Again, to make this a reality, I'll need about $5k. 1 from the Pac, 2 from me, hope I can raise the other 2 or sell TotalNewport products at a discount.
4 December 2012
Mr. Chief Justice Suttell and Associate Justices of the Rhode Island Supreme Court
Rhode Island Supreme Court
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
Dear Mr. Chief Justice and Rhode Island Supreme Court Associate Justices,
My name is Robert T. Oliveira. I live at 5 Record Street in the city of Newport where I am a qualified elector. Today I am writing you concerning the Separation of Powers Clause, Article V, in the Rhode Island Constitution and its impact on the “powers” given to the Rhode Island Bridge and Turnpike Authority – an agency of the Executive Branch acting as a Legislative body.
A few years back, when the Article V was enacted, many of us lamented the lack of a “trigger provision” available to the average citizen in cases like this. When a citizen spots what appears to be a violation of the State Ethics law or State Election law, there is a process by which to file a complaint. When a citizen spots what they believe may be a violation of Separation of Powers, their only recourse is to obtain an attorney who has experience at the Supreme Court level. That experience also demands a fee requisite with that experience. Said fee is beyond the budget of around 90% of Rhode Islanders.
It should also be noted that the wheels of Justice grind fine, they also grind very slowly. The matter for discourse today has a timing element to it. If certain elements come into place before the Court rules, some folks will suffer severe financial hardship. It should be noted that I am one of them.
Lastly, as this begins, I understand because I am suggesting that Branch of Government has abdicated its authority in defiance of the Constitution, and another is violating the Constitution by usurping authority it does not have, there may be a question of standing. I would hope the Court would address that question if possible upon receipt of this letter. If the Court believes that I as an aggrieved citizen do not have standing but a member of an aggrieved Branch does, I would like to know that before I spend a great deal of capital and time asking a lawyer to file on my behalf. It should be noted that members of the General Assembly have been contacted and are ready to step forward should the Court decide that standing is an issue.
The first question the Court will be asked to decide is whether or not a “toll” or “usage fee” is a tax. According to Black’s law dictionary, a tax is a "pecuniary burden laid upon individuals or property owners to support the government [...] a payment exacted by legislative authority." It "is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority" and is "any contribution imposed by government [...] whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name." I am hoping the Court would accept this definition.
The next question becomes, can the Legislative Branch in Rhode Island, via Legislation, abdicate its authority to tax to another Branch. This question is specifically about the Rhode Island Bridge and Turnpike Authority’s ability to, without review or public input of a meaningful nature, establish tolls even though they are within the Executive Branch and not the Legislative. We can be sure of their placement because the Director of the Rhode Island Department of Transportation serves on this body. Article VI, Section 2, of our Constitution is clear with regards to how laws are to be made. Nowhere in our Constitution has the Bridge and Turnpike Authority (hereinafter, the “Authority”) been added to the Legislative Branch.
To make sure I had my ducks in a row, I called Mary Parella who serves as accountant for the Authority. I would never hold her to my paraphrasing of a phone call, but when asked what happens to the money collected for bridge tolls that comes out of an EZ-pass or his handed to an Authority employee, she indicated that the process was autonomous. How is that possible under the state Constitution?
According to Ms. Parella, the Authority sets their own budget, makes an estimate based on the number of axles that should roll through a toll booth and reset rates accordingly. If the Court wishes to suggest that the complaining Party is not aggrieved yet, I would humbly remind the Court the Newport Bridge toll was doubled without an opportunity to for the public to redress the members who did the doubling. This has caused increase costs for travelers and a hardship for businesses due to the number of travelers decreasing. More importantly, it just might be a violation of our Constitution.
Please allow me to present a hypothetical in order to further the point: a doctor invents a guaranteed cure for cancer. He presents his research to the state of Rhode Island and would be happy to sell the cure to us for a $1. We have the right to lobby our General Assembly members as to whether or not we would like them to spend said dollar. If they make a choice that we feel is inappropriate, we can address that at the next election.
Authority members do not stand for election since they are from the bureaucratic wing of the Executive Branch. Therefore, how does one lobby them? The cynic would say “money”. If we do not like their decision, our only point of contact as voters is the Governor. In Rhode Island, this person can be term limited (as a Madisonian, I find that most distressing) leaving no point of contact. Again, this “insulation” prevails because the Authority is an Executive Branch entity usurping a Legislative Branch power. It is not by accident that the Founders of the United States Constitution decreed that all fiscal matters should begin in the House since that is the body closest to the people.
Before Separation of Powers, Article V, perhaps this was just an anomaly. Now, it seems to be a prohibited abdication followed by a prohibited usurpation. The Legislative Branch has not been given the power of forgiving another Branch for violating the Constitution. For the benefit of all Rhode Islanders, the Judicial Branch should use its power review and reject this foolishness however the question should come before them.
Once it is determined that the Authority is Legislative in practice and impact, further questions need to be asked. I testified many times before the General Assembly regarding Article V. I remember the “sausage being made” in great detail. The absolute central focus was the removal of General Assembly members from Boards and Commissions. If a General Assembly member cannot cross serve, how can the Director of the Department of Transportation? How can the Governor have the authority to appoint to such a body?
This leads to all kinds of Open Meetings law and Ethics Commission questions. Not only has every Authority meeting violated the Open Meetings law since the enactment of Article V, every Director of Transportation has been in violation of the code of Ethics since the enactment of Article V. These matters are serious in scope and need to be addressed. More on how that should be done in a little bit.
There is one last question: if the Executive Branch can operate outside the Constitution with regards to the Turnpikes and Bridges, why not Education? The Executive Branch could ask the Legislative to establish the Rhode Island Education Authority. The Governor could appoint members. They could meet, set a student “usage fee” and the average citizen would be locked out of the process because once again, the Executive Branch had stolen abdicated power from the Legislative. This could literally go on ad infinitum until there was no real budget process. This is not what the Founders intended nor would it satisfy the original supporters of Article V.
It should be noted that I have no delusions of grandeur with regards to this letter. I am fully aware that much more than likely, I will have to raise somewhere around $5000 to even start the process of hiring a lawyer and finding a venue. That number only goes up if standing becomes an issue and the process needs to start a second time.
The raising of this capital, yes I have access to a Political Action Committee, has tax, gift, and Board of Election implications. However, when rights are being trampled, businesses are losing revenue, employees are fleeing, and irreparable harm is being done, I hope the Court understands if the envelope gets enlarged a tad. That is not the only non-pro-forma step that must be taken.
Normally, when a case is before the Court, all political activity is suspended. I would never want to appear as if I was trying to lobby or influence a Court decision via political mechanism. However, due to the possible irreparable harm that could occur if the Authority is allowed to continue “tolling at will without review”, these steps are unavoidable.
There will be complaints filed with the Ethics Commission and the Attorney General, specifically dealing with violations of the Open meetings law, with regards to Director Lewis. I have already dispatched two unpaid campaign interns, internally they are affectionately referred to as “research minions”, to discover if Mr. Lewis’ behavior when he ran the “Big Dig” is similar to his behavior here. The complaints from the public sure sound the same.
When they are done with that task, they will assemble all media related to the original Article V hearings. I get the feeling that in order to prevail, it may be necessary to keenly divine original intent with regards to Article V.
The General assembly will be asked, under its oversight power, to form a Special oversight Committee for the Authority. Many rumors abound to how much money actually gets spent, how contacts are awarded – including rumors of kickbacks, how much money makes its way to the General Fund and how is the Reserve Fund invested. Too many questions, too many implications, not enough answers all stemming from the core concept: Executive Authorities should not have Legislative powers.
Again, I am sorry to proceed in this manner but I am up against a foe with unlimited resources. For instance, Director Lewis could ask the General Assembly to create the “Help me pay for my lawsuit” Authority. A usage fee could be charged to every lawyer walking into any Courthouse in the state. At no time would redress be possible nor would it really be possible to discover how the money is being spent.
The solution is easy. The Authority makes a recommendation to the General Assembly. The General assembly goes along or it does not. There are hearings and oversight and Committees and the public is empowered.
I know you value our state Constitution as much as I do. This is not the time to be hesitant in defending it.
Thank you for your time and consideration.
Robert T. Oliveira
5 Record Street
Newport, RI 02840