After so many years in the State House together, you could imagine U.S. Commerce Secretary Gina Raimondo and former House Speaker Nicholas Mattiello might have a lot to catch up on should they, say, bump into each other in the hallway outside a deposition room.
However, they’re probably much happier now that such a meeting is unlikely to happen after a federal appeals court ruled that the ex-governor and speaker cannot be subpoenaed to testify in the ongoing lawsuit against Rhode Island’s truck toll system.
That’s right: truck tolls. More than three years after it began, the trucking industry’s legal challenge to the system of electronic eyes charging big rigs on the highway is still rumbling through the courts with plenty of legal miles still to travel.
On the local question of whether Rhode Island can keep tolling, last Tuesday’s order by the First Circuit Court of Appeals is only a pit stop on the way to the final destination.
But for state officials inside and outside the Ocean State, the ruling could give them important future protection against future legal challenges, at least according to the judge who wrote the opinion.
For the last year, lawyers for the truckers have been trying to depose Raimondo and Mattiello — along with former Rep. Stephen Ucci — over the thinking behind how the state’s truck tolls were designed.
The state argued that the lawmakers and Raimondo are covered by legislative privilege, which protects elected officials from having to defend their official policy decisions from legal attacks.
Last fall, U.S. District Court Judge William E. Smith ruled for the truckers, deciding that, in a case about whether truck tolls are a discriminatory barrier to interstate commerce, hearing the architects of the system explain why they created it outweighed the imposition on them.
The state challenged the decision and a year later the First Circuit stepped in, ordering the lower court to quash the subpoenas.
In last week’s appeals court decision, Judge William Kayatta Jr. wrote that the subpoena dispute raised significant unsettled legal questions about legislative privilege handled in different ways by various lower courts that would likely come up again if not dealt with.
“We have little doubt that it will become increasingly common to subpoena state lawmakers in connection with such claims if we do not review the district court’s order at this juncture,” Kayatta wrote.
And on the underlying question, the appeals court sided with the state, saying that if the truckers’ bid to override legislative privilege were to succeed, state officials could be subpoenaed whenever any matter of federal law is identified in a policy dispute.
“Were we to find the mere assertion of a federal claim sufficient, even one that addresses a central concern of the Framers [of the U.S. Constitution], the privilege would be pretty much unavailable largely whenever it is needed,” Kayatta wrote.
While the decision is advantageous for state officials in Rhode Island and elsewhere, it’s a blow to the trucking industry case.
The lower court previously denied the truckers’ motion for a preliminary injunction (which would have halted collections) finding that news accounts of Raimondo and Mattiello’s rationale for passing truck tolls was, at least in a legal context, “largely selective and presented without context.”
That’s why lawyers for the truckers subpoenaed the former governor and speaker, to gather evidence that the toll system had been designed in a way that would advantage local trucking companies at the expense of out-of-state ones.
The appeals court quashed not only the truckers’ chance to depose the state officials, but their request for their documents and communications in the run-up to truck tolls.
The plaintiffs may be able to get at some of that information through the one set of subpoenas the appeals court left intact, which went to the state’s truck toll consultant CDM Smith. Legislative privilege does not extend to the state’s private contractors, the court ruled.
The court didn’t rule out the possibility that some future private civil lawsuit somewhere could produce a compelling need for elected officials to testify that would outweigh legislative immunity.
“This is not such a case, however, because proof of the subjective intent of state lawmakers is unlikely to be significant enough in this case to warrant setting aside the privilege,” he wrote.
“We certainly agree that interrogating the State Officials could shed light on and provide context concerning their subjective motivations and public comments,” Kayatta wrote. “But it is difficult to conceive of a case in which a toll that does not discriminate in effect could be struck down based on discriminatory purpose. It is also equally difficult to conceive of a toll that has a substantial discriminatory effect, yet is saved by the mere absence of proof that the effect was intended.”
“We’re disappointed by Tuesday’s decision on the subpoenas that we issued to key architects of the RhodeWorks toll program, and are currently evaluating next steps,” Rich Pianka, deputy general counsel for the American Trucking Associations, wrote. “But we remain confident in the merits of our challenge, and look forward to establishing that Rhode Island’s discriminatory truck-only toll scheme violates the Commerce Clause.”
The 11 truck tolls operating on Rhode Island highways generated $34 million for the state in the fiscal year that ended June 30. The state has budgeted $42 million in tolls for this year.
Brown’s entry changes the dynamic
And then there were five.
Five Rhode Island Democrats have said they will run for governor next year now that former Secretary of State Matt Brown has made his expected plunge into the race.
But of all the establishment Democrats on Smith Hill, the incumbent Brown wants to succeed, Gov. Dan McKee, might be the least bothered by his arrival on the stage.
The first-blush reaction of 2022-watchers is that Brown’s left-flank attack is likely to play best in well-educated parts of the state that have trended progressive in recent elections and might otherwise favor General Treasurer Seth Magaziner.
“McKee is the candidate most likely to benefit from Brown’s entry into the race,” Rich Luchette, former aide to U.S. Rep. David Cicilline and now principal at Precision Strategies, wrote in an email.
“Since taking over, McKee has tried to position himself as a Governor who’s acceptable both to moderate Democrats and independents in the state. In order to beat him in a primary, you’d have to unite Rhode Island progressives behind a single alternative since there’s no run-off if everyone is below 50%. Brown tried to do that in 2018, but he wasn’t ever able to get progressives to coalesce around his campaign.”
Joseph Cammarano, political science professor at Providence College, said Brown could draw from both Magaziner and Secretary of State Nellie Gorbea.
“The coalition Brown is leading includes many young progressive officeholders and candidates, and the policy positions are on the left of the Democratic Party spectrum, further away from the relatively more centrist McKee,” Cammarano wrote.
He said Brown’s campaign might have more of an impact driving the General Assembly left and building progressive infrastructure than winning the governor’s office.
National Education Association Rhode Island Executive Director Bob Walsh said Brown and Magaziner are likely to split each other’s vote on the East Side of Providence, where they both live, and could struggle in McKee’s base in the Blackstone Valley and western suburbs.
But he said Gorbea — the only woman in the field — could also benefit from having another man enter the race, especially if Magaziner, McKee and Luis Daniel Muñoz start attacking each other. Last week Gorbea announced an all-female campaign team.
The dynamics of the field could be upended again if another woman, CVS executive Helena Foulkes, gets in the race.
Brown’s arrival came as McKee had been slogging through a series of poor news cycles and attacks from Magaziner, who announced just a week earlier.
None of the candidates are likely to benefit from going too negative this early in the race, most observers agree, including Brown, whose claims of widespread but unspecified corruption set off a intra-party firestorm.
And in East Providence …
Mendes’ run for lieutenant governor means the Senate seat she won less than a year ago will be open again next year.
Fellow Political Co-operative member Gregory Greco is running to replace her in East Providence’s District 18, but he will likely have company.
Another name to watch is East Providence City Council President Robert Britto.
Reached by phone Friday, Britto would neither confirm nor deny if he intends to run, but said he will make an announcement soon.
On Twitter: @PatrickAnderso_
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