We Have to Insist on Rules

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Rules of procedure are a sore spot for me.

For several years, now, I’ve been watching at the state and local levels (especially the local level) as laws and procedural rules have been distorted beyond recognition.  On Monday, in fact, I presented a case in a four hour hearing before the Tiverton Town Council, making up the rules as it went, concerning a process for Charter Complaints. The Town Clerk had simply invented a new process that hadn’t been done in the past and that wasn’t described in the Town Charter.

Typically the lawyers’ trick goes something like this: The law doesn’t say what the people in office want it to say.  It is therefore “ambiguous,” and they can do whatever they, themselves, feel is reasonable.

A more extreme example is when the lawyers simply pretend the rules are clear and in their favor.  That’s the case in the argument of the legislative lawyer whom Ted Nesi cites in his review of how House Speaker Gordon Fox “nullified” a committee vote that he didn’t like (ironically concerning the authority of the Ethics Commission over the legislature):

The essence of the lawyers’ explanation for why Tuesday’s vote wasn’t allowed is fairly simple: they say that once a committee votes to hold a bill for further study, the committee is barred from taking any further action on it – even later on during the same hearing – until after a notice is posted for a new hearing.

“Under the rules once they hold it for further study it has to be re-posted,” Susan Pegden, House Speaker Gordon Fox’s legal counsel, told WPRI.com. She cited Rules 12(e) and 12(f).

Rule 12(f) says a committee member may make a motion to reconsider the committee’s vote on a bill – but it also says it doesn’t apply to bills held for further study, an action that’s defined under Rule 12(e)(v).

“Because the first sentence [of Rule 12(f)] specifically excludes bills held for further study, bills held for further study under the second sentence cannot be the subject of a motion to reconsider,” Raspallo said. “The only way a bill that has been held for further study then gets new consideration – reconsideration – is if it’s re-posted.”

Most people’s eyes glaze over as soon as anything resembling legal language appears before them, but it’s important that we develop the ability to challenge these grammar-defying reinterpretations of clear rules.

First of all, rule 12(e) doesn’t appear to apply at all. Reading through the rules, we find that 12(e) specifically applies to cases in which “a written request from the principal House sponsor of a bill or resolution” necessitates a hearing within 30 days.  Subsection (v) defines “held for further study” as an acceptable response of the committee, satisfying the sponsor’s request.

No interpretation is necessary to read the rule this way. Rule 12(h) explains what it means: “House Rule 12(e) regarding the necessity to hold a hearing at the sponsor’s request through 12(h) pertaining to the timing of placing a bill onto the floor calendar shall not apply to any bill or resolution which shall have originated in the Senate.”  So 12(e) applies to “the necessity to hold a hearing at the sponsor’s request.”

However, it has become standard practice, at this point, for the legislature to gloss over this distinction, so we’ll assume that such requests are inherent in submitting bills.  (There’s a complication in why they don’t all receive hearings within 30 days, but we can only straighten so many suspicious wrinkles at a time.)

Even if there is such a request, rule 12(f) in no way takes bills held for further study magically off the table of the committee.  Here’s the rule in its entirety:

Committee Chairs shall bring reports of committee actions to the floor no later than two (2) weeks following the committee votes thereon, provided that this shall not apply to the Committee on Finance, nor shall it apply to bills being held for further study under subdivision (e)(v). A committee member may move reconsideration of any vote taken so long as the bill or resolution which was the subject of the vote remains in the possession of the committee and that the motion is made by a member voting in the majority. A motion to reconsider in committee shall not be debated.

Bills or resolutions concerning appropriations, revenue or expenditures shall not be 32 subject to the above time limits.

As I said above, the exception for “bills being held for further study” only applies to those that were initially requested to have a hearing by the sponsor.  But in any event, 12(f) sets a time limit.  Committee Chairs have two weeks to get their reports to the Clerk of the chamber.  If anything, this would mean that bills held for further study can remain in the committee’s possession for even longer.

Indeed, this is how the legislative leadership prevents bills from getting to the floor: the committee holds the bill to study it and then never brings it back for consideration.  For illustration, I’ll trace H7086, which is among the first bills disappearing into the “further study” abyss that comes up on a search for House Judiciary Chair Edith Ajello as a “prime sponsor” last year.

The bill was presented to the chamber on January 11, and it appears in the journal for that day.  At that point it was “referred to House Judiciary,” meaning that the House judiciary committee had possession of it, and all scheduling was technically in the hands of the chairwoman of that committee.  On February 8, Ajello (that chairwoman) scheduled the bill for “hearing and/or consideration,” and it appeared on the agenda for Wednesday, February 15.

The committee voted to hold it for further study on that day, and that’s it.  It never appears again in any document, much less in any journal of the House.  As a practical matter, we can infer that Speaker Fox never gave Ajello permission to bring it up again, but whatever her motivation, she never did.

In short, Rhode Island’s entire political game is rigged.  Every now and then, something slips through, like Rep. Patrick O’Neill’s motion to reconsider the ethics bill.  And when that happens, the lawyers wave their wands and waive the rules by pretending they say something innovative and out of keeping with both prior practice and basic grammar and definition.

But if this is how they want to play the game, if I were a legislator, I’d start demanding that all “held for further study” bills be placed immediately before the entire House. After all, the technical language is that the committee “recommends” that the bill be held.  The full chamber can disagree with that recommendation and vote to approve the bill.

If “further study” doesn’t keep the bill in committee, but rather sends the bill immediately to the whole chamber, then they actually have rights as, you know, elected representatives of the people of Rhode Island.



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