The Governor Can Place Non-Binding Questions on the Ballot, Says the RI Superior Court

In a ruling of unexpected scope, Rhode Island Superior Court Judge Stephen A. Fortunato has ruled that the Governor of Rhode Island has an inherent power to place non-binding questions on the Rhode Island ballot. Today's ruling undoes most, if not all, of the effect of a bill intended to limit the Governor's power passed last month by the General Assembly. The Associated Press (via the Boston Globe) describes Judge Fortunato's decision....

Until recently, a state statute authorized the governor to place nonbinding questions on statewide ballots. In May, Carcieri, a Republican, requested that the Secretary of State place two questions on November's ballot...

The Democrat-dominated General Assembly on June 13 stripped the Republican governor of his power to place questions on the ballot, but only after Carcieri had moved to put the two questions to voters....

Fortunato ruled that repealing the state statute does not eliminate the governor's power to put questions on the ballot. He said nothing in the state constitution forbids the practice. He noted that courts in other states have interpreted their constitutions broadly to maximize the electorate's power.

Since the results aren't binding, the referendums don't intrude on legislative power, Fortunato said.

"It's another device for encouraging participatory democracy," he said.

The initial report from WJAR-TV discusses some content limits on non-binding ballot questions that are discussed in Judge Fortunato's ruling...

[Judge Fortunato] left open the possibility that governors can only ask referendum questions related to their duties, which are usually implementing and enforcing state laws....

Fortunato said his ruling doesn't address whether the governor or General But Fortunato's ruling suggested that courts could set limits. Referendum questions shouldn't be personal popularity polls conducted at taxpayer expense, he said.

Fortunato said his ruling doesn't address whether the governor or General Assembly can ask questions unrelated to their government functions.

The WJAR report clearly implies that Judge Fortunato's ruling establishes that the General Assembly, as well as the Governor, has the power to place non-binding questions on the statewide ballot, even in the absence of an authorizing statute.

The unexpected decision raises a number of questions. Here are two...

1. Even if you limited the Governor's power to ask non-binding questions to matters related to his official duties, wouldn't he or she still be able to ask just about anything by phrasing it in the form of "should the Governor of introduce legislation to the General Assembly that would yadda yadda?" or "Should the Governor sign leglislation which, if passed, would yadda yadda yadda?"
2. Though I like the result of the today's decision, I am a bit wary of the reasoning. Is it consistent with the philosophy of limited government to say that state officials have the authority to do something simply because it isn't prohibited by the state constitution?

According to all media reports, lawyers for the legislature will appeal Judge Fortunato's decision to the state Supreme Court.