracy.   One of the long-
acknowledged purposes of the Rhode Island Constitution’s speech in debate clause, article 6,
section                                                                                          5,  is  the  protection  of  individual legislators  from encroachment  by  the  coordinate
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branches of government and from legal challenges by disgruntled citizens; but, the legislators are
garbed with such protection only while engaged in carrying out their core legislative duties.   To
the framers of the various constitutions, the public is the ultimate beneficiary of this narrow
protection because the speech in debate clause assures an unfettered legislative process.   The
limited but important immunity conferred by this constitutional provision exists, in the words of
Thomas Jefferson, “in order to give to the will of the people the influence it ought to have
* * *.”1
At the same time, our Constitution contains another provision that is pertinent to the case
before us—namely, section 8 of article 3.   That provision mandates the establishment of an
ethics commission and the adoption of a code of ethics by the General Assembly and then states
that “[a]ll elected and appointed officials * * * shall be subject to the code of ethics.”
It is now our solemn duty to determine the applicability of these two constitutional
provisions to the case at bar.
I
Facts and Travel
On January 20, 2004, Robert P. Arruda and Beverly M. Clay filed a written complaint
with the Rhode Island Ethics Commission (Ethics Commission) against the then-president of the
Rhode Island Senate, William V. Irons (Senator Irons).2   The complainants, the chair and vice
chair, respectively, of Operation Clean Government  (an organization that describes itself as
“dedicated to promoting honest, responsible, and responsive state government”) alleged that,
1 8 Works of Thomas Jefferson 322-23 (1797), reprinted in 2 The Founders’ Constitution 336
(Philip B. Kurland & Ralph Lerner eds., 1987).
2 The Rhode Island Ethics Commission (Ethics Commission) is a constitutionally established
nonpartisan body that was created to adopt, enforce, and administer the Code of Ethics as set
forth in G.L. 1956 chapter 14 of title 36.   The Ethics Commission was “formed to oversee ethics
in State Government.”   In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d
1, 3 (R.I. 1992).
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despite being faced with conflicts of interest, Senator Irons had participated wrongfully in debate
and  had  voted  on  certain  legislation  affecting  companies  with  which  he  had  a  business
relationship.   Although the record is sparse with respect to the precise nature of Senator Irons’s
alleged conflicts of interest, it is evident that Senator Irons participated in legislative acts
concerning pharmacies while at the same time maintaining as his private clients companies with
strong ties to the pharmaceutical industry.
In its essence, the complaint filed by Mr. Arruda and Ms. Clay alleged that, because
Senator Irons, who at all relevant times was an insurance broker, had a pecuniary relationship
with CVS, Inc. (a major pharmacy retailer) and with Blue Cross & Blue Shield of Rhode Island
(a health insurer), he acted improperly when he voted against the Pharmacy Freedom of Choice
legislation in 1999 and 2000.3   Specifically, the complainants alleged that Senator Irons acted
wrongfully by  “deliberat[ing], consider[ing], and otherwise participat[ing] in a governmental
decision to affect pharmacy issues, while he was paid significant commissions by Blue Cross &
Blue Shield of Rhode Island, the provider of the CVS health-insurance plan covering more than
5,000 employees in Rhode Island.”   The complainants also asserted that Senator Irons had failed
to file the requisite statement of conflict of interest forms,4 had failed to file with the Ethics
3 The Pharmacy Freedom of Choice legislation would have allowed consumers to choose the
pharmacy at which they could fill their prescriptions; a consumer’s insurer would not be allowed
to restrict his or her choice of pharmacy to those designated by the insurer.
4 Section 36-14-6 provides, in relevant part, that:
“Any person subject to this code of ethics who, in the discharge of
his or her official duties, is or may be required to take an action,
make a decision, or refrain therefrom that will or can reasonably be
expected to directly result in an economic benefit to the person, or
spouse (if not estranged), or any dependent child of the person, or
business  associate  or  any  business  by  which  the  person  is
employed or which the person represents, shall, before taking any
such action or refraining therefrom:
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Commission the requisite financial statement,5 and had failed to disclose income received from
either CVS, Inc. or Blue Cross & Blue Shield of Rhode Island.6
The  Ethics  Commission  determined  that  the  complaint  alleged                                       “facts  sufficient  to
constitute a knowing and willful violation” of the Code of Ethics; and on March 3, 2004, the
Commission officially informed Senator Irons that it would investigate the allegations in the
complaint.  See G.L. 1956 § 36-14-12(c)(1).  After making the initial determination that the facts
alleged  in  the  verified  complaint  were  sufficient  to  state  a  cause  of  action,  the  Ethics
Commission conducted a preliminary investigation to determine whether probable cause existed
to support the allegations set forth in the complaint.                                                   (According to § 36-14-12(c)(3), if probable
cause does not exist, the charges must be dismissed.)
A  probable  cause  hearing  was  held  on  November  9,  2004.    After  conducting  an
investigation in accordance with the above-referenced statutory mandate, the Ethics Commission
issued an order and finding of probable cause for two counts of the complaint, and it dismissed
(1) Prepare a written statement sworn to under the penalties for
perjury describing the matter requiring action and the nature of the
potential conflict; if he or she is a member of a legislative body
and he or she does not request that he or she be excused from
voting, deliberating, or taking action on the matter, the statement
shall state why, despite the potential conflict, he or she is able to
vote and otherwise participate fairly, objectively, and in the public
interest; and
(2) Deliver a copy of the statement to the commission, and:
(i) If he or she is a member of the general assembly or of any
city or town legislative body, he or she shall deliver a copy of the
statement to the presiding officer of the body, who shall cause the
statement to be recorded in the journal of the body and, upon
request  of  the  member,  may  excuse  the  member  from  votes,
deliberations,  or  any  other  action  on  the  matter  on  which  a
potential conflict exists * * *.”
5 Section 36-14-16 requires all state elected officials to file an annual financial statement with the
Ethics Commission.
6 Section 36-14-17 sets forth the disclosures required in the financial statement.
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the remaining three counts.7     The Ethics Commission found that probable cause did exist with
respect to: (1) the allegation that Senator Irons had a substantial conflict of interest when he
participated  in  the  Senate  Corporations  Committee’s  consideration  of  pharmacy  choice
legislation in the 1999 and 2000 legislative sessions; and (2) the allegation that Senator Irons
used his public office to obtain financial gain for CVS, his client, during the same legislative
sessions.8
7 The Ethics Commission dismissed, for want of probable cause, the following three counts
alleged in the complaint: (1) “by acting as the insurance broker for [Blue Cross & Blue Shield of
Rhode Island’s] provision of health insurance coverage to CVS employees while participating in
the Senate Corporations Committee’s consideration of Pharmacy Freedom of Choice legislation
in the 1999 and 2000 legislative sessions, [Senator Irons] * * * violated [§ 36-14-5(b)]”; (2) in
failing “to file a notice of recusal with the Commission and the Senate, * * * [Senator Irons]
violated [§ 36-14-6]”; and (3) in failing “to disclose any income received from [Blue Cross &
Blue Shield of Rhode Island] or CVS on annual financial disclosure statements, * * * [Senator
Irons] violated [§ 36-14-17].”
8 It should be noted that, on March 11, 1999, Senator Irons had written a letter to the Ethics
Commission concerning “an issue soon to come under consideration by [him] in [his] role as a
Rhode Island Senator.”    In that letter, Senator Irons explained that he was an independent
insurance broker and that a bill was before the senate in which one of his clients had an interest.
He went on to state that, despite his client’s interest in the bill, the pending legislation “would in
no way modify the compensation structure of [his] business contract with that client.”   Senator
Irons closed the letter with a request for an advisory opinion concerning his participation in the
referenced  legislation,  and  he  assured  the  Ethics  Commission  that  he  would  answer  any
additional questions that would assist in their determination of the issue.    After reviewing
Senator Irons’s letter, the Ethics Commission responded to him in a letter indicating that he
could participate and vote on the pending legislation because his client would be no more or less
affected by the legislation than any other similarly situated individual or group; the letter further
stated that public policy considerations weighed in favor of Senator Irons’s participation in the
legislative process.
The Attorney General, in an amicus brief filed with this Court in connection with the
instant case, suggested that because of the above-referenced advisory letter from the Ethics
Commission to Senator Irons, we need not reach the constitutional issues implicated by this case.
Although we appreciate the Attorney General’s insightful suggestion, and we are troubled by the
existence of this advisory opinion, which appears to allow the very acts for which Senator Irons
now stands accused, we ultimately are convinced that, because the underlying issue presented is
one of immunity, whereas the existence of the advisory opinion presents Senator Irons with a
potential defense before the Ethics Commission, we must address the issue of immunity at this
juncture—since immunity bestows a right  “not to stand trial or face the other burdens of
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The record before this Court reflects that it was not until April 13, 2007, that there was
another filing with the Ethics Commission; on that date, Senator Irons demanded a jury trial
pursuant to article 1, sections 10 and 15, of the Rhode Island Constitution.9   On November 6,
2007,  Senator Irons filed a motion seeking dismissal of the remaining two counts in the
complaint; those counts alleged violations of §§ 36-14-5(a) and (d).10  The motion to dismiss was
predicated on Senator Irons’s contention that prosecution pursuant to those counts would violate
the speech in debate clause, article 6, section 5, of the Rhode Island Constitution.   Later that
month, the Ethics Commission held a hearing on both the motion to dismiss and the demand for
a jury trial.   On November 28, 2007, the Ethics Commission denied both Senator Irons’s motion
to have the outstanding allegations in the complaint dismissed as well as his demand for a jury
trial.
litigation * * * rather than [being] a mere defense to liability.”   Mitchell v. Forsyth, 472 U.S.
511, 526 (1985); see also Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir. 2009) (Selya, J.).
9
Article                                                                                              1, section                                                                                          10, of the Rhode Island Constitution guarantees that  “[i]n all criminal
                                                                                                     prosecutions, accused persons shall enjoy the right to a speedy and public trial, by an impartial
jury.”
Section 15 explains the importance of the right to a jury trial and provides that “[t]he
right of trial by jury shall remain inviolate.”
10 Section 36-14-5(a) reads:
“No person subject to this code of ethics shall have any interest,
financial or otherwise, direct or indirect, or engage in any business,
employment,  transaction,  or  professional  activity,  or  incur  any
obligation of any nature, which is in substantial conflict with the
proper discharge of his or her duties or employment in the public
interest and of his or her responsibilities as prescribed in the laws
of this state, as defined in § 36-14-7.”
Section 36-14-5(d) reads:
“No person subject to this code of ethics shall use in any way
his  or  her  public  office  or  confidential  information  received
through his or her holding any public office to obtain financial
gain, other than that provided by law, for him or herself or any
person within his or her family, any business associate, or any
business by which the person is employed or which the person
represents.”
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On December 13, 2007, Senator Irons filed a complaint in the Superior Court, in which
he contended that the Ethics Commission improperly had denied his motion to dismiss as well as
his demand for a jury trial.11   His arguments to the Superior Court were similar to those that he
had made before the Ethics Commission: viz., (1) that the protection afforded to him by the
speech in debate clause rendered him immune from prosecution with respect to the above-
referenced counts; and (2) that, if he was not immune, he had a constitutional right to a jury trial.
After a hearing with respect to these two issues in the Superior Court, the hearing justice granted
Senator Irons’s motion to dismiss the remaining two counts.  In so ruling, he held:
“[P]ast legislative acts performed by [Senator] Irons are prohibited
from inquiry by the Speech in Debate Clause.   Consequently, the
Ethics Commission is constitutionally precluded from questioning
[Senator] Irons about those acts.”
The hearing justice also addressed Senator Irons’s claim of a right to a jury trial, and he
concluded that the senator was not so entitled because the Ethics Commission proceedings
involved the adjudication of public rights, which type of adjudication he held falls within a
recognized exception to the right to be tried by jury.
The Ethics Commission thereafter petitioned this Court for a writ of certiorari in order to
obtain review of the Superior Court’s ruling relative to the speech-in-debate issue, and Senator
Irons cross-petitioned for a writ of certiorari with respect to his right to a jury trial.   We granted
both petitions and issued writs of certiorari.
11  In  his  complaint  in  the  Superior  Court,  Senator  Irons  named  as  defendants  the  Ethics
Commission, as well as James Lynch, Sr., Barbara Binder, George Weavill, Jr., Frederick K.
Butler, Ross E. Cheit, Richard Kirby, James V. Murray, and James C. Segovis, all in their
official capacities as members of the Ethics Commission.
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II
Analysis
When reviewing the issues raised in a writ of certiorari, this Court conducts a de novo
review with respect to all applicable questions of law.   Henderson v. Newport County Regional
Young Men’s Christian Association,  966 A.2d  1242,  1245-46  (R.I.  2009); see also Crowe
Countryside Realty Associates, Co., LLC v. Novare Engineers, Inc., 891 A.2d 838, 840 (R.I.
2006); Matter of Falstaff Brewing Corp. re: Narragansett Brewery Fire, 637 A.2d 1047, 1049
(R.I. 1994).   When conducting such review, “[w]e do not weigh the evidence * * *, but only
conduct our review to examine questions of law raised in the petition.”   Henderson, 966 A.2d at
1246 (quoting Crowe, 891 A.2d at 840).
The  speech  in  debate  clause,  found  in  article                                                    6,  section   5,  of  the  Rhode  Island
Constitution, provides: “For any speech in debate in either house, no member shall be questioned
in any other place.”   The plain and unequivocal language of the clause “confers a privilege on
legislators from inquiry into their legislative acts or into the motivation for actual performance of
legislative acts that are clearly part of the legislative process.”  Holmes v. Farmer, 475 A.2d 976,
983 (R.I. 1984).12   It is on the basis of this constitutional provision that Senator Irons claims
immunity from an enforcement action by the Ethics Commission.
The Ethics Commission, however, argues that sections 7 and 8 of article 3 of the Rhode
Island Constitution (referred to as the Ethics Amendment) created a narrow exception to the
speech in debate clause.   According to the Ethics Commission, those provisions authorize it to
12 The importance of this Court’s decision in Holmes v. Farmer, 475 A.2d 976 (R.I. 1984), to our
reasoning with respect to the instant case cannot be over-emphasized.  The controversy that gave
rise to that litigated case eventually resulted in a particularly scholarly opinion by now-retired
Justice Donald Shea, which opinion constitutes especially powerful precedent for the present
Court.
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investigate and pursue enforcement actions against legislators for suspected violations of the
Code of Ethics—even regarding their core legislative acts.
Speech-in-debate immunity is a venerable and important product of historical travails
(and their resolution) in England that occurred long before the events of 1776, but that immunity
was most definitely embraced by this country once independence was achieved.   This Court
previously has detailed the history of this privilege, and we have noted that it was asserted by
members of the English Parliament as early as 1455, with its first known written appearance
found in the Speaker’s Petition of 1542.   Holmes, 475 A.2d at 981, 981 n.8.   The importance of
the privilege was not lost on the founders of this nation; it was separately included in the Articles
of Confederation as well as in the constitutions of several states; and eventually it was included
in the United States Constitution, in which it was included with “virtually no debate.”  Id. at 982.
The language of the speech in debate clause of this state, included in our first written constitution
in 1842,13 as well as that of the similar provision in the United States Constitution, was derived
from the English Bill of Rights of  1689—a milestone in the centuries-long power struggle
between the Parliament and the monarchy.   Holmes, 475 A.2d at 981-82; see also Tenney v.
Brandhove, 341 U.S. 367, 372 (1951).   More recently, the electorate of this state reaffirmed the
speech in debate clause, when, in 1986, the voters adopted a neutral rewrite of the then-existing
provisions of the Rhode Island Constitution.14
13 In the leading case of Tenney v. Brandhove, 341 U.S. 367, 374 n.3 (1951), the United States
Supreme Court noted that Connecticut and Rhode Island provided for the privilege “in the first
constitutions enacted [in 1818 and 1842 respectively] to replace their uncodified organic law.”
14 The entire text of the constitution (including the speech in debate clause) was attached to a
handbook distributed by the 1986 Constitutional Convention to voters before the 1986 election.
The handbook was entitled “Convention Alert: Constitution Rewrite and Resolutions Approved
by the  1986 Rhode Island Constitutional Convention.”    The first resolution,  “A Resolution
Relating to A Neutral Rewrite of the Constitution,” specifically noted that adoption of the neutral
rewrite of the constitution would not “change the intent of any section.”
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The speech in debate clause “protects the institution of the Legislature itself from attack
by either of the other co-equal branches of government.”  Holmes, 475 A.2d at 985.  Further, this
Court has expressly stated that one of the purposes of the speech in debate clause is “to protect
individual legislators ‘from executive and judicial oversight that realistically threatens to control
his conduct as a legislator.’”  Id. (quoting Gravel v. United States, 408 U.S. 606, 618 (1972)).  In
addition, it should go without saying that, because the speech in debate clause “ensure[s] the
Legislature  freedom  in  carrying  out  its  duties,”  the  people  are  the  intended  and  ultimate
beneficiaries.  See id. at 982.
As this Court noted previously—invoking the wisdom of the nation’s earliest published
case  interpreting  the  legislative  privilege—the  privilege  exists                                   “not  with  the  intention  of
protecting the members [of the Legislature] against prosecutions for their own benefit, but to
support the rights of the people, by enabling their representatives to execute the functions of their
office, without fear of prosecutions, civil or criminal.”  Holmes, 475 A.2d at 982 (quoting Coffin
v. Coffin, 4 Mass. 1, 27 (1808)); see also United States v. Brewster, 408 U.S. 501, 507 (1972)
(“The immunities of the Speech or Debate Clause were not written into the Constitution simply
for the personal or private benefit of Members of Congress, but to protect the integrity of the
legislative process by insuring the independence of individual legislators.”).   Without fear of
encroachment by the coordinate branches of government or by legal challenges brought by
disgruntled citizens, the people’s representatives may engage in “the free flow of debate among
legislators and the maximization of an effective and open exchange of ideas.”  Holmes, 475 A.2d
Likewise, the “Voter’s Guide to Fourteen Ballot Questions For Constitutional Revision,”
also released by the Constitutional Convention of  1986, noted:  “The  1986 Convention has
approved  a  rewritten  version  of  the  Constitution  that  deletes  the  language  cancelled  by
amendments  or  court  decisions,  but  makes  no  substantive  changes  in  the  Constitution.”
(Emphasis in original.)
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at 982.   Indeed, the legislative privilege serves as but one of many constitutional checks and
balances that ensure that the General Assembly can perform its duties without encroachment
from the other branches.  Id.
This  Court  has  interpreted  the  speech  in  debate  clause  to  provide  legislators  with
“absolute” immunity from questioning “by any other branch of government for their acts in
carrying out their legislative duties relating to the legislative process.”  Holmes, 475 A.2d at 983;
see also Marra v. O’Leary, 652 A.2d 974, 975 (R.I. 1995).   We wish to stress in the strongest
possible terms, however, that it in no way grants a legislator the right to transgress the Code of
Ethics or any other law.   Legislators are held accountable for violations of the Code of Ethics,
and they are not immune for actions which violate that code.   The only exceptions are those in
which the speech in debate clause of the constitution is implicated.   The immunity afforded
merely  precludes  the  Ethics  Commission  from  prosecuting  within  a  narrow  class  of  core
legislative acts.   Actions of legislators “in proposing, passing, or voting upon a particular piece
of legislation” are core legislative acts that fall                                                      “clearly within the most basic elements of
legislative privilege.”   Holmes, 475 A.2d at 984.   In short, “as long as [a legislator’s] challenged
actions, stripped of all considerations of intent and motive, were legislative in character, the
doctrine of absolute legislative immunity protects them from such claims.”   Maynard v. Beck,
741 A.2d 866, 870 (R.I. 1999).
Activities that remain unprotected by this immunity include, but are not limited to:
speeches delivered outside of the legislature; political activities of legislators; undertakings for
constituents; assistance in securing government contracts; republication of defamatory material
in press releases and newsletters; solicitation and acceptance of bribes; and criminal activities,
even  those  committed  to  further  legislative  activity.    Holmes,                                   475  A.2d  at  983;  see  also
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Hutchinson v. Proxmire, 443 U.S. 111, 127-28, 133 (1979); United States v. Helstoski, 442 U.S.
477, 489 (1979); Gravel, 408 U.S. at 621 n.12; Brewster, 408 U.S. at 512.
Here, the actions of Senator Irons, as alleged in the Ethics Commission’s complaint,
were, as the parties both agree, core legislative acts. Senator Irons participated in debate,
considered legislation affecting pharmacies, and voted, in both                                        1999  and  2000, to oppose
legislation denominated as the Pharmacy Freedom of Choice Act.    These are precisely the
activities concerning which the Ethics Commission has charged him.
Although the actions of Senator Irons, as alleged in the Ethics Commission’s complaint,
fall within the ambit of the speech in debate clause, the Ethics Commission argues that the Ethics
Amendment created a narrow repeal of the speech in debate clause by implication, allowing the
Ethics Commission to pursue an enforcement action against the Senator for alleged violations of
the Code of Ethics.
The Ethics Amendment, like the speech in debate clause, was not the product of a
vacuum but rather of specific historical circumstances.   In 1992, the then Justices of this Court
acknowledged in In re Advisory Opinion to the Governor (Ethics Commission), 612 A.2d 1, 11
(R.I. 1992),15 that, prior to the amendment’s adoption “widespread breaches of trust, cronyism,
15 Because our dissenting colleague relies heavily on In re Advisory Opinion to the Governor
(Ethics Commission), 612 A.2d 1 (R.I. 1992), we pause to note that this Court has long held that
“while an advisory opinion rendered by this court is entitled to respect, it is advisory only, and
without weight as legal precedent.”   Romeo v. Cranston Redevelopment Agency, 105 R.I. 651,
656, 254 A.2d 426, 430 (1969).   In rendering an advisory opinion, the Justices of this Court “do
not speak ex cathedra, from the chair of judgment, but only as consultors somewhat like the
jurisconsults under the Roman law.   However sound the opinion may be, it carries no mandate.
For this reason it is not an exercise of our judicial power.”  Opinion to the Governor, 93 R.I. 262,
264, 174 A.2d 553, 554 (1961).  In accordance with what has long been our practice, we look for
primary precedential guidance to this Court’s opinions stemming from litigated cases, rather than
to opinions that are merely advisory.   We conclude that binding precedent does exist to answer
the particular question posed to us—namely, Maynard v. Beck, 741 A.2d 866 (R.I. 1999), Marra
v O’Leary, 652 A.2d 974 (R.I. 1995), and Holmes v. Farmer, 475 A.2d 976 (R.I. 1984).
- 12 -




impropriety,  and  other  violations  of  ethical  standards  decimated  the  public’s  trust  in
government.”   In response, an ethics committee was created as part of the 1986 Constitutional
Convention to consider effective measures of ethical reform.   Id. at 2.   The ethics committee
recommended that an independent nonpartisan ethics commission with sweeping powers should
be created to adopt a code of ethics and oversee ethics in state and local government.   Id. at 3.
The state’s electorate approved these recommendations, and they were codified in article 3 of the
Rhode Island Constitution.  They provide as follows:
“Section 7. Ethical conduct. - The people of the State of Rhode
Island believe that public officials and employees must adhere to
the highest standards of ethical conduct, respect the public trust
and the rights of all persons, be open, accountable and responsive,
avoid the appearance of impropriety and not use their position for
private gain or advantage. Such persons shall hold their positions
during good behavior.”
“Section 8. Ethics commission - Code of Ethics. - The general
This Court is not alone in viewing advisory opinions as lacking in the sort of precedential
value that would trigger the doctrine of stare decisis.   For example, the Supreme Judicial Court
of Massachusetts unanimously wrote as follows in Commonwealth v. Welosky, 177 N.E. 656
(Mass. 1931):
“When the same questions [as had earlier been the subject of our
advisory  opinion]  are  raised  in  litigation,  the  justices  then
composing the court are bound sedulously to guard against any
influence flowing from the previous consideration, to examine the
subject anew in the light of arguments presented by parties without
reliance upon the views theretofore expressed, and to give the case
the most painstaking and impartial study and determination that an
adequate appreciation of judicial duty can impel.”  Id. at 658.
Moreover, we conclude that the 1992 advisory opinion, while helpful to set forth a factual
background for the Ethics Amendment, does not usefully guide our decision in this case.   In the
1992 advisory opinion, the then-sitting Justices of this Court  (none of whom are presently
members of this Court) opined that the Ethics Amendment gave the Ethics Commission an
affirmative grant of power which therefore implied a limitation on the General Assembly with
respect  to  enacting  ethics  legislation.    In  this  instance,  of  the  two  diametrically  opposed
constitutional provisions we are attempting to reconcile, we cannot make the inference, based on
our rules of constitutional construction as explained infra, that the Ethics Amendment similarly
implies a limitation on the speech in debate clause.
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assembly  shall  establish  an  independent  non-partisan  ethics
commission which shall adopt a code of ethics including, but not
limited  to,  provisions  on  conflicts  of  interest,  confidential
information, use of position, contracts with government agencies
and financial disclosure.   All elected and appointed officials and
employees of state and local government, of boards, commissions
and agencies shall be subject to the code of ethics.   The ethics
commission shall have the authority to investigate violations of the
code of ethics and to impose penalties, as provided by law; and the
commission shall have the power to remove from office officials
who are not subject to impeachment.”
In support of its contention that the Ethics Amendment created a narrow exception to the
speech in debate clause, the Ethics Commission points to the language in section 8 of article 3,
which section states that “All elected and appointed officials * * * shall be subject to the code of
ethics.”   There is no doubt that a frequently cited canon of constitutional interpretation counsels
against creating an exception to a constitutional provision when the plain language of that
provision does not expressly provide for exception.   See Chester James Antieau, Constitutional
Construction 32 (1982).  As Chief Justice John Marshall observed, “It would be dangerous in the
extreme to infer from extrinsic circumstances, that a case for which the words of an instrument
expressly provide, shall be exempted from its operation.”   Sturges v. Crowninshield, 17 U.S. (4
Wheat.) 122, 202 (1819).   Thus, our conundrum: the language of both provisions is unequivocal
and absolute, neither admits of any exceptions.    Significantly, there is no indication in the
language of the Ethics Amendment that it was intended to abrogate speech-in-debate immunity,
and  we  are  resolutely  disinclined  to  abridge  such  a  long-standing  and  widely  accepted
constitutional  provision  in  the  absence  of  an  express  and  uncontroverted  manifestation  of
electoral intent.16
16 We respectfully part company with our dissenting colleague’s focus on what he believes to be
the underlying intent of the Ethics Amendment.   When faced with clear language, a court need
not and should not concern itself with what may have been the intent of the drafters or of the
- 14 -




Moreover, neither provision is appreciably more specific than the other; thus we cannot
hold, as would be proper if one were more specific, that the more specific provision prevails over
the less so.   See Felkner v. Chariho Regional School Committee, 968 A.2d 865, 870 (R.I. 2009)
(“When confronted with competing statutory provisions that cannot be harmonized, we adhere to
the principle that the specific governs the general * * *.”) (internal quotations omitted).17   Nor
can we rely on the maxim of constitutional construction that the later-enacted amendment is
preferred over the earlier, because the Ethics Amendment and the preexisting provisions were
both voted on and approved by the people on the same day.
We conclude, as we must, that both constitutional provisions at issue are specific,
unequivocal, do not allow for any exception, and both were affirmed by the voters on the same
day.   Yet, they stand in diametrical opposition to each other.   We cannot accept an invitation to
read into the Ethics Amendment an unexpressed repeal of such an ancient and venerable
hallmark of our form of government as is the immunity provided in the speech in debate clause
without a clear and explicit directive for such an exception in the language of the Ethics
electorate.   See McKenna v. Williams, 874 A.2d 217, 232 (R.I. 2005) (“When a constitutional
provision is clear, it speaks for itself.   In the face of a clear constitutional provision (assuming it
does not lead to absurd results), it is not necessary to anguish over what might have been the
intent of the electorate.”); Davis v. Hawksley, 119 R.I. 453, 455, 379 A.2d 922, 923 (1977); see
generally Connecticut National Bank v. Germain, 503 U.S. 249, 253-54 (1992).   In this case, we
have two clear constitutional provisions; it is our responsibility to attempt to reconcile those two
provisions in such a way that neither will be devoid of all meaning.
Even if we were to attempt to discern the intent of the framers, apart from the language
employed in the text, in order to resolve this constitutional conundrum, we could not.   There is
no evidence in the minutes of the 1986 Constitutional Convention that the ethics committee
researched, reviewed, or discussed the effect of the proposed Ethics Amendment on other
constitutional provisions.    Similarly, we are not aware of any basis upon which we could
intelligently divine the intent of the electorate.
17  Though  the  case  cited  in  the  text  involves  statutory                                           (as  opposed  to  constitutional)
interpretation, we recently noted that the same analytic principles often apply when interpreting
our constitution.   See In re Request for Advisory Opinion from the House of Representatives
(Coastal Resources Management Council), 961 A.2d 930, 935 n.6 (R.I. 2008).
- 15 -




Amendment itself.   Because no such language is present, we decline to recognize any partial
repeal of speech-in-debate immunity.
Because we hold that the Ethics Amendment does not create an exception to the speech
in debate clause and, because the alleged actions of Senator Irons were core legislative acts
entitled to speech-in-debate immunity, we hold that the Ethics Commission may not question
him with respect to those acts.   We do not accept the Ethics Commission’s argument that such a
holding on our part emasculates the entire Code of Ethics with respect to members of the General
Assembly.   Indeed, the Ethics Commission remains responsible to enforce the Code of Ethics
against legislators when they are engaged in activities other than core legislative activities.   As
this Court previously has indicated, any claims of speech-in-debate immunity “going beyond
what is needed to protect legislative independence are to be closely scrutinized.”   Holmes, 475
A.2d at 983 (quoting Hutchinson, 443 U.S. at 426).
We wish to emphasize that this decision is predicated on our respect for the speech-in-
debate immunity—a right that is expressly guaranteed by our constitution and that is widely
recognized in this country and most of the English-speaking world.   Unquestionably, this right
could be modified (or even obviated) by a sufficiently explicit constitutional amendment—but
we perceive no such explicitness in the language of the 1986 Ethics Amendment.   If the citizens
of Rhode Island wish to empower the Ethics Commission to investigate and prosecute legislators
with respect to their legislative actions, notwithstanding the operation of the speech in debate
clause, they most certainly have the power to do so.
Having decided that Senator Irons is immune from prosecution under the speech in
debate clause, we need not, and therefore do not, reach the issue of whether he has the right to be
tried by a jury.   Senator Irons contends that the violations with which he is charged (essentially,
- 16 -




misconduct by a public official and conflicts of interest) existed when the state constitution was
adopted and were considered criminal in nature at that time, therefore affording him the right to
be tried by jury.   The Ethics Commission, on the other hand, maintains that because this Court
adopted the public-rights doctrine in National Velour Corp. v. Durfee, 637 A.2d 375, 379 (R.I.
1994), exempting the adjudication of public rights from the jury-trial requirement, Senator Irons
has no right to be tried by a jury.
Although we do pause to note that Senator Irons has presented a formidable argument to
support his position contending that the public-rights doctrine may not apply, we shall leave the
analysis of that argument for another day—in keeping with our long-standing policy of not
reaching constitutional issues that prove unnecessary for the disposition of the case at bar.   See,
e.g., In re Brown, 903 A.2d 147, 151 (R.I. 2006) (“Neither this Court nor the Superior Court
should decide constitutional issues unless it is absolutely necessary to do so.”); Mathieu v. Board
of License Commissioners, Town of Jamestown,  115 R.I.  303,  307,  343 A.2d  1,  3  (1975)
(“While there may be some merit in petitioner’s argument that [the statute] is unconstitutional,
we will consider such a contention only where determination of such an issue is dispositive of
the case before us.”); State v. Berberian, 80 R.I. 444, 445, 98 A.2d 270, 270-71 (1953) (“[T]his
court will not decide a constitutional question raised on the record when it is clear that the case
before it can be decided on another point and that the determination of such question is not
indispensably necessary for the disposition of the case.”); see generally Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring); Hudson Savings Bank
v. Austin, 479 F.3d 102, 106 (1st Cir. 2007).
Conclusion
For the reasons stated herein, we affirm the judgment of the Superior Court with respect
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to  its  ruling  as  to  the  applicability  of  the  speech  in  debate  clause  in  the  Rhode  Island
Constitution.  It not being necessary to do so, we express no opinion with respect to the Superior
Court’s ruling on the jury trial issue.18  The record may be remanded to the Superior Court.
Justice Suttell, dissenting.   Although I concur with much of the majority’s analysis
concerning the two conflicting constitutional provisions at issue in this appeal, I respectfully
disagree with its ultimate conclusion.
As the majority cogently articulates, speech in debate immunity has long been an integral
protection enjoyed by legislative bodies in the common-law tradition, one that plays a vital role
in ensuring the independence of the Legislature. See Holmes v. Farmer, 475 A.2d 976, 982 (R.I.
1984)  (the  speech  in  debate  clause  enables  representatives  to  execute  the  core  legislative
functions of their office without fear of civil or criminal prosecution and ensures the separation
of powers among the coordinate branches of government); see also United States v. Brewster,
408 U.S. 501, 516, 525 (1972).  Without question, the speech in debate clause, codified in article
6, section 5, of the Rhode Island Constitution, has a rich and storied history.   Its roots can be
traced back as far as 1455, amidst the bitter and protracted dispute between Parliament and the
English Crown. See Holmes,  475 A.2d at  981 nn.8 &  9.   It perhaps most famously found
expression in the English Bill of Rights of 1689, adopted during the Glorious Revolution that
marked the demise of the Stuart monarchy. See Robert J. Reinstein & Harvey A. Silverglate,
Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 1129-30 (1973).
18 We would like to express our gratitude to the amici curiae for the helpful and informative
briefs submitted to this Court.
- 18 -




I might quibble with the majority’s assertion that “[t]he plain and unequivocal language
of the clause ‘confers a privilege on legislators from inquiry into their legislative acts or into the
motivation for actual performance of legislative acts that are clearly part of the legislative
process.’ Holmes, 475 A.2d at 983.”   Rather, I believe, the full breadth of the privilege largely
has been shaped by case precedent.  As the United States Supreme Court has explained,
“prior  cases  have  plainly  not  taken  a  literalistic  approach  in
applying the privilege.  The Clause * * * speaks only of ‘Speech or
Debate,’  but  the  Court’s  consistent  approach  has  been  that  to
confine the protection of the Speech or Debate Clause to words
spoken  in  debate  would  be  an  unacceptably  narrow  view.
Committee reports, resolutions, and the act of voting are equally
covered; ‘[i]n short, * * * things generally done in a session of the
House by one of its members in relation to the business before it.’”
Gravel v. United States, 408 U.S. 606, 617 (1972) (extending the
privilege to legislative aides) (quoting Kilbourn v. Thompson, 103
U.S. 168, 204 (1881)).
In either case, the privilege is firmly established in this jurisdiction.  In Holmes, 475 A.2d at 981,
this Court’s first opportunity to interpret and apply the speech in debate clause of the Rhode
Island Constitution, the Court explained that it would look to “the interpretation of a similar
provision in the United States Constitution.”   The Holmes Court then carefully delineated the
scope of the speech in debate clause under the Rhode Island Constitution stating:
“The speech in debate clause contained in Rhode Island’s
Constitution confers a privilege on legislators from inquiry into
their legislative acts or into the motivation for actual performance
of legislative acts that are clearly part of the legislative process.
* * * Legislators should not be questioned by any other branch of
government for their acts in carrying out their legislative duties
relating to the legislative process.   We go no further at this time
than to hold that the speech in debate clause limits judicial inquiry
into words or actions that are clearly a part of the legislative
process.” Id. at 983.
In the case at bar, as the parties have acknowledged, the actions for which former Senator Irons
stands accused fall squarely within the ambit of the speech in debate clause.
- 19 -




Nevertheless, it is an immutable principle of our constitutional government that
the people retain the right to amend their constitution.  The very first section of the Rhode Island
Constitution declares that “‘the basis of our political systems is the right of the people to make
and alter their constitutions of government.’” R.I. Const. art. 1, sec. 1.  In 1986, the people of this
state exercised this right by substantially altering our constitution, most significantly by the
adoption of the ethics amendment, codified as sections 7 and 8 of article 3 of the Rhode Island
Constitution.   It is my opinion that the ratification of this amendment fundamentally changed the
structure of government in order to achieve a framework for more responsible and accountable
governance.   As the majority properly recognizes, the language of the ethics amendment is
indeed plain and unequivocal: “All elected and appointed officials * * * shall be subject to the
code of ethics.” R.I. Const. art. 3, sec. 8.
At the same time, however, the people reaffirmed the speech in debate clause.   I agree
with the majority that the ethics amendment and the speech in debate clause are two conflicting
constitutional provisions.   If both are accorded their broadest readings, neither can flourish to
their fullest extents.   Because repeals by implication are disfavored by the law, we make every
effort to harmonize statutory and constitutional provisions to avoid implied repeals. In re Request
for Advisory Opinion from the House of Representatives  (Coastal Resources Management
Council), 961 A.2d 930, 935-36 n.7 (R.I. 2008) (CRMC); see also Such v. State, 950 A.2d 1150,
1156 (R.I. 2008).   Harmonization, however, is not possible in this case; I share the majority’s
view that the two provisions “stand in diametrical opposition to each other.”   Accordingly, these
provisions being irreconcilably repugnant, one provision must necessarily bend to the other.  The
majority resolves this conundrum by declining “to abridge such a long standing and widely
accepted constitutional provision in the absence of an express and uncontroverted manifestation
- 20 -




of electoral intent.”   By doing so, however, it perforce vitiates the applicability of the ethics
amendment to legislators with respect to their performance of legislative activities, contrary to
the plain and unambiguous language of the ethics amendment.   In essence, the majority chooses
to accord greater import to “an ancient and venerable hallmark of our form of government” than
to the more newly minted ethics amendment.19
I would take a different approach to this vexing constitutional dilemma by employing the
principles of constitutional interpretation this Court has repeatedly applied, over a span of
decades, with little or no variation in our methodology.   As we explained in Riley v. Rhode
Island Department of Environmental Management, 941 A.2d 198, 205 (R.I. 2008):
“In construing provisions of the Rhode Island Constitution,
our ‘chief purpose is to give effect to the intent of the framers.’ In
re Advisory Opinion to [the] Governor (Ethics Commission), 612
A.2d 1, 7 (R.I. 1992) (citing State ex. rel. Webb v. Cianci, 591
A.2d 1193, 1201 (R.I. 1991)); Bailey v. Baronian, 120 R.I. 389,
391,  394 A.2d  1338,  1339  (1978); Opinion of the Court to the
House of Representatives,  45 R.I.  289,  293,  120 A.  868,  870
(1923).  The  historical  context  is  important  in  determining  the
scope of constitutional limitations because “‘a page of history is
worth  a  volume  of  logic.’”  In  re  Advisory  Opinion  to  the
Governor,                                                                                              688  A.2d   288,   291   (R.I.   1997)   (quoting  Kass  v.
Retirement Board of Employees’ Retirement System,  567 A.2d
19 In my opinion, it is not for this Court to decide the best framework for our state government; it
is the province of this Court to effectuate the framework of government that the people intended
to create.  We have previously declared,
“Even  to  the  shock  and  dismay  of  constitutional
theoreticians, the people may add provisions dealing with ‘non-
fundamental’ rights, as well as provisions bearing the most tenuous
of  relationships  to  the  notion  of  what  constitutes  the  basic
framework of government. * * * In altering their constitution, the
question of ‘[h]ow power shall be distributed by a state among its
government organs is commonly, if not always, a question for the
state  itself.’”  In  re  Advisory  Opinion  to  the  Governor                                         (Ethics
Commission),  612 A.2d  1,  15  (R.I.  1992)  (Ethics Commission)
(quoting Omaha National Bank v. Spire,  389 N.W.2d  269,  275
(Neb. 1986) and Highland Farms Dairy, Inc. v. Agnew, 300 U.S.
608, 612 (1937)).
- 21 -




358, 360 (R.I. 1989) and Justice Oliver Wendell Holmes in New
York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65
L.Ed. 963 (1921)). Therefore, this Court properly consults extrinsic
sources, including  ‘the history of the times and examine[s] the
state of affairs as they existed when the constitution was framed
and adopted.’ [City of Pawtucket v.]Sundlun, 662 A.2d [40,] 45
[(R.I. 1995)] (citing In re Advisory Opinion to the Governor, 612
A.2d at 7).
“We ‘employ the well-established rule of construction that
when words in the constitution are free of ambiguity, they must be
given  their  plain,  ordinary,  and  usually  accepted  meaning.’
Sundlun,  662 A.2d at  45  (citing In re Advisory Opinion to the
Governor, 612 A.2d at 7). Moreover, ‘every clause must be given
its due force, meaning and effect and that no word or section must
be assumed to have been unnecessarily used or needlessly added,’
and we must ‘presume the language was carefully weighed and its
terms imply a definite meaning.’ In re Advisory Opinion to the
Governor,                                                                                              612  A.2d  at                                                       7   (quoting  Kennedy  v.  Cumberland
Engineering Co., 471 A.2d 195, 198 (R.I. 1984) and Bailey, 120
R.I. at 391, 394 A.2d at 1339).”
In 1993, five justices of this Court responded to a question propounded by the Governor
concerning the authority of the ethics commission to adopt a code of ethics vis-à-vis the plenary
legislative power of the General Assembly, which power also had been reaffirmed by the 1986
electorate. See R.I. Const. art. 6, sec. 10 (repealed 2004).   I find their advisory opinion, albeit
nonbinding, to be very persuasive with respect to the issue presented in this appeal.20   In that
case,  the  justices  noted  that                                                                      “the  electorate  voted  overwhelmingly  to  approve  the  ethics
amendment” and that the task then before the Court was “to determine precisely the effect of that
particular  constitutional  amendment.”  In  re  Advisory  Opinion  to  the  Governor                  (Ethics
Commission), 612 A.2d 1, 7 (R.I. 1992) (hereinafter Ethics Commission).   We are confronted
with a similar task in this appeal.
20  Although  a  nonbinding  opinion,  the  justices  in  Ethics  Commission  were  applying
precedentially established rules of constitutional construction consistently applied by this Court.
- 22 -




The justices began their analysis by stating our well established rule that “[i]n construing
constitutional amendments, our chief purpose is to give effect to the intent of the framers.”
Ethics Commission, 612 A.2d at 7.   They noted that in so doing it is proper to consult extrinsic
sources, including the proceedings of the constitutional convention itself. Id.   In addition, they
cited the long-standing principle expounded by the United States Supreme Court in Rhode Island
v. Massachusetts, 37 U.S. (12 Pet.) 657, 723 (1838) that “[i]n the construction of the constitution,
we must look to the history of the times, and examine the state of things existing when it was
framed and adopted * * *.” See also Bailey v. Baronian, 120 R.I. 389, 391-92, 394 A.2d 1338,
1339 (1978).   In Ethics Commission, 612 A.2d at 2, the justices undertook a comprehensive
examination of the history of the times and concluded:
“[T]he years preceding this state’s 1986 constitutional convention
were marked by scandal and corruption in both state and local
government.    As a result the overwhelming majority of Rhode
Island’s citizens were at the very least distrustful of their elected
and appointed officials and of government as a whole.   In response
to public outcry for reform at all levels of government, an ethics
committee was set up as part of the constitutional convention and
given the task of examining unethical governmental conduct and
proposing  measures  to  bring  about  ethical  reform  that  would
ultimately restore the public trust.”
Observing that the delegates who compose a constitutional convention are agents of the
people                                                                                                 “‘and  as  such  derive  their  power  and  authority  solely  from  the  people,’”  Ethics
Commission, 612 A.2d at 7, the Ethics Commission justices reviewed the proceedings of the
1986 constitutional convention to gain “valuable insight into the intent of the framers * * *.” Id.
at                                                                                                     9-10.    In doing so, they cited the following comments from the transcript of an ethics
committee meeting held on May 22, 1986:
“Delegate Gelch: [T]he tragedy of what we have to do here
is that we have to leave the implementation of a code of ethics to
the thoughts [sic] [fox] guarding the chicken coop because once
- 23 -




again, it’s the old statement we all love our legislature, but we
don’t - when we look at the whole legislature, we don’t trust the
legislature.
“Delegate Philips:   I think we should require all of those to
follow  a  detailed  code  of  ethics  which  we  would  require  the
conflict  of  interest  commission  or  successor  agency  to  draft,
promulgate, and implement.
“* * *
“Delegate Lacouture:   Maybe some of our concerns can be
resolved if instead of relying on the structure to come up with the
code of ethics or the prohibition - let this commission do that.
“Delegate Milette:   You know, that’s a new idea, and I like
it * * *.                                                                                            [W]e would direct that a code of ethics be developed * * *
[T]he code of ethics will be developed, and put the responsibility
on the Conflict of Interest Commission instead of on the state
legislature.   Now that takes the fox away from the chickens * * *.
What I would like to see is to make sure it just doesn’t die at the
table, that it gets passed on to a responsible body which we would
spell out to make the code of ethics become a reality.   Now if we
are all concerned about the state legislature doing it or doing it
right, let’s take it away from them.   Let’s give it to another body.”
Id. at 10.
Based on their review of the convention records, the justices concluded that the primary intent of
the framers “was to empower the [ethics] commission with the authority to develop a code of
ethics, to investigate violations, and to enforce its provisions, always subject to review by the
judicial branch of government consistent with the Constitution.” Id. at 10-11.
The justices then analyzed the history of the times and the state of things as they
existed when the constitution was framed and adopted in 1986. Ethics Commission, 612 A.2d at
11.   They noted the “scandal and corruption at all levels of government” that preceded the
convention, stating “widespread breaches of trust, cronyism, impropriety, and other violations of
ethical standards decimated the public’s trust in government.” Id. Based on their analysis, the
justices concluded that “the basic motivating factor in enacting the ethics amendment was to
restore the public’s trust in government * * *.” Id. at 11-12.
- 24 -




Noting that “it is permissible to examine election-brochure arguments in construing a
constitutional amendment adopted by popular vote,” Ethics Commission, 612 A.2d at 8, the
justices also considered the voters’ guide that was sent to each voter household prior to the
electorate’s approval of the ethics amendment.  The guide detailed fourteen resolutions that were
to be presented to the voters, including Question 6, which provided in pertinent part:
“ETHICS IN GOVERNMENT * * * Shall an ethics commission
be established with authority to adopt a code of ethics and to
discipline  or  remove  public  officials  and  employees  found  in
violation of that code? * * *
“B. Ethics Commission:   The general assembly would be directed
to establish a non-partisan ethics commission that would enforce a
code of ethics for all public officials, state and local, elected and
appointed.    The  commission  would  have  power  to  investigate
charges, impose penalties and to remove officials who are not
subject to impeachment * * *.” Id. at 12.
The justices also noted that the ethics resolution as it appeared on the ballot provided in pertinent
part:
“(b) The General Assembly shall establish an independent non-
partisan ethics commission which shall adopt a code of ethics
including, but not limited to, provisions on conflicts of interest,
confidential   information,   use   of   position,   contracts   with
government agencies and financial disclosure.    All elected and
appointed officials and employees of state and local government,
of boards, commissions and agencies shall be subject to the code of
ethics.” Id. (emphasis added).
Although the language that was presented to the voters neither adds nor detracts from the
plain and unambiguous language of the ethics amendment itself, it at least reinforces the
understanding that the intent of the framers was to make the code of ethics applicable to all
elected and appointed officials, including members of the General Assembly.
The issue addressed by the justices in Ethics Commission concerned the power conferred
by the ethics amendment upon the ethics commission to enact ethics laws vis-à-vis the plenary
- 25 -




legislative power of the General Assembly.   In 1992, commission opponents averred that the
General  Assembly  was  not  divested  of  its  power  to  enact  substantive  ethics  laws,
notwithstanding  the  ethics  amendment,  because  the  electorate  reaffirmed  a  constitutional
provision continuing the plenary legislative powers of the General Assembly, formerly found in
article 6, section 10, of the Rhode Island Constitution.21 Ethics Commission, 612 A.2d at 13-14.
In answering this question, the justices concluded:
“In addition to reaffirming the plenary legislative power of
the  General  Assembly,  the                                                                            1986  electorate  overwhelmingly
approved the ethics amendment that was thereafter made part of
the constitution in article 3, sections 7 and 8.   We have ruled that
the  terms  of  article                                                                                 3,  section                        8,  expressly  confer  upon  the
commission the limited and concurrent power to enact substantive
ethics  laws.    Accordingly,  it  logically  follows  that  such  an
affirmative grant of power to the commission necessarily implies a
limitation of the same on the part of the General Assembly or any
other body.  This is not to say, however, that the General Assembly
is  prohibited  from  enacting  ethics  laws  altogether;  rather,  the
General Assembly is merely limited to enacting laws that are not
inconsistent with, or contradictory to, the code of ethics adopted by
the commission.” Id. at 14.
I believe an analogous conclusion is warranted in the case before us now.
In my opinion, it is clear from the analysis undertaken by the five justices of this
Court in Ethics Commission that the primary concern of the framers and the electorate in 1986
was the ethical conduct of our public officials.   As a result, the people of this state effected a
21 The plenary power clause of the state constitution provided: “The general assembly shall
continue  to  exercise  the  powers  it  has  heretofore  exercised,  unless  prohibited  by  this
Constitution.”  R.I.  Const.  art.                                                                      6,  sec.                           10  (repealed                      2004).  After  ratification  of  the   1986
constitution, we construed this provision “to constitute a reaffirmation of the powers historically
exercised by the Legislature under the prior constitution.” Kass v. Retirement Board of the
Employees’ Retirement System of Rhode Island, 567 A.2d 358, 361 (R.I. 1989). This provision
has since been repealed as one of the constitutional changes effected by the Separation of Powers
Amendments of 2004.   See R.I. Const. art. 3, sec. 6; art. 5; art. 6, sec. 10 (repealed); and art. 9,
sec. 5; see also In re Request for Advisory Opinion from the House of Representatives (Coastal
Resources Management Council), 961 A.2d 930, 933 (R.I. 2008).
- 26 -




dramatic change in the structure of government by mandating the creation of an independent,
nonpartisan ethics commission and by clothing it with the extraordinary power not only to
investigate allegations and impose penalties but also to “remove from office officials who are not
subject to impeachment.” R.I. Const. art. 3, sec. 8.   However, the people also reaffirmed the
speech in debate clause, a constitutional provision infused with a rich history signifying the
advance of representative government and the decline of absolute monarchism in our Anglo-
American tradition.
In Holmes, 475 A.2d at 982, this Court said, “[t]he purpose of the speech in debate clause
is to ensure the Legislature freedom in carrying out its duties.”   The Court also quoted from
Coffin v. Coffin, 4 Mass. 1, 27 (1808):
“These privileges are thus secured, not with the intention of
protecting the members against prosecutions for their own benefit,
but  to  support  the  rights  of  the  people,  by  enabling  their
representatives to execute the functions of their office, without fear
of prosecutions, civil or criminal.   I therefore think that the article
ought not to be construed strictly, but liberally, that the full design
of it may be answered.” Holmes, 475 A.2d at 982.
In 1986, the people of Rhode Island reaffirmed this principle.   Yet at the same time they
“overwhelmingly” adopted the ethics amendment that on its face applies to legislators.   I would
resolve this conundrum in a manner similar to that invoked by the five justices in Ethics
Commission when they considered the conflict between the ethics amendment and the plenary
powers clause and concluded that the ethics amendment impliedly limited the powers of the
General Assembly.   In light of the very specific intent of the framers to adopt a comprehensive
ethics amendment and in view of the history of the times and the state of affairs in 1986, it is my
opinion that the express application of the ethics amendment to “[a]ll elected * * * officials”
necessarily implies a limitation on the full reach of the speech in debate clause.  In other words, I
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would hold that in matters concerning the ethical conduct of legislators the ethics amendment
creates  a  narrow  exception  to  the  immunity  historically  adhering  to  leg

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Rhode Island Law