August 24, 2010

Keven McKenna, on the Constitutionality of the Central Falls Receivership

Carroll Andrew Morse

Keven McKenna, independent candidate for Attorney General and one of the speakers at Saturday's Tenth Amendment rally, was the President of the 1985-1986 Rhode Island Constitutional Convention. Aware of that item on his resume, I asked him if he thought that the application of the new "fiscal stabilization law" to Central Falls was constitutional...

"No, and I'll tell you why. It's not [Article XIII, the home rule provision]. You've got to move back a bit, to the second Article on the right to vote. They're taking their right to vote away. If a person is elected, you can abolish the office, after their term is over, but during the term, you can't touch it..." Audio: 1m 9 sec

"The real underlying policy problem obviously in Central Falls it that it's one mile square of poor people with no factories. That's why it doesn't work as a town..." Audio: 38 sec
In the spirit of Saturday's event, Mr. McKenna also expounded upon some of his beliefs about the principles of democratic governance in general...
"...people forget that democracy is only two documents. It's one word, but two documents, that state constitution and the US Constitution. That's where it is. If it's not there, you don't have it. Those documents say a very important thing...that we're a bottom-up democracy..." Audio: 2m 2 sec

"When I was active in the sixties, power-to-the people was sort of a left-wing notion, but everyone should believe in power-to-the people. It's not left, right or upside-down. It is a process that everybody, that every single person, should make sure they protect..." Audio: 22 sec
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"That's why it doesn't work as a town"

Exactly. It should be absorbed into the surrounding towns. Granted, no one wants to take on any extra debt right now, but just split it up for Lincoln, Cumberland and Pawtucket, give each of those towns the aid that CF would have gotten for a few years, and let them figure it out. Now a state of 38 municipaliities.

Posted by: Patrick at August 24, 2010 9:38 AM

This issue has already been before the RI Supreme Court in the case of West Warwick, which suffered a fiscal crisis in the early 1990s. Marran v. Baird, 635 A.2d 1174 (1994). In the West Warwick case, the General Assembly created a commission (rather than a receivership) to address the fiscal crisis.

In Marran the Supreme Court upheld the predecessor version of the same law that is being applied in CF (R.I. Gen. L. sec. 45-9-1).

Most of the same arguments were made then, and rejected. The crux of the issue is that the fiscal collapse of any one town has disastrous impact on the entire state, so a law whose purpose is the repair of that one town's finances is, in reality, a law of "general application" that survives scrutiny under Art. 13.

Posted by: brassband at August 24, 2010 6:48 PM


I'm planning to do a post on the subject, but 1) I think the new "fiscal stabilization" law goes way beyond the old "budget commission" law, or at least beyond the aspects that were relevant in Marran v. Baird, and 2) in my humble opinion, Marran v. Baird is as poorly reasoned a legal opinion as I've read in my time analyzing issues in the blogosphere.

Before I go into more detail, do you have any strong feelings with regard to the second point above?

Posted by: Andrew at August 24, 2010 9:36 PM

Andrew --

Look . . . Marbury vs. Madison it ain't (of course, there are myriad flaws with Marbury v. Madison, too).

Cases such as Marran are sometimes not the best examples of judicial craftsmanship.

First, it was an "emergency" ruling; the Court was presented with a certified question under close time constraints due to the fiscal crisis. They initially answered the question in a one-sentence order and then prepared an opinion later to explain their decision.

Second, it involves issues that do not lend themselves to legal/judicial solution. The executive and judicial branches confront a fiscal crisis, and they have made an effort to resolve the crisis through the political process. Judges are very reluctant to thwart such solutions absent a grave threat to individual rights.

Don't forget that in CF, the mayor and council agreed on the need for a receivership, so there is an added layer of political actors who are in agreement.

It's very unlikely that a court would override the political branches under these circumstances, particularly where the court itself is without any way of remedying the situation.

Posted by: brassband at August 25, 2010 6:53 PM
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