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Cranston Police Retirees Action Committee v. The City of Cranston

Supreme Court of Rhode Island

June 3, 2019

Cranston Police Retirees Action Committee
The City of Cranston, by and through its Finance Director Robert Strom and its City Treasurer David Capuano, et al.

          Kent County Superior Court (KC 13-1059) (formerly PC 13-3212) Sarah Taft-Carter, Associate Justice.

          For Plaintiff: Patrick J. Sullivan, Esq. Marisa A. Desautel, Esq.

          For Defendants: William M. Dolan, III, Esq. William K. Wray, Jr., Esq. Nicholas L. Nybo, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Paul A. Suttell, Chief Justice.

         This appeal concerns two 2013 Cranston city ordinances that promulgated a ten-year suspension of the cost-of-living-adjustment (COLA) benefit for retirees of the Cranston Police Department and Cranston Fire Department who were enrolled in the City of Cranston's pension plan. The plaintiff, Cranston Police Retirees Action Committee (CPRAC or plaintiff), initiated this litigation against the City of Cranston (the City), Mayor Allan Fung, and the members of the Cranston City Council (collectively, defendants), alleging a litany of claims ranging from constitutional violations to statutory infringements. A Superior Court justice, sitting without a jury in a trial held over six days in November 2015, found in favor of the defendants on all counts. The plaintiff now raises several issues for our consideration related to the trial justice's rulings on an assortment of motions and her findings of fact and conclusions of law. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.



         In 1937, the City established a pension fund for members of its police and fire departments. By the mid-1980s, the pension fund had become a significant financial concern. In the early 1990s, Mayor Michael Traficante met with police and firefighter union leaders in an attempt to address the problem. Ultimately, in 1996, the City passed two ordinances based on an agreement reached with the unions, creating a two-tiered pension system (the 1996 ordinances). The 1996 ordinances, No. 96-54 for firefighters and No. 96-56 for police officers, provided that all members of the police and fire departments hired after July 1, 1995, would be enrolled in the state's pension system. Additionally, those members with five or fewer years of service could elect to stay in the City's pension plan or enroll in the state's pension system. For the members remaining in the City's pension plan, the 1996 ordinances provided for a minimum 3 percent compounded COLA, or, alternatively, a percentage equal to that of a contractual increase for active members. The unions bargained for this COLA to match the benefits that were being offered under the state's pension plan.

         The fiscal issues related to the City's pension plan did not subside with the passage of the 1996 ordinances. By July 1, 1999, the unfunded accrued liability of the City's pension plan exceeded more than $169 million. The City's pension liability remained an issue throughout the early 2000s. Mayor John O'Leary, who succeeded Mayor Traficante, borrowed against the pension fund in his final year in office to pay the then-retirees' health care costs and base pensions.[1]

         When Mayor Fung took office in 2009, the City was in "dire" fiscal condition. At that time, Cranston faced a severe economic recession that was affecting all parts of the country. As such, the City experienced high unemployment rates and over $1 billion in decreased property values. Moreover, state aid decreased substantially between 2007 and 2011, and two devastating floods in the spring of 2010 also inflicted a financial toll on the City. In order to improve its financial situation, the City made cuts to personnel, eliminated city vehicles, and increased health care co-shares for its employees.

         In 2011, the General Assembly passed the Rhode Island Retirement Security Act (RIRSA), G.L. 1956 chapter 65 of title 45, legislation focused on promoting the sustainability of municipal pension systems. See § 45-65-2. Pursuant to § 45-65-4, a municipality's pension plan would be in "critical status" if "as determined by its actuary, as of the beginning of the plan year, a plan's funded percentage for such plan year is less than sixty percent (60%)." A municipality administering a plan in "critical status" is required, under RIRSA, (1) to give notice of such status to plan participants and other listed individuals and entities and (2) to submit a funding improvement plan detailing the municipality's strategy for emerging from that status. Section 45-65-6. A commission within the Department of Revenue that had been set up under the statute established guidelines for the funding improvement plans, suggesting that, "[g]enerally, the funding improvement period should not exceed 20 years with the plan emerging from critical status within that timeframe." Municipalities not in compliance with the statute faced a reduction in state aid. Section 45-65-7.

         Mayor Fung's administration analyzed the health of the City's pension system during his first term. By June 30, 2011, the unfunded accrued liability of the pension plans had risen to $256 million.[2] In 2012, the pension system was funded at only 16.9 percent, meeting the definition for "critical status" pursuant to § 45-65-4. In accordance with § 45-65-6, Mayor Fung sent a letter to all pensioners enrolled in the City's pension system informing them of the "critical status." The City next put together an "alternative funding improvement plan consistent with the [requirements of § 45-65-6]." In doing so, the City considered a number of options, including raising taxes, cutting more personnel, and eliminating city services. Additionally, in September 2012, Mayor Fung met with City pensioners to keep them apprised of the pension situation and also to propose a ten-year COLA suspension as the preferred method of raising the plan from critical status. Thereafter, Mayor Fung presented the COLA suspension plan to the City Council in two proposed ordinances in October 2012.

         Shortly after, Mayor Fung withdrew the proposed ordinances in favor of negotiations with the plan participants, and, in the months that followed, he met with the police and firefighter unions and persons who represented the City's police and firefighter retirees. After meeting with the unions and retirees, the City's actuaries ran twenty to thirty additional scenarios for plans to lift the pension system from critical status. Ultimately, however, the City enacted two ordinances on April 23, 2013 (the 2013 ordinances)-No. 2013-5, governing police retirees, and No. 2013-6, governing fire retirees-suspending the minimum 3 percent COLA for ten years, beginning July 1, 2013.

         Following the passage of the 2013 ordinances, The Cranston Police Department Retirees Association, Inc., and Local 1363 Retirees Association filed suit against the City on behalf of retirees enrolled in the City's pension plan, alleging that the 2013 ordinances violated the United States and Rhode Island Constitutions. The parties reached a settlement agreement, and a final consent judgment was entered in December 2013. The agreement provided for a COLA suspension in alternating years for ten years, and a 1.5 percent COLA payment in years eleven and twelve. Each retiree was given the opportunity to opt out of the settlement agreement and to retain the right to pursue civil claims against the City. The members of CPRAC are retirees enrolled in the City's pension system who opted out of the settlement agreement.


         Procedural History


         Pretrial Motions

         On June 28, 2013, plaintiff filed an eight-count complaint in Superior Court against the City, Mayor Fung, and the members of the Cranston City Council.[3] The complaint included allegations of violations of the United States and Rhode Island Constitutions, a state statute, and breach of contract.[4] The defendants filed a motion to dismiss six of the eight counts, as well as an answer to the complaint. The trial justice granted defendants' motion to dismiss in part, dismissing counts VI and VIII of the complaint. During the course of discovery, defendants filed a motion for a protective order to prevent plaintiff from deposing city councilmember John Lanni, Jr. On September 15, 2015, the trial justice granted defendants' motion on the basis that Lanni enjoyed the privilege of legislative immunity, and that the topics about which plaintiff sought to question Lanni were related to his position as a legislator.

         In the month prior to trial, the parties filed several motions for summary judgment. On October 9, 2015, the Non-City defendants filed a motion for summary judgment on all remaining counts. One week later, the City filed a motion for summary judgment as to plaintiff's Takings Clause claim. The plaintiff filed its own motion for summary judgment on October 19, 2015, seeking summary judgment on its claims based on res judicata and on the violation of the Rhode Island Open Meetings Act, G.L. 1956 chapter 46 of title 42 (the OMA). The City also filed a cross-motion for summary judgment as to the res judicata and OMA counts.

         The trial justice heard arguments on all four summary judgment motions at a hearing held on November 2, 2015. On that same day, the trial justice issued a decision from the bench, granting summary judgment in favor of the Non-City defendants on all counts, and in favor of the City as to res judicata and the Takings Clause claim. The trial justice reserved judgment on the OMA claim until November 6, 2015, when she rendered a bench decision granting summary judgment in favor of the City.

         The City had also filed a motion in limine to determine the appropriate burden of proof for the Contract Clause claim. The trial justice heard arguments on this motion at the November 2, 2015 hearing, and rendered a bench decision on November 6, 2015. The trial justice relayed that she would employ a burden-shifting analysis on part of the Contract Clause analysis, with specific burdens of production on each party at each stage of the analysis.

         Three days before trial, the City sought leave to amend its answer to the complaint to specifically deny some of plaintiff's allegations and to formally add an affirmative defense. The City contended that these amendments would simply ensure that its pleading conformed to the positions that it had taken throughout the litigation and to evidence the City intended to introduce during the upcoming trial. The trial justice granted the City's motion to amend on the morning the trial began, over plaintiff's objection.



         On November 9, 2015, the first day of trial, three counts of plaintiff's complaint remained: violation of the Contract Clause, breach of contract, and injunctive relief. Sixteen witnesses testified over the course of five days. Their testimony is summarized below.

         The plaintiff presented testimony from nine members of CPRAC, two former Cranston mayors, and an actuary, who provided expert testimony. The City presented testimony from the current mayor, the City's finance director, an actuary, and a current Cranston firefighter.

         Glenn Gilkenson, president of CPRAC, testified first. Gilkenson retired from the Cranston Police Department in 2008 after twenty-five years of service. Gilkenson testified that, according to the collective bargaining agreement under which he retired, he received a pension and COLA adjustments. According to Gilkenson, after the 2013 ordinances passed, he spoke to a few retired police officers and firefighters who were in the same situation, and they decided to form a nonprofit organization, CPRAC, to fight the suspension of their COLA benefits. Gilkenson testified that CPRAC started with seventy-five members, and, at the time of trial, had seventy-one members. Gilkenson testified that it was CPRAC's policy and strategy to not negotiate with the City with respect to a reduction of the COLA, and he also stated that the COLA freeze had impacted his personal finances.

         Following Gilkenson's testimony, plaintiff presented eight other members of CPRAC as witnesses over the course of the first two days of trial: retired firefighter Vincent Matrumalo and retired police officers Edward Walsh, William Lynch, David Greene, Robert Davies, Charles Galligan, Edward Evans, and Vincent Maccarone. Similar to Gilkenson's testimony, these CPRAC members consistently testified that they had believed they would receive COLA benefits for life, and that the suspension of the COLA benefit had a significant financial impact on their lives. Each of the CPRAC members' collective bargaining agreements (CBAs) were admitted as trial exhibits. Each CBA, beginning in 1997, provided for COLAs to the pension benefits at a rate of at least 3 percent, compounded on July 1 of each year.

         The plaintiff then called Michael Traficante, mayor of Cranston from 1985-1999, to the stand. Mayor Traficante testified that he became aware of the City's pension crisis as early as 1984, when he served as city council president. He further testified about negotiations with the police and firefighter unions in the mid-1990s to address the pension crisis. According to Mayor Traficante, the City explored many alternatives to address the pension liability aside from moving the pensioners into the state system, including a pension bond or supplemental tax, but ultimately decided that moving the pensioners into the state system was the best course of action. The plaintiff also called Mayor Traficante's successor, John O'Leary, to testify. Mayor O'Leary served as mayor from 1999 until 2003. Mayor O'Leary testified that, in his final year as mayor, he borrowed money from the fire and police pension fund as a one-time allocation to pay for retirees' health care costs, and that the debt was repaid the following year.

         The City's current mayor, Allan Fung, took the stand next, having been called by defendants. Mayor Fung testified that, just after he took office in 2009, he examined the City's fiscal condition and discovered that it was "very dire." According to Mayor Fung, the economic recession of the late 2000s had taken a toll on the City, as it had on other cities across the country, and made it difficult for the City to raise revenue. Additionally, Mayor Fung testified, the City experienced two devastating floods in 2010, and state aid decreased dramatically in the first few years of his administration-by $18 million between 2007 and 2011. Mayor Fung testified that he felt that if the City did not address the financial crisis, Chapter 9 bankruptcy "could be a very real possibility[.]"

         Mayor Fung further testified about the critical status of the City's pension system as of 2011, stating that, at its lowest point, the system was funded at only 16.9 percent, with $256 million of unfunded accrued liability. He testified that a combination of factors led to this situation, including the compounded COLAs for municipal retirees and historic underfunding of the entire municipal pension system. Mayor Fung testified that his administration considered many alternatives to determine the best solution for emerging from "critical status" within the twenty-year guideline. In addition to a ten-year suspension of the COLA, Mayor Fung testified, the City implemented wage freezes, layoffs of City employees, tax increases, health care co-share increases, and expense reduction, in order to raise revenue during its financial crisis.

         Robert Strom, finance director for the City, testified next for defendants. Strom reiterated Mayor Fung's statements that the City had suffered a financial crisis during the first few years of the Fung administration. Strom further testified that he believed that the City would face serious consequences if the twenty-year guideline for emerging from "critical status" was not met, including reduced or eliminated state funds, which were instrumental to the City's budget. Strom also testified that raising taxes on the City's residents would not resolve the pension system's problems because the City would need to raise taxes so substantially that it would have been unfair and unsustainable, considering the fact that the City already had one of the highest tax rates in the state.

         The plaintiffs called their retained expert, William Fornia, to the stand on the penultimate day of trial.[5] Fornia testified that he is an actuary by profession and had been a pension consultant for several large consulting firms for many years prior to starting his own company. Fornia testified that, based on his expert analysis of the actuarial reports commissioned by the City, the COLA suspension caused an average loss of $210, 000 per retiree. Fornia further testified that the City's pension problems were foreseeable and predictable, and that the City had not chosen the least drastic remedy available when it chose to suspend the COLAs.

         After the plaintiff rested, the City called two more witnesses to conclude the testimony at trial: expert witness Daniel Sherman, an actuary, and Paul Valletta, Jr., a current Cranston firefighter and president of the firefighters' union. Sherman rebutted some of plaintiff's expert's conclusions, particularly with respect to the pension system's shortfall calculation and the COLA change alternatives. Valletta testified about the negotiations between Mayor Fung and the unions and retirees prior to the passage of the ordinances. The trial ended on November 17, 2015.

         On July 22, 2016, the trial justice issued a written decision resolving, in favor of the City, the claims for violation of the Contract Clauses of the United States and Rhode Island Constitutions, breach of contract, and injunctive relief. The details of her decision that are salient to the issues plaintiff raises on appeal will be discussed infra. Final judgment in favor of all defendants was entered on August 4, 2016.


         Posttrial Motions

         Following entry of final judgment, the City filed a motion for costs. The plaintiff objected and filed a motion to stay consideration of the bill of costs until plaintiff's appeal was decided by this Court. The trial justice heard argument on the motions on October 13, 2016, when she summarily denied plaintiff's motion to stay and awarded costs to the City in the amount of $9, 717.85.


         Issues on Appeal

         Before this Court, plaintiff challenges several pretrial decisions, some of the trial justice's findings and conclusions after trial, and the posttrial award of costs in favor of the City.[6]Specifically, plaintiff argues that the trial justice erred by: (1) finding that the 2013 ordinances did not violate the Contract Clauses of the United States and Rhode Island Constitutions; (2) misapplying the burden of proof in the Contract Clause analysis; (3) misconceiving and misapplying expert testimony; (4) granting summary judgment in favor of the City as to the Takings Clause, res judicata, and OMA claims; (5) granting defendants' motion for a protective order as to Councilmember Lanni; (6) granting summary judgment in favor of the Non-City defendants on all counts; (7) granting the City's motion to amend its answer shortly before trial; and (8) summarily dismissing plaintiff's motion to stay and granting, in part, the City's motion for costs. We will take each issue in turn.


         Contract Clause

         The trial justice concluded that the 2013 ordinances suspending plaintiff's members' COLAs did not violate the Contract Clauses of the United States or Rhode Island Constitutions. Before this Court, plaintiff claims two errors as to the trial justice's Contract Clause analysis. First, plaintiff argues that the trial justice erred in the determination and application of the burden of proof at trial. Second, plaintiff argues that the trial justice erred in ultimately finding in favor of the City on this issue.

         This Court has held that we "will apply a de novo standard of review to questions of law that may implicate a constitutional right." Goetz v. LUVRAJ, LLC, 986 A.2d 1012, 1016 (R.I. 2010). However, we will not disturb the factual findings made by a trial justice sitting without a jury "unless such findings are clearly erroneous or unless the trial justice misconceived or overlooked material evidence." Gregoire v. Baird Properties, LLC, 138 A.3d 182, 191 (R.I. 2016) (deletion omitted) (quoting South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 210 (R.I. 2015)). "When the record indicates that competent evidence supports the trial justice's findings, we shall not substitute our view of the evidence for his or hers even though a contrary conclusion could have been reached." Id. (brackets omitted) (quoting South County Post & Beam, Inc., 116 A.3d at 210).

         The Contract Clauses of the United States and the Rhode Island Constitutions prevent the state from enacting laws "impairing the obligation of contracts[.]" U.S. Const. Art. I, § 10, cl. 1; R.I. Const. art. 1, § 12. "Although the Contract Clause appears literally to proscribe 'any' impairment, * * * 'the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula.'" United States Trust Company of New York v. New Jersey, 431 U.S. 1, 21 (1977) (quoting Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 428 (1934)). Moreover, "[t]hough the Framers apparently had in mind only purely private contracts (particularly debt obligations) the Clause routinely has been applied to contracts between states and private parties." Nonnenmacher v. City of Warwick, 722 A.2d 1199, 1202 (R.I. 1999) (deletion omitted) (quoting McGrath v. Rhode Island Retirement Board, Etc., 88 F.3d 12, 16 (1st Cir. 1996)). The Contract Clause "has been interpreted to apply to municipalities as well." Id.

         We have previously adopted the United States Supreme Court's three-part analysis for Contract Clause issues. Nonnenmacher, 722 A.2d at 1202 (citing General Motors Corporation v. Romein, 503 U.S. 181, 186 (1992)). "A court first must determine whether a contract exists." Id. (citing McGrath, 88 F.3d at 16). Second, "[i]f a contract exists, the court then must determine whether the modification results in an impairment of that contract and, if so, whether this impairment can be characterized as substantial." Id. (citing Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411-12 (1983)). "Finally, if it is determined that the impairment is substantial, the court then must inquire whether the impairment, nonetheless, is reasonable and necessary to fulfill an important public purpose." Id. (citing Energy Reserves Group, Inc., 459 U.S. at 412).


         Burden of Production

         Before addressing the merits of plaintiff's Contract Clause argument, we turn to whether the trial justice erred in her conclusions about the burden of production at each stage of the analysis. When the trial justice ruled on the City's motion in limine regarding the burden of proof for plaintiff's Contract Clause claim, she set out the following rubric: (1) "[p]laintiff bears the burden of production in establishing [whether the state law has substantially impaired a contract] beyond a reasonable doubt"; (2) if plaintiff meets that burden, "the burden of production shifts to the defendant to prove" that the 2013 ordinances were reasonable and necessary to fulfill a significant and legitimate public purpose; and (3) "[t]hereafter, a plaintiff may, of course, rebut with evidence that the legislation was not reasonable and necessary * * * beyond a reasonable doubt." The trial justice further stated that the City's burden with respect to demonstrating a reasonable and necessary legitimate public purpose would be satisfied by credible evidence. The trial justice also stated that she would use a "less deference" standard in evaluating the City's argument whether the legislation was reasonable or necessary.

         On appeal, plaintiff asserts that, despite her articulated rubric, the trial justice gave "nearly complete deference" to the City regarding the degree and necessity of the contractual impairment. The plaintiff argues that the City should have been required to demonstrate, at the very least, a preponderance of the evidence, rather than "credible evidence," regarding its justification for the impairment; and plaintiff contends that the correct standard in this case should actually be clear and convincing evidence. For its part, the City argues that the trial justice should not have shifted the burden of production at all, but that she ultimately reached the correct conclusion. We review the trial justice's determination and application of the burden-shifting analysis de novo. See Panarello v. State Department of Corrections, 88 A.3d 350, 366 (R.I. 2014). We note that "it would be reversible error for a trial justice to apply the wrong burden of proof." Id.

         "[T]he term 'burden of proof' embraces two different concepts"-the burden of production and the burden of persuasion. Murphy v. O'Neill, 454 A.2d 248, 250 (R.I. 1983). "The 'burden of persuasion' refers to the litigants' burden of establishing the truth of a given proposition in a case by such quantum of evidence as the law may require[, ]" and it "never shifts." Id. (punctuation omitted). The burden of production, also referred to as the "burden of going forward with the evidence," DeBlois v. Clark, 764 A.2d 727, 732 n.3 (R.I. 2001), "shifts from party to party as the case progresses." Murphy, 454 A.2d at 250.

         We must first resolve whether the trial justice properly determined that a burden-shifting analysis applies in this case. Courts have not been uniform in shifting the burden of production to the state in the Contract Clause context following a finding of substantial impairment. For example, in Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998), the Sixth Circuit required that a "state must proffer a 'significant and legitimate' public purpose for the regulation warranting the extent of the impairment caused by the measure." Pizza, 154 F.3d at 323 (quoting Energy Reserves Group Inc., 459 U.S. at 411) (emphasis added). However, in United Automobile, Aerospace, Agricultural Implement Workers of America International Union v. Fortuño, 633 F.3d 37 (1st Cir. 2011), the First Circuit held that "the plaintiffs bear the burden on the reasonable/necessary prong of the Contract Clause analysis[, ]" and that "neither [the First Circuit] nor the Supreme Court has ever held" that the state must prove reasonableness and necessity of the regulation. Fortuño, 633 F.3d at 42, 44 (emphasis added). The First Circuit has also acknowledged, however, that "many courts have concluded that this burden rests with the state, and others, including this court and the Supreme Court, have used language that arguably supports such a conclusion." Id. at 43 (footnotes omitted). Indeed, in Energy Reserves Group, Inc., the United States Supreme Court held that, "[i]f the state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation[.]" Energy Reserves Group, Inc., 459 U.S. at 411 (emphasis added); see also United States Trust Company of New York, 431 U.S. at 31 ("In the instant case the State has failed to demonstrate that repeal of the 1962 covenant was similarly necessary.") (emphasis added).

         This Court has not yet expressly adopted a burden-shifting analysis regarding the Contract Clause, but we have alluded to it: "if the law constitutes a substantial impairment, can the state show a legitimate public purpose behind the regulation * * *?" Rhode Island Depositors Economic Protection Corporation v. Brown, 659 A.2d 95, 106 (R.I. 1995) (citing Energy Reserves Group, Inc., 459 U.S. at 411-12) (emphasis added). In that case we held, however, that no contractual right was implicated, and therefore we did not reach this factor of the Contract Clause analysis. Id. Given the language of the standard set out in the United States Supreme Court cases and the general logic that the City would have access to the information and motivation to demonstrate its justification for the contractual impairment, we find no fault in the trial justice's conclusion that the City bore the burden of production as to the reasonable-and-necessary element of the analysis.

         We proceed now to plaintiff's argument that the trial justice erred in requiring the City to proffer only credible evidence of its justifications, and that she erred in her application of the burden of proof because she gave the City "nearly complete deference," which effectively failed to shift the burden of production to the City at all. We have previously held that "a duly enacted ordinance carries with it a presumption of constitutionality which will disappear only on a contrary showing beyond a reasonable doubt." Town of Glocester v. Olivo's Mobile Home Court, Inc., 111 R.I. 120, 124, 300 A.2d 465, 468 (1973). "[H]owever, complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake." United States Trust Company of New York, 431 U.S. at 25-26. Thus, as the trial justice in the present case noted, a "less deference" standard was appropriate to analyze the City's proffered evidence for the reasonableness and necessity of the 2013 ordinances. See Baltimore Teachers Union, American Federation of Teachers Local 340, AFL-CIO v. Mayor and City Council of Baltimore, 6 F.3d 1012, 1019 (4th Cir. 1993) ("While complete deference is inappropriate, however, at least some deference to legislative policy decisions to modify these contracts in the public interest must be accorded.").

         The specific quantum of proof the City must meet has not been clearly set forth either by this Court or the United States Supreme Court. However, the Supreme Court has said that, if substantial impairment is found, "the State, in justification, must have a significant and legitimate public purpose behind the regulation," and that the government actor is afforded a limited amount of deference as to that showing. Energy Reserves Group, Inc., 459 U.S. at 412. Thus, we find no error in the trial justice's determination of the burden of proof in this case.

         With respect to her application of the burden of proof, a review of the record and the trial justice's decision demonstrates that the trial justice did not fail to shift the burden of production to the City. It is clear that the trial justice required the City to put forth evidence demonstrating a significant and legitimate public purpose for the 2013 ordinances, and that the 2013 ordinances were reasonable and necessary. Moreover, we disagree with plaintiff that the trial justice afforded the City complete deference. In fact, the trial justice set forth a credible evidence standard to be sure that the City was not afforded complete deference as to its justifications.[7] The trial justice, as required of a factfinder at trial, weighed the evidence and made credibility determinations. The fact that she gave ...

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