Pinga/Alves: Rhode Island Supreme Court's Fatal - yet Inadvertant? - Inaction

In view of the stunning effect - the voiding of an election - of their non-action yesterday in the matter of Stephen Alves' request for a new election, I wonder if the RI Supreme Court was simply unaware in pragmatic terms of the effect of their decision in the context of dates and ballot printing deadlines.

The cutoff date for printing ballots seems to be October 20. Accordingly, whatever happens at that hearing before the Supreme Court on October 23 matters not. However they eventually decide - even if they uphold the three ballot counts and the ruling by the BOE - another primary election will have to be held. (It should be noted, though it is a secondary consideration at this point, that another general election will also have to be held.)

The Supreme Court, then, would be giving the losing candidate a do-over. With no factual reason to do so, they would be stepping into a duly held election with a winner recognized by the duly appointed authority and ordering that a second election take place.

"No factual reason". Let's review that. The smallest margin by which Michael Pinga won any of the ballot counts was seventeen. The West Warwick Board of Canvassers has stated that possibly up to ten Republicans may have voted in this Democrat primary. Further, there are apparently three ballots for which signature cards cannot be found. Set aside the fact that these irregularities, presumed to be clerical and accidental, were found acceptable in the Lynch/Bennett race, not to mention in so many other elections. More fundamentally, those thirteen ballots are insufficient to make up Mr. Alves' vote deficit.

In short, it is not that there is a flimsy basis to revisit this election. It is that there is no basis to do so.

And this is the crux of the matter. The RI Supreme Court is now being criticized for interceding, with no basis whatsoever, in a fundamental and critically important democratic process and for doing so deliberately.

This I refuse to believe. This was not done knowingly. It is some sort of terrible misunderstanding - once again, probably clerical in nature - on the part of the honorable court. It is easily and swiftly remedied.

The Problem with Activism, Per Se

Although I obviously agree with his immediate point, something in this post by Damon Root strikes the ear funny, in a way that betrays the lack of long-term thinking among libertarians (emphasis added):

McCain's response? "That's an excellent point." I don't know if excellent is the word I'd use. When conservatives complain about judges "legislating from the bench," they mean protecting rights that aren't explicitly listed in the Constitution, such as privacy (or liberty of contract or the right to educate your child in a private school). Unless McCain starts campaigning to pass a new amendment reinstating slavery, I think Whoopi can rest easy. Besides, if she had read Lysander Spooner or Frederick Douglass, she'd know that slavery was already illegal before the ratification of the Thirteenth Amendment.

Are liberty of contract or the right to educate children in private school really on conservatives' hit list? From the piece (of his own authorship) that Root links on the words "liberty of contract":

Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

Root goes on to explain that, in the past, "judicial activism was associated almost exclusively with the protection of economic rights" and "that a principled form of libertarian judicial activism--that is, one that consistently upholds individual rights while strictly limiting state power--is essential to the fight for a free society." What's jarring is that modern conservatives like those outcomes, and it's instructive to consider ideological groups according to the beliefs that they actually hold, rather than in the relativist terms that equate today's "conservatives" with yesterday's.

The lesson for Root, who presumably joins many libertarians in approving of the more-recent social outcomes of judicial activism, is that the mechanism by which political ends are achieved matters, because the ends have a way of (quote, unquote) evolving. He describes the first, economic wave of judicial activism as a reaction to a movement among the states toward "legislating a variety of new 'progressive' regulations," which amounts to a preservation of understood structures against the imposition of change. The social wave of judicial activism, by contrast, has entailed transforming the established understandings of "liberty" to include (most prominently) various sexual behaviors, with the trail leading predictably toward social recognition of all sexual relationships as equivalent in all respects.

The first wave made the statement: "The government can't change that." The second: "The government must change that." The next step (again, predictable, indeed, already underway) is: "The government must enforce that." In other words, one citizen's liberty has a way of becoming another citizens compelled compliance when there's an untouchable arbiter to persuade.

Peeling back Root's statements by one layer, it becomes apparent that one could say much the same about any form of government or government action. He writes that "a principled form of libertarian judicial activism... is essential to the fight for a free society," but both his boundary for principle and his chosen mechanism are arbitrary. One could just as easily declare that a principled dictatorship — a principled theocracy — is essential. The problem is that those who find themselves in positions of imbalanced power will find ways to control the levers of power, to ensure that their "principles" are included in the practical definition of the term, and the smaller the group that upholds the principles, the smaller the task of manipulating it.

Me, I say we should let states institute foolhardy, even oppressive rules, as long as folks are remain able to vote, to speak, and to leave. If Rhode Island were to forbid the use of private schools, for example, statistics suggest that I'd hardly be alone in taking my tax dollars and productivity elsewhere. Relying on judges to determine — especially for the entire nation — what is right and wrong, we invite a precedent that will remain even when judicial wisdom takes a turn that we oppose.

Senator Irons' Flawed Defense

Former Rhode Island Senate President William Irons' initial line of defense against charges brought against him by the Rhode Island Ethics Commission rests, first, on a claim of immunity that has never before been recognized in the law and, second, on a claim that a judge can use an interpretation of the law without precedent to nullify the plain language of the state constitution.

1. According to (most recently) Bruce Landis of the Projo, the Rhode Island Ethics Commission has proceeded against Senator Irons for his casting of votes on legislation that directly affected a company he was taking commissions from, in their view, a violation of state ethics rules...

The Journal reported that Irons received $70,000 in commissions on a Blue Cross health-insurance policy for CVS employees in 2000 and 2001, and another $25,000 in 1999. Irons chaired the Senate Corporations Committee that handles health-care legislation, and opposed a controversial pharmacy-choice bill that Blue Cross and CVS also opposed.

2. The Ethics Commission derives it power to bring such cases from a 1986 amendment to the Rhode Island Constitution (Article III, section 8)...

Ethics commission -- Code of ethics. -- The general assembly shall establish an independent non-partisan ethics commission which shall adopt a code of ethics including, but not limited to, provisions on conflicts of interest, confidential information, use of position, contracts with government agencies and financial disclosure. All elected and appointed officials and employees of state and local government, of boards, commissions and agencies shall be subject to the code of ethics. The ethics commission shall have the authority to investigate violations of the code of ethics and to impose penalties, as provided by law; and the commission shall have the power to remove from office officials who are not subject to impeachment.

3. In defense, the lawyers for Senator Irons claim that the Ethics Commission can have no jurisdiction over official acts of legislators, due to the speech-in-debate immunity for legislators that is an original part of the Rhode Island Constitution (Article VI, section 5)...

Immunities of general assembly members. -- The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

In today's Projo article, Senator Irons' lawyer John Tarantino explains his client's basic position on speech-in-debate immunity vs. the Ethics Commission…

Tarantino said that because the Constitutional Convention delegates didn’t explicitly set aside the legislators’ immunity under the “speech in debate” doctrine, that immunity continues and legislators can’t be prosecuted for the way they vote.

4. The principle of speech in debate immunity is well-established in American jurisprudence. Courts have long held that the immunity extends beyond words spoken in floor and committee session, out to any official act associated with lawmaking. The key affirmation of this principle cited in the Irons case comes from the United States Supreme Court 1972 ruling in United States v. Brewster, where the Court made clear that speech in debate immunity prevented legislators from having their motivations for the votes probed by any branch of government seeking to enforce general statutes...

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

In other words, as offensive as it may be to the sensibilities of honest citizens, it is established precedent in American law that a legislator cannot be sued or prosecuted under general statute for voting a certain way based on the influence of cold hard cash, instead of concern for the common good.

The Brewster decision was brought into Rhode Island law in 1984 by the Rhode Island Supreme Court in its decision in Holmes v. Farmer.

5. However, in its Brewster ruling, the Supreme Court also made clear that speech in debate immunity did not place the official acts of legislators above every law imaginable. The Brewster decision reaffirmed a principle established six years earlier, in the case of United States v. Johnson, that speech-in-debate immunity did not automatically extend to laws whose specific purpose is regulating the conduct of legislators...

Without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

6. It's a dubious proposition, at best, to ever allow judges to circumvent the plain language of the Constitution, but in this case, the proper decision is especially a no-brainer:

The 1986 amendment to the Rhode Island Constitution charged the legislature with creating an ethics commission, specifically and narrowly empowered to create rules for the conduct of legislators. At that time the constitution was amended, the applicability of speech-in-debate immunity to laws specifically regulating legislator conduct had not been decided. The inclusion of direct language into the constitution subjecting legislators to Ethics Commission jurisdiction, therefore, resolved an ambiguity in the law -- using the most decisive means our system of government allows, a Constitutional amendment -- without creating any conflict with the existing body of speech-in-debate immunity law.

The only way for a court to rule that speech-in-debate immunity trumps the Constitutionally established powers of the Rhode Island Ethics Commission would be for that court to strike down the plain language of the constitution while ignoring established precedent at the same time. For the sake of the rule of law, let's hope that this attempted double-bank shot by Senator Irons and his lawyers doesn't hit its target.

Alert David Mittell...

From Andrew M. Seigel, Associate Professor at the Seattle University School of Law, posting at Prawfsblawg (h/t Orin Kerr via Instapundit)...

Without further ado, here is my highly subjective lists of the ten people most likely to find themselves on the Supreme Court at the end of a first Obama term...

(8) Deval Patrick--Was already on a lot of lists before we knew his friend was going to be the nominee. The rare elected official with all the right legal credentials. Would be much higher if not for the rockiness of his term as governor.

Lincoln Courthouse Delayed at Least a Year

With the other excitement going on in state government yesterday, this news-nugget, here reported on by Edward Fitzpatrick of the Projo, flew in a bit under-the-radar…

Construction of the proposed $71-million Blackstone Valley Courthouse will be postponed for a year and commence in fiscal year 2010, Supreme Court Chief Justice Frank J. Williams said yesterday during his annual State of the Judiciary address.

Williams reminded legislators they approved borrowing money for a new courthouse, and he reminded them of reasons for the project....But the state is facing a projected budget deficit of $150 million in the current fiscal year and a projected deficit of nearly $400 million in the fiscal year beginning July 1.

So, “in recognition of the hardship we all face,” Williams said he has spoken to House Speaker William J. Murphy and Senate President Joseph A. Montalbano about deferring the project for a year. “And the governor has indicated his support for construction if we wait another year,” he said. “Therefore, all have agreed to postpone the construction until fiscal year 2010.”

First Circuit Nomination Surprise: William Smith

Eagle-eyed William Felkner calls my attention to this news-breaking White House Press Release…

Nominations Sent to the Senate

Ricardo H. Hinojosa, of Texas, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)

Ricardo H. Hinojosa, of Texas, to be Chair of the United States Sentencing Commission. (Reappointment)

Michael E. Horowitz, of Maryland, to be a Member of the United States Sentencing Commission for a term expiring October 31, 2013. (Reappointment)

Stephen N. Limbaugh, Jr., of Missouri, to be United States District Judge for the Eastern District of Missouri, vice Donald J. Stohr, retired.

Ed Schafer, of North Dakota, to be Secretary of Agriculture, vice Mike Johanns, resigned.

William E. Smith, of Rhode Island, to be United States Circuit Judge for the First Circuit, vice Bruce M. Selya, retired.

George W. Venables, of California, to be United States Marshal for the Southern District of California for the term of four years, vice Raul David Bejarano.

UPDATE:

Apparently, the nomination is only a suprise with respect to the very recent round of Robert Corrente-or-Robert Flanders speculation. William Smith's name was mentioned about a year ago as one of the frontrunners for the position for the seat being vacated by Judge Selya in a Projo article by Scott MacKay.

UPDATE 2:

Here's some more biographical information on Judge Smith, from the White House website.

And John Mulligan and G. Wayne Miller have a story on the nomination in today's Projo, including the initial reactions from Rhode Island's Senators...

As they had the day that Mr. Bush nominated U.S. Magistrate Judge Lincoln D. Almond to the federal District Court last month, Senators Jack Reed and Sheldon Whitehouse declined to be interviewed about Smith’s nomination.

Instead, the Rhode Island Democrats, who will enjoy much deference from their colleagues as the Senate weighs the nomination, issued a noncommittal joint statement.

“Rhode Islanders deserve to have highly qualified judges who are thoughtful and independent,” said Reed and Whitehouse. “Before giving someone a lifetime appointment to the federal bench we need to carefully review their record. We will be sure to give Judge Smith’s nomination thorough and independent review.”

Clarence Thomas

Think of the way some people have sought to portray Supreme Court Justice Clarence Thomas.

Then check out this video of him.

Hard not to respect the man and see his depth.

(h/t Power Line)

Check out his book, too.

The RI Lead Paint Case: Sherwin-Williams Versus DuPont?

According to a report published by Legal Newsline, paint manufacturer Sherwin-Williams wants the Rhode Island courts to take a closer look at how DuPont's lead-paint agreement money is being spent, and what that says about what the costs of lead remediation should be...

Sherwin-Williams is requesting that two portions of DuPont's settlement with the State be removed because they serve only Lynch's interests. DuPont settled before the State's trial against several paint companies, three of which were found liable for creating a public nuisance when they manufactured lead paint.

Sherwin-Williams filed two motions Wednesday -- one to value the DuPont settlement and another to stay the lead paint abatement process ordered by Superior Court Judge Michael Silverstein.

"In addition to valuing the overall DuPont settlement, Sherwin-Williams also moves to disgorge two monetary amounts from the settlement that were improperly diverted to two purely private purposes, to satisfy either the Attorney General's or the State's counsel's private interest," attorneys for Sherwin-Williams wrote.

In their filing, Sherwin-Williams' attorneys repeatedly draw attention to several figures associated with the DuPont's "settlement" (which, I believe, DuPont still claims is not a settlement), taking the position that only $4.25 million of $10 million or $12 million that DuPont agreed to pay out is going directly to remediate lead-affected homes in Rhode Island, 600 homes in total. On its surface, much of the filing is about making sure that Sherwin-Williams is not charged a second time for work that DuPont is supposed to be responsible for.

The larger goal of bringing this matter to the attention of the court, however, may be to help establish that Rhode Island Attorney General Patrick Lynch's proposed remediation figure is inflated. AG Lynch would like the three defendants found liable for creating a lead-paint nuisance in Rhode Island (Sherwin Williams, NL Industries, Millenium Holdings) to pay a total of $2.4 billion dollars to remediate 240,000 homes. However by Sherwin-Williams' reasoning, DuPont has been assessed a maximum figure of about $7000 per home ($4.25 million divided by 600, and I say maximum because they are asking for the DuPont settlement to be officially valued by the court, and I don't think they'd be doing that if they thought the $7000-per-home assessment was going to go significantly up). Multiply the 240,000 homes in Rhode Island needing to be remediated (actually 239,400 by SW's estimate) by $7000, and you arrive at a total of about $1.7 billion dollars.

That's a $700 million difference between the Attorney General's number and the number being backed out by Sherwin-Williams. As one of three defendants potentially responsible for financing a remediation program, that's a potential savings of over $200 million for Sherwin-Williams. For a regular person or a small business, a $200 million reduction in the amount owed for anything would be huge, but for a big company like Sherwin-Williams, it's probably not a enough of a reduction to be considered the best case outcome. It's pretty clear that Sherwin-Williams is laying the groundwork to use the DuPont "settlement" to argue that they owe significantly less (should they be unable to get the verdict completely overturned), but not yet clear to us legal laypeople what the full chain of their reasoning will be.

Impeach Frank Williams?

Kevin McKenna, president of the 1986 Rhode Island Constitutional Convention, writes in today's Projo that he believes Frank Williams' participation in the traffic tribunal magistrate selection process created by the General Assembly to be an impeachable offense…

Chief Justice Frank Williams’s Oct. 11 “appointment” of William R. Guglietta, chief legal counsel to Majority Leader Gordon D. Fox (D.-Providence), to the position of chief magistrate of the state Traffic Tribunal was an impeachable act, a violation of the constitutional principle of separation of powers, and a violation of the chief justice’s oath to enforce the state constitution.

A chief justice is not a governor. Constitutional officers are prohibited from exercising the power of other constitutional officers. In the 2004 separation of powers constitutional amendments, the governor was delegated by the electors the same powers of appointment as a U.S. president to appoint principal officers of the state.

I agree with Mr. McKenna that letting judges appoint other judges (and a magistrate is a judge) is a violation of the principle of separation of powers, but I'm not sure if Chief Justice Williams playing along with the flawed rules created by the legislature rises to the level of an impeachable offense.

Mr. McKenna does suggest a number of other remedies to the problem of the judicial branch exercising executive power certainly worthy of public consideration…

• Urge your governor not to fund unconstitutional appointments. Surely funds for unconstitutional appointments could be better used for other purposes, such as funding for abandoned children in the state’s custody.
• Urge your state senator not to approve appointments to unconstitutional positions.
• Urge your representative and senator to repeal and amend the laws delegating the governor’s budgetary and appointment powers to the chief justice and to other chief judges and to the chief magistrate.
• Vote in 2008 only for a state representative and senator who supports constitutional judicial reform.

UPDATE:

Commenter "Brassband" disagrees with Mr. McKenna's position on the constitutionality of judges appointing magistrates, and even my suggestion that the legislature has created a process that's flawed, making the eminently reasonable argument that "unconstitutional" must be defined in terms of what's in the Constitution...

McKenna is not reading the R.I. Constitution correctly.

The recent "separation of powers" amendments specifically provided in Art. 9, sec. 5 that the General Assembly could assign the appointment power for lesser officers with the judicial branch in this manner:

---

Section 5. Powers of appointment. -- The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.

---

This is completely consistent with Article II, sec. 2 of the U.S. Constitution, which similarly permits Congress to authorize such appointments to be made by "the courts of law."

As I have pointed out in other comments, in the federal system, U.S. District Judges appoint Magistrates within their own Districts, and the R.I. provision is obviously patterned after that system.

The voters specifically adopted a system based on the federal model, and, whether McKenna likes it or not, the magistrate appointment system fits that pattern.

UPDATE REBUTTAL:

Contra "Brassband", commenter "David" defends Mr. McKenna's position on the basis that Rhode Island magistrates are true judges while Federal magistrates are not...

Federal magistrates preside mainly over preliminary hearings relating to evidentiary and discovery issues and their decisions are not effective until reviewed and approved by the district court judge responsible for the case. The judge is, of course, nominated by the president and approved by the senate in conformance with the Constitution.

Rhode Island magistrates, by contrast, have all the powers of judges as Mr. McKenna pointed out in his op-ed. The actions of traffic tribunal magistrates have the same legal effect as the acts of any trial court judge in the state and are reviewable only by appeal to the Supreme Court. Rhode Island magistrates are judges in all but name and, with apologies to Shakespeare, that which we call a judge by any other name must be approved by the judicial nominating commission, the governor and the senate.

Of Federal Judges and Federal Candidates

1. According to Charles Bakst in Sunday's Projo, Warwick Mayor Scott Avedisian is more interested in running for House or Senate at a future undisclosed date than he is in running for governor in 2010…

[Lincoln Chafee] says he’d welcome a gubernatorial bid by Warwick Mayor Scott Avedisian, a close ally. Avedisian, who says he has no plans to leave the party, says he’s focused now on a 2008 reelection. While not ruling out a try for governor later, he’s more interested in the House or Senate.

2. The Political Scene column from today's Projo takes it as a given that Robert Flanders is out of the running for the vacant seat on the First Circuit Court of Appeals, and adds another name to the previously floated name of Robert Corrente…

Political Scene has heard that the White House might be getting close to nominating people for those vacancies, which were created when former Chief U.S. District Judge Ernest C. Torres and former Circuit Judge Bruce M. Selya left full-time service and assumed senior status about 10 months ago.

Those seen as front-runners for the 1st Circuit seat include U.S. Attorney Robert Clark Corrente and District Court Judge William E. Smith. Those seen as front-runners for the District Court judgeship include Corrente and U.S. Magistrate Judge Lincoln D. Almond, son of former Republican Gov. Lincoln C. Almond.

However, as some of us have feared, Senate Democrats, via Senator Sheldon Whitehouse, are indicating that they may not approve any new judicial appointments made by the Bush administration…

Whitehouse, a former U.S. Attorney and Rhode Island attorney general, spoke at the Roger Williams University School of Law last week, and afterward he was asked if the Bush administration had reached the point at which it’s too late to make those appointments.

“I think we’ve reached it, particularly based on the process we’ve gone through so far,” Whitehouse replied. “There has been zero meaningful discussion between the White House and the Senate on these appointments.”

Judge Selya is not impressed by Senator Whitehouse's characteristic hyper-partisanship, when the subject is judicial appointments…

When reached on Friday, Selya said, “I’m really very disappointed in the senator’s remarks. This is not a political game. The courts and the country and the state need these judges, and the question ought to be not who makes these nominations but the quality of the nominees.”

Selya, who was appointed by former President Ronald Reagan, said, “If this president or any future president nominates a first-class person, then that man or woman deserves to be considered on the merits and not held up because someone is waiting for some kind of political accommodation to be made.”

It looks as if a fitting slogan, on many levels, for Senator Whitehouse's next re-election campaign will be "Qualifications no! Partisanship yes!".

Senator Montalbano's Flawed Defense, Part 1

Rhode Island Senate President Joseph Montalbano wants four of the charges brought against him by the Rhode Island Ethics Commission thrown out on the grounds that "members of the General Assembly cannot be prosecuted for an offense based on a past legislative act such as voting". The legal claim is based on the "speech-in-debate" clause in the Rhode Island Constitution, the last sentence of Article VI, section 5…

The persons of all members of the general assembly shall be exempt from arrest and their estates from attachment in any civil action, during the session of the general assembly, and two days before the commencement and two days after the termination thereof, and all process served contrary hereto shall be void. For any speech in debate in either house, no member shall be questioned in any other place.

Talking to Projo columnist Charles Bakst, Senator Montalbano's defense counsel Max Wistow explained how broad he believes the immunity privilege to be…

Montalbano is accused of a conflict for voting to support legislation for a West Warwick casino while doing legal work for the town involving land abutting the proposed site.

The commission plans a trial-like hearing in six weeks, but Wistow wants a court to block it…Under his view about votes themselves being off limits, Wistow says you could still prosecute a legislator if, for instance, you could show he agreed to take a bribe. But, I asked after Tuesday’s commission session, suppose he hadn’t plotted with anyone? Suppose he sought to make a buck by, say, voting to sell the state a building he owns?

Wistow said the solution is for voters to throw the guy out in the next election. Or delete the Constitution’s speech-in-debate provision, something I wouldn’t hold my breath waiting to happen.

Speech-in-debate immunity is an aspect of the doctrine of separation of powers, inserted into both the state and the Federal Constitution to prevent the executive and judicial branches of government from improperly interfering with the workings of the legislature by using criminal or civil charges to punish legislative debate.

According to briefs filed in this case, the key ruling establishing the scope of speech-in-debate immunity was the 1972 United States Supreme Court case United States v. Brewster (introduced to Rhode Island law via the State Supreme Court decision in the 1984 case of Holmes v. Farmer). In Brewster, the court held that a legislator could not be questioned about his votes, even when compelling other evidence existed indicating that he or she had accepted bribes…

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

The response from the Ethics Commission to Senator Montalbano's claim that floor-actions of legislators are immune from Ethics Commission scrutiny rests heavily on the "unique constitutional mandate" (a phrase taken from the Ethics Commission brief) of the RI Ethics Commission. Under the Rhode Island Constitution, the Ethics Commission does not truly belong to the legislative, executive or judicial branches of government, but is built from an amalgam of functions that have been separated from their "natural" branches of government and united under the Commission. Because of its special nature, the Commission's lawyers argue that Ethics Commission proceedings do not constitute executive or judicial interference with the legislative branch, and that…

1. Ethics commission proceedings do not come into conflict with the speech-in-debate clause, and...
2. In the absence of such a conflict, there is no basis for the courts (or anyone else) to override the clear intent of the people expressed via the 1986 Constitutional Convention that subjected legislators to the jurisdiction of the Ethics Commission.

Even in the absence of any unique Constitutional standing, however, Senator Montalbano's claim of immunity would still be very weak, as the the Brewster precedent cited by Senator Montalbano’s defense team does not apply to the laws relevant to this case. We know this because the Supreme Court has said so....

Corrente over Flanders for the First Circuit Judgeship?

National Review Online Capitol Hill correspondent David Freddoso is reporting that President Bush is leaning towards appointing Robert Corrente to the First Circuit Court of Appeals over Robert Flanders, the choice recommended by former Senator Lincoln Chafee...

In March 2006, liberal former Sen. Lincoln Chafee (R) had been asked by the White House to submit three names as possible nominees, from which the President planned to choose. But Chafee, ever dodgy in his dealings with George W. Bush, only submitted one name, that of Flanders. An active member of the state GOP who is described by sources in the state as a “real Republican,” Flanders is also publicly supported by conservative Gov. Donald Carcieri (R.). He happens to be a personal friend of Sen. Sheldon Whitehouse (D., R.I.), causing speculation that his confirmation would have been relatively easy.

But the White House was upset that Chafee submitted just one name, and interpreted this as an attempt by the senator to force President Bush’s hand. As a result, Flanders’s recommendation has languished for well over a year with no action taken. The administration is said to be leaning instead toward nominating Robert Clark Corrente, the current U.S. attorney from Rhode Island, whom Chafee had earlier recommended for a federal district judgeship.

A significant local impact of this decision may be its effect on Operation Dollar Bill, the Federal probe into corruption at the Rhode Island statehouse currently being led by Corrente.

New Jersey Supreme Court Rejects the Public Nuisance Rationale in Lead-Paint Suits

In a decision that likely will have ripples reaching Rhode Island, the State Supreme Court of New Jersey has ruled that lead paint manufacturers cannot be held liable for lead-paint clean-up costs under “public nuisance” laws. If NJ municipalities want to take lead-paint manufacturers to court, they must do so under the rules of product liability law, which involve a substantially higher burden of proof. The Philadelphia Inquirer has the details…

The court said municipal and county officials can't sue paint manufacturers, which included DuPont Co. of Wilmington and Sherwin-Williams Co. of Cleveland, for creating a public nuisance with their lead-based coverings. Another defendant was American Cyanamid Co., which now is owned by Wyeth, the Madison, N.J., pharmaceutical company.

"Were we to find a cause of action here, nuisance law would become a monster," the state justices said in a 71-page opinion....

The court determined that the towns and counties failed to identify a special injury that could be compensated. It said the claim was essentially a product-liability issue, and falls under the state Product Liability Act, which excludes coverage for exposure to toxic material.

The New Jersey suit was among a number of cases filed by U.S. cities and states over lead-paint damages that have been thrown out. The Missouri Supreme Court ruled this week that St. Louis officials couldn't use the so-called nuisance theory to sue manufacturers over the costs of dealing with the paint.

But a Rhode Island jury ruled last year that Sherwin-Williams, NL Industries Inc. and Millennium Holdings L.L.C. were responsible for cleaning up problems created by their products. It was the industry's first such loss.

Richard Faulk, who has researched and written extensively on the subject of lead paint and lead paint law, offers this brief synopsis of the ruling…

The crux of the holding is the Court’s conclusion that the conduct of the defendants, who manufactured and sold a product which was legal at the time of its distribution, is not the type of conduct that “creates” a public nuisance. Instead, the nuisance is only “created” when the premises become dangerous through “deterioration and poor maintenance by the purchasers.”

Now, legal laypeople (like me) may be wondering how much impact a New Jersey ruling ultimately has on the affairs of Rhode Island. After all, the United States is a Federal system, where the different states are allowed to set their own legal rules. However, two explanations have already been advanced as to why the NJ ruling may impact the resolution of the RI lead paint case. One explanation comes via Jane Genova's Law and More blog, from a source identified only as a "brandname plantiff attorney"...

NJ courts have national standing on issues of strict liability doctrine. Prominent jurists such as William Brennen have sat on that court. In addition, the fundamental issue in this ruling is public nuisance. In MO, it was proof of causation or product ID. Since the plaintiff law firm Motley Rice has been involved in the NJ case, this can be construed as a significant blow to the firm's influence going forward. Also, the decision represents the end of the road for this issue in NJ. There is no where further to go.

As New Jersey goes so goes the nation (at least when it comes to product liability jurisprudence)? That’s not exactly confidence-inspiring proof of the rationality of our legal system.

A second, broader explanation comes from Mr. Faulk, who argues that the New Jersey court’s ruling is rooted in legal principles so fundamental, they date back to the Magna Carta and the structure of common law itself…

In New Jersey, as in Rhode Island and many other states, the legislature and regulatory authorities have allocated the primary responsibility for detecting and preventing lead risks to property owners. In Rhode Island, the trial court flatly ignored the impact of these mandates from other branches of government, holding that they were irrelevant to the “common law” remedy sought by the State. In New Jersey, however, the Supreme Court paid careful attention to the legislative mandates and properly recognized that their requirements were essential considerations in evaluating the scope and meaning of the remedy being pursued… Although the “common law” may have its sources solely within the judiciary, the people have increasingly imposed policies that regulate its discretion. These began as early as the Magna Carta and have proceeded through the industrial revolution to mature into today’s complex legislative and regulatory environment. The impact of these mandates cannot be ignored, as they were in Rhode Island, merely because a court is faced with a “common law” cause of action.

Law and More has more analysis here and here.

Carcieri Says "No" to Extension of Chief Justice's Fiefdom

Rhode Island Chief Justice Frank Williams made headlines a few months ago for his smackdown of Governor Carcieri's idea of across the board cost-cutting as "draconian." Well, the Governor is waving a bloody steak in front of the Judicial lion again:

Governor Carcieri is criticizing legislators for authorizing up to $71 million in borrowing for a new state courthouse in Lincoln when the state is trying to close a $300-million budget gap.
...

“Governor Carcieri does not support building yet another brand new courthouse at this time,” Carcieri spokesman Jeff Neal said yesterday. “State officials are working to deal with the largest budget crisis in recent memory. The solution to that crisis involves a myriad of proposed budget cuts that will affect thousands of Rhode Islanders. We simply cannot afford to pay for another shiny new state office building.”

Neal noted the new Kent County Court House, which cost $60 million, opened last August, and the new Traffic Tribunal courthouse, which cost $21.8 million, opened in January. “In the last two years, the judiciary has already opened two new, expensive courthouse buildings,” he said. “I think we can wait a few years before we open a third.”

Heck, not even Lincoln wants it. Chief Justice Williams didn't comment (though, as in the past, I'm sure he'll have something more to say), but a spokesman...

...said Williams “still thinks it is important to build a Blackstone Valley courthouse for all of the reasons we’ve been citing all along.”

The courthouse would “better serve the 12 communities of the Blackstone Valley, where there has been significant population increase in the last several years,” Berke said. “Now, people from those communities have to come to Providence, where parking is a problem. And the other major factor is aimed at decongesting the Garrahy Judicial Complex” in Providence.

Berke noted the initial spending on the project would be deferred a year. “The chief justice appreciates the governor’s concerns about the state’s deficit but still feels it is important that this project go forward at some point,” he said.

Do I detect a slight backing off, there? Regardless, spare me the pity party about the people who have to travel "all the way to Providence". And if congestion at the Garrahy complex is such a problem, why don't we just funnel them over to the Taj Ma-Williams Courthouse in Warwick?

To Appoint or To Reappoint, That is the Question

One of the restrictions on membership on Rhode Island’s Judicial Nomination Commission, part of the system intended to provide for merit selection of judges in Rhode Island, is this…

No member shall be reappointed to the commission.

Governor Donald Carcieri wants to interpret this law as prohibiting only sitting members of the commission from being reappointed to consecutive terms, and reappoint someone (C. June Tow) who already served a previous term between 1998 and 2002. Senator James Sheehan (D-Narragansett/North Kingstown) argues in today’s Projo that this interpretation of the law is absurd, as it would mean that the same group of people could be reappointed to the commission ad infinitum, as long as they took some time off between terms. Senator Sheehan has asked the Attorney General for an advisory opinion on the issue.

Jon Pincince of RI Law Journal has an analysis of how the legislature’s intent probably was to bar anyone from serving more than one term, but that the letter of the law does allow room for either interpretation. (Obviously, the RI Legislature needs more practice in writing effective reform laws!)

Though I am skeptical of relying too heavily on “legislative intent” arguments, which are not applied with consistency, with all of the other major problems that Rhode Island is facing, I don’t see fighting this battle as a great use of the Governor’s political capital.

The Lead Paint Trial -- And Maybe Lawyers Getting Sued?

With the exception of DuPont agreeing to roughly double its contribution to the Children's Health Forum as part of its let's-not-call-it-a-settlement out of the case, the Rhode Island lead paint trial hasn’t been much in the local news lately. However, the national business and legal communities are still keenly watching to see what happens next.

NL Industries, Millennium Holdings, and Sherwin-Williams were found guilty last year of creating a “public nuisance” because they sold lead paint. They will likely appeal the verdict to Rhode Island's Supreme Court. Grounds for appeal haven't yet been specified, but past statements by the defendants' lawyers and some recent legal analysis of the verdict suggest that an appeal will likely be based, at least in part, on the fact that the state never proved that the defendants sold more or less lead paint in Rhode Island than did any other manufacturer. The trial court, in fact, did not require the state to show that products sold by the defendants were the major source of the problem.

Jane Genova of the Law and More blog offers commentary from an unnamed “legal expert” on the likely outcome of an appeal. You might ask how an expert can analyze an appeal without knowing the grounds. The answer would be by knowing how Rhode Island works, regardless of the case...

It seems to them and to me that the RI Supreme Court likes to see gradual changes in the law and not those which could be interpreted as drastic. In general, this Court tends to offer narrow opinions in which it only decides the matters immediately in front of it. That's to say: This Court hasn't in the past used opinions to make broad social commentary.

However, the Court is likely to give deference to the RI legal community at large and considers standing and respect within that community to be very important. Sources say that the conundrum is this: The RI Supreme Court, according to past rulings and other statements, is not likely to be comfortable with Superior Court Justice Michael Silverstein's decision in this case. That's primarily because it is a broad expansion of the public nuisance legal concept. But, would the RI Supreme Court reverse this decision and risk contempt of the RI legal community? That's hard to say.

Also, as most of us lead paint watchers know, RI is an old boys network in many ways. If the state Attorney General and or Judge Silverstein has strong enough pull with the legal community at least it could mean that the RI Supreme Court justices bite their tongues.

Another grounds for appeal, one that might be more difficult for the old boy network to ignore, may be based on the state's argument during the trial that the number of new lead-poisoning cases per year in Rhode Island had become constant. The state argued this was evidence that the situation could not improve unless more active clean-up measures were undertaken. However, according to an extensive report on the history of lead paint related issues authored by Richard O. Faulk and John S. Gray and published by the Bureau of National Affairs (a privately-owned, legally-oriented publishing company), the state obtained updated evidence during the trial showing the number of new lead poisoning cases to be declining under existing remediation laws and regulations, but did not share this information with the court...

During the trial, the State and its experts relied on 2004 data to argue that Rhode Island’s lead-poisoning prevention programs had reached the limits of their effectiveness, that too many children still had elevated blood lead levels, and that elevated blood lead levels had ‘‘plateaued.’’

After the verdict was returned, the defendants complained about this argument for a fundamental reason – it was simply untrue. The truth is that there were 621 elevated blood lead levels in Rhode Island for all of 2005 (compared to 1,167 elevated blood lead levels in 2004), a drop of 47% from the previous year. The State knew these facts by not later than January 31, 2006 (during the trial) when Rhode Island’s Department of Health prepared a draft report documenting the 2005 numbers. Yet, after learning that the new 2005 data directly contradicted its theme of the ‘‘plateauing’’ of declining lead levels, the State still allowed its ‘‘special assistants’’ to continue claiming that a plateau existed. According to the defendants, this misrepresentation of facts is sufficient grounds for granting a new trial.

To compound the problem, neither the State nor its ‘‘special assistants’’ disclosed this relevant and critical information regarding the effectiveness of Rhode Island’s existing lead poisoning prevention program to the defendants after it became aware of the new data. The choice was made even though there was a discovery request seeking that very information. Defendants argue that the state breached its duty of candor to the Court and its Rule 26(e) duty to supplement its discovery responses. They claim that this undisclosed information was relevant to the heart of the issue in this trial -- whether a public nuisance exists in Rhode Island -- and was crucial to Defendants’ case.

To rebut this claim, the State and its special assistants claim that they were not obligated to supplement discovery because the Court ended discovery on May 30, 2005. Therefore, the State argues that the defendants were obligated to go to the judge to seek an order requiring the State to supplement its discovery.

And in a possible wild-card development, based on the many irregularities associated with this case (most notably, possible special treatment given to DuPont and the use of contingency-fee lawyers who are motivated to seek the most expensive remedy, not necessarily the most effective one) there is some loose talk beginning about the possibility of a Sherwin-Williams shareholder lawsuit against the state of Rhode Island and/or the Attorney General of Rhode Island and/or the contingency fee lawyers hired by the Attorney General...

What I would like to see for a change is a shareholder lawsuit against the State of Rhode Island for the financial harm we have suffered as owners. Our loss would be both the artificial stagnation of the stock price, the money spent on this litigation that cannot be used for corporate purposes or returned to us owners as a dividends or share repurchases and the time executives have spent on the litigation, not the selling of paint and coatings.

Jane Genova, again, quotes a "Wall Street expert" on whether a shareholder lawsuit could succeed...

I don't see a shareholder suit against the state of Rhode Island as likely. However, damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit. This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue. From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.

It's not clear how likely a shareholder lawsuit really is, but it is clear that the chances of this all being resolved in a timescale of less than years is increasingly remote.

The Lead Paint Trial -- And Maybe Lawyers Getting Sued?

With the exception of DuPont agreeing to roughly double its contribution to the Children's Health Forum as part of its let's-not-call-it-a-settlement out of the case, the Rhode Island lead paint trial hasn’t been much in the local news lately. However, the national business and legal communities are still keenly watching to see what happens next.

NL Industries, Millennium Holdings, and Sherwin-Williams were found guilty last year of creating a “public nuisance” because they sold lead paint. They will likely appeal the verdict to Rhode Island's Supreme Court. Grounds for appeal haven't yet been specified, but past statements by the defendants' lawyers and some recent legal analysis of the verdict suggest that an appeal will likely be based, at least in part, on the fact that the state never proved that the defendants sold more or less lead paint in Rhode Island than did any other manufacturer. The trial court, in fact, did not require the state to show that products sold by the defendants were the major source of the problem.

Jane Genova of the Law and More blog offers commentary from an unnamed “legal expert” on the likely outcome of an appeal. You might ask how an expert can analyze an appeal without knowing the grounds. The answer would be by knowing how Rhode Island works, regardless of the case...

It seems to them and to me that the RI Supreme Court likes to see gradual changes in the law and not those which could be interpreted as drastic. In general, this Court tends to offer narrow opinions in which it only decides the matters immediately in front of it. That's to say: This Court hasn't in the past used opinions to make broad social commentary.

However, the Court is likely to give deference to the RI legal community at large and considers standing and respect within that community to be very important. Sources say that the conundrum is this: The RI Supreme Court, according to past rulings and other statements, is not likely to be comfortable with Superior Court Justice Michael Silverstein's decision in this case. That's primarily because it is a broad expansion of the public nuisance legal concept. But, would the RI Supreme Court reverse this decision and risk contempt of the RI legal community? That's hard to say.

Also, as most of us lead paint watchers know, RI is an old boys network in many ways. If the state Attorney General and or Judge Silverstein has strong enough pull with the legal community at least it could mean that the RI Supreme Court justices bite their tongues.

Another grounds for appeal, one that might be more difficult for the old boy network to ignore, may be based on the state's argument during the trial that the number of new lead-poisoning cases per year in Rhode Island had become constant. The state argued this was evidence that the situation could not improve unless more active clean-up measures were undertaken. However, according to an extensive report on the history of lead paint related issues authored by Richard O. Faulk and John S. Gray and published by the Bureau of National Affairs (a privately-owned, legally-oriented publishing company), the state obtained updated evidence during the trial showing the number of new lead poisoning cases to be declining under existing remediation laws and regulations, but did not share this information with the court...

During the trial, the State and its experts relied on 2004 data to argue that Rhode Island’s lead-poisoning prevention programs had reached the limits of their effectiveness, that too many children still had elevated blood lead levels, and that elevated blood lead levels had ‘‘plateaued.’’

After the verdict was returned, the defendants complained about this argument for a fundamental reason – it was simply untrue. The truth is that there were 621 elevated blood lead levels in Rhode Island for all of 2005 (compared to 1,167 elevated blood lead levels in 2004), a drop of 47% from the previous year. The State knew these facts by not later than January 31, 2006 (during the trial) when Rhode Island’s Department of Health prepared a draft report documenting the 2005 numbers. Yet, after learning that the new 2005 data directly contradicted its theme of the ‘‘plateauing’’ of declining lead levels, the State still allowed its ‘‘special assistants’’ to continue claiming that a plateau existed. According to the defendants, this misrepresentation of facts is sufficient grounds for granting a new trial.

To compound the problem, neither the State nor its ‘‘special assistants’’ disclosed this relevant and critical information regarding the effectiveness of Rhode Island’s existing lead poisoning prevention program to the defendants after it became aware of the new data. The choice was made even though there was a discovery request seeking that very information. Defendants argue that the state breached its duty of candor to the Court and its Rule 26(e) duty to supplement its discovery responses. They claim that this undisclosed information was relevant to the heart of the issue in this trial -- whether a public nuisance exists in Rhode Island -- and was crucial to Defendants’ case.

To rebut this claim, the State and its special assistants claim that they were not obligated to supplement discovery because the Court ended discovery on May 30, 2005. Therefore, the State argues that the defendants were obligated to go to the judge to seek an order requiring the State to supplement its discovery.

And in a possible wild-card development, based on the many irregularities associated with this case (most notably, possible special treatment given to DuPont and the use of contingency-fee lawyers who are motivated to seek the most expensive remedy, not necessarily the most effective one) there is some loose talk beginning about the possibility of a Sherwin-Williams shareholder lawsuit against the state of Rhode Island and/or the Attorney General of Rhode Island and/or the contingency fee lawyers hired by the Attorney General...

What I would like to see for a change is a shareholder lawsuit against the State of Rhode Island for the financial harm we have suffered as owners. Our loss would be both the artificial stagnation of the stock price, the money spent on this litigation that cannot be used for corporate purposes or returned to us owners as a dividends or share repurchases and the time executives have spent on the litigation, not the selling of paint and coatings.

Jane Genova, again, quotes a "Wall Street expert" on whether a shareholder lawsuit could succeed...

I don't see a shareholder suit against the state of Rhode Island as likely. However, damages from an unconstitutional act such as a contingency-based-lawsuit can be addressed to the plaintiff firm of Motley Rice and to possible Rhode Island parties who deemed to benefit. This could be highly likely given the possible missteps of Rhode Island Attorney General Patrick Lynch in what I perceive as alleged preferential treatment of DuPont. I will add this: The state of Rhode Island has a major hurdle to get past the contingency issue. From that, there could well be an onslaught of litigation directed at Attorney General Patrick Lynch and the plaintiff law firm of Motley Rice.

It's not clear how likely a shareholder lawsuit really is, but it is clear that the chances of this all being resolved in a timescale of less than years is increasingly remote.

Global Warming at the US Supreme Court

For those interested in the “global warming” case (Massachusetts v. EPA) heard by the Supreme Court on Wednesday (which Rhode Island is a party to), Jonathan Adler of the Volokh Conspiracy has been compiling links on the media coverage, the Supreme Court has already posted the official transcript of the oral arguments, and the legal briefs filed in the case are available from the Community Rights Council website.

In one sentence, the case is not directly about the science of global warming, but about whether a) states can sue a Federal agency to force it to enact regulations in areas where they have not been granted express authority by Congress and b) whether anyone has the standing to sue for damages for the broad, collective effects of something like “global warming”. Expect the Court’s four liberal justices to rule that “Statutory mandates on executive branch agencies should be interpreted very broadly in places where we agree with the policy outcomes”, the four conservative justices to say that “Congress must grant specific authorization to a Federal agency before it can act”, and Anthony Kennedy to be the swing vote.

Scalia on the Supreme Court & Social Issues

Supreme Court Justice Scalia:

Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday.

Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."

Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.

"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."

"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking."

Scalia said courts didn't use to decide social issues like that.

"It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."

Justice Samuel Alito Jr., the newest member of the Supreme Court, agreed that "the same thing exists, but to a lesser degree, with the lower courts."...

Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."

Why is the approach of allowing social issues to be resolved by appropriately messy democratic processes, instead of imperial judges, so difficult for people to understand and accept?

ADDITIONAL THOUGHTS:

In response to Bobby's first comment, the posting entitled Moving Beyond Loyalty to the Rule of Law Mixes Law & Politics describes a different view of the judiciary's role and contains a wealth of further links to other postings that elaborate further:

...That exchange crystallized the fundamental difference between John Roberts and the eight Democrats on the Senate Judiciary Committee. The Democrats believe a good judge will move "beyond loyalty" to the rule of law, if necessary, and seek to advance certain political outcomes--in Durbin's question, the expansion of personal freedom. Roberts dissents: He believes a good judge will distinguish between law and politics and stick resolutely to the law, regardless of the result...

Roberts took care on numerous occasions to emphasize the importance of the distinction between law and politics as it relates to judging. For example, in response to Lindsey Graham's question about what the judge regarded as the biggest threats to the rule of law today, Roberts identified only one threat--the "tendency on behalf of some judges to take . . . [their] authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law"--the province of elected officials. He observed: "Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before and I'll just repeat myself: The Framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, 'Let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind."...

In addition, from Rediscovering Civility and Purpose in America's Public Discourse:

JUDICIAL ACTIVISM: COMMANDEERING THE PUBLIC DEBATE & VIOLATING THE FOUNDING PRINCIPLES OF AMERICA

Many of these aggressive attempts by liberal fundamentalists to redirect societal practices have been done through a hyperactive judiciary. It has been going on for enough decades now and, with our weak knowledge of history, many Americans do not appreciate how judicial activism is a relatively recent phenomenon, it violates the governmental principles upon which our nation was founded, and it has an insidious effect on the relationship between the government and the governed.

Chief Justice Warren Burger elaborated on this in the 1982 case of Plyler v. Doe:

The Constitution does not constitute us as "Platonic Guardians" nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom,' or 'common sense.'...We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policy-making role.

Subsequently, Justice Antonin Scalia reinforced this point in his dissent in the 2003 case of Lawrence v. Texas:

The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.

In the case of West Virginia State Board of Education v. Barnette nearly 70 years ago, Justice Felix Frankfurter also emphasized how judicial activism is contrary to American principles of government:

As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must decide which of two claims before the Court should prevail, that of a State to enact and enforce laws within its general competence or that of an individual to refuse obedience because of the demands of his conscience, is not that of the ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law...

When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts..." he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phase of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered...

This is no dry, technical matter. It cuts deep into one's conception of the democratic process...

In his book entitled The Uncivil War: How a New Elite is Destroying our Democracy, David Lebedoff offers an explanation about the intent underlying the push for judicial activism:

Many who loudly insist on the appointment of activist judges describe themselves as political "activists," as well. But how can one possibly endorse both judicial and political activism, unless, of course, political activism has come to mean something different from what the label implies? One who believes in judicial activism can be a political activist only if he or she no longer views political activity as directed toward the achievement of majority support. If one believes that the point of politics is to see that society does what is "right," regardless of what the public thinks or wants, only then can these two forms of activism indeed be reconciled.

Lebedoff then discusses the eventual consequences of judicial activism:

As those of one political philosophy or another seek to write their own notions into law, with no restraint from themselves or the public, the immigrant wisdom of Justice Frankfurter may be recognized at last for what it really is: a timeless warning that if consent of the governed is not our goal, it will become our memory.

In their book entitled Democracy by Decree: What Happens When Courts Run Government, Ross Sandler and David Schoenbrod note how judicial activism undermines government accountability to the citizenry:

Democracy by decree undermines accountability of government to the voters. Democratic accountability is, in our constitutional scheme, not an unalloyed good. The framers of the U.S. Constitution recognized that a democratically accountable government may reflect bigotry or be inattentive to the people's needs or rights that they should have. For that reason, the Constitution includes rights and authorizes Congress to enact statutes necessary to ensure that state and local government honor them. These are rights, not aspirational goals dressed up as rights.

As long as rights are honored, everything else, including how the rights are honored, is a question of policy to be left to elected officials. The Constitution and its state and local counterparts set up the ground rules for how policy should be made. These ground rules are designed with careful attention to the potential faults of people and those they elect. The guiding principles are division of power and accountability.

Division of power is required because of distrust of both the people and those whom the people elect. Power is divided, first of all, between those who are empowered to govern and those who are governed. Those who are governed retain the power to vote the elected out of office. The power of those who govern is further divided many ways - between the federal government and the states, and within each level of government among the legislature, the executive, and the courts. Inherent in the whole scheme is that elected officials should bear the responsibility for the key policy choices and must retain the power to change policy.

Although the system is far from perfect, democracy by decree makes it worse. It does not substitute the dispassionate rule of judges for the rule of politicians. Decisions by controlling groups are politics in a different form. By hiding ordinary politics behind the robes of judges, democracy by decree makes government less accountable and therefore less responsive. Judicial reason does not supplant politics. Instead, the courts become political.

It is only through the "messiness" of a reasoned public discourse that a broad societal consensus can be achieved on major issues. Judicial activism short-circuits that process, to the detriment of our democratic institutions and habits.

Re: Judge Decided on Station Fire Plea Deal

There are at least four problems with Judge Francis Darigan's statement regarding the Derderian pleas in the Station Fire case that Marc posted on earlier this afternoon.

Two problems appear in the first two paragraphs of the 7-to-7 report on Judge Darigan's statement...

Superior Court Associate Justice Francis J. Darigan said this afternoon that he decided to accept a plea in The Station nightclub fire case to spare victims' families and the state the trauma of criminal trials.

Darigan also acknowledged that he approved the terms of the deal with club co-owners Michael and Jeffrey Derderian over the objection of the state Attorney General's Office.

1. The Judge says he "approved the terms of the deal". We know who was on one side of the deal -- the Derderian's lawyers. Who was on the other side? Was the judge negotiating independently, or did he take an intermediate offer being negotiated by the AG and decree it to be the final deal? There are problems in either scenario.

2. The Judge says he decided to accept the plea "to spare victims' families and the state the trauma of criminal trials". But a judge's job is to apply the law impartially. It is a prosecutor's job is to decide which cases to bring maximum resources to and which cases to dispose of quickly. Why is the Judge usurping prosecutorial discretion here?

The third and fourth problems aren't legal issues, but concern what appears to be a disturbing display of judicial arrogance...

He also criticized the Attorney General's Office for what he called leaking news of the agreement to the press yesterday, calling it unethical....

Darigan said he would like the media to focus less on the back-and-forth between the Attorney General's Office and the court and more on the merits of the plea agreement.

3. Courts have no business trying to hide their actions from the public, unless the rights of people not on trial may be infringed by revealing certain information in open court. So exactly on what basis is Judge Darigan asserting that there should be some sort secrecy regarding this plea deal?

4. And what gives any judge the right to tell the media what they should and shouldn't be reporting on?

Two Ballot-Question Cases to be Decided Today

Because the section of Rhode Island general election ballots containing referenda is supposed to be sent to the printer today, two ballot related court cases are expected to be decided today. The first case, argued in Federal court, centers on whether the no-bid, favor-one-company provision of this year's version of a Rhode Island casino amendment violates the Federal Constitution. Jim Baron summarizes the central legal issue in today's Pawtucket Times...

As John Killoy, lawyer for the tribe, explained, if the tribe is considered a racial or ethnic group, the proposed amendment would be subject to the "strict scrutiny" standard of its constitutionality, a very high bar to clear. If the tribe is deemed a political entity, then the matter will be decided on a "rational basis" standard - did the state have a rational basis for framing the proposed amendment as it did?

If the tribe is ruled to be a political entity, and not a racial or ethnic group, I hope the court tells people where they can go to make their application to join.

The other case, argued before the state Supreme Court, concerns the issue of the Governor's power to place non-binding questions on the statewide ballot. The legislature tried to strip that power away from the Governor this session. Governor Carcieri sued to prevent the law from being applied retroactively, i.e. from being applied to questions that had been submitted before the legislature acted. In a decision that surprised everyone, Superior Court Judge Stephen Fortunato ruled that the Governor of Rhode Island has an inherent power to place non-binding questions on the statewide ballot, even in the absence of any specific authorizing legislation. Here's the counter-argument from the General Assembly's lawyer, as quoted by Elizabeth Gudrais in the Projo?

"Rhode Island operates by representative democracy, not participatory democracy," John A. "Terry" MacFadyen wrote in the House and Senate brief.

MacFadyen quoted James Madison, saying that when Rhode Island residents approved the state Constitution they chose a republican form of government "premised upon the fact that the people cannot speak in mass, and the right to choose a representative is every citizens' portion of sovereign power."

In other words, if the government doesn't give its express permission for something and lay down a procedure, then that something is forbidden! I don't think Mr. MacFadyen gets the principle of limited government. Or maybe his clients just pay him to eviscerate it. Leave it to a lawyer for the General Assembly to make Judge Fortunato's unusually expansive view of inherent powers seem reasonable by comparison.

No One is Above the Law, Except for Employees of the Rhode Island Court System

Over at the RI Law Journal, Jon Pincince points out something odd about the reacton to the Projo�s inquiries about $42 million in assessed but unpaid fines. The Projo asked for a list, mandated by law, of who hadn't paid the fines they owe�

The Journal has been asking the courts since March how much in fines from the last six years is outstanding and who hasn't paid. Court officials initially rejected the request, saying the law doesn't require the release of such information.

Actually, the law does require the information to be released. Mr. Pincince points us to the relevant section of Rhode Island law�

Notwithstanding any other provision of law, the director of the finance section on a quarterly basis shall prepare a list of the persons who owe court imposed or court related fees, fines, court costs, assessments, charges and/or any other monetary obligations which have been unpaid for a period in excess of ninety (90) days from the date that any such amounts were due�

Any such list prepared by the director of finance shall be available to the public for inspection and shall be published by the director of the finance on the website that is maintained by the courts. Provided, however, that any such list prepared by the director shall not include any individuals social security number.

However, according to the Projo, the courts have not been complying�

State law currently requires the judiciary to produce a list four times a year of all the people who have outstanding fines in the Superior and District courts and the Traffic Tribunal. The list was supposed to include names, addresses and the amounts owed. The information was also required to be posted on a court Web site. The courts have never generated such a list or posted it online.

Rhode Island Court Administrator Joseph Baxter told the Projo that the disclosure law was not being obeyed because �the courts� thought it was unconstitutional. However, that opinion has never been rendered in any case heard in the RI Court system. Mr. Pincince asks at what point being employee of the court system came to mean that you get to pick and choose which laws you will obey�

Can employees of the Rhode Island judiciary disregard a statute that mandates certain action when �the courts� believe the statute is unconstitutional? While this issue has been discussed in terms of whether �the courts� have complied with the law and whether �the courts� believe the law is constitutional, the statute speaks in terms of requiring the �director of the finance section� to prepare the list of persons who owe fines and to publish that list on a web site maintained by the courts. It seems to me that the director of the finance section would have two options: (1) comply with the law, or (2) challenge the law in the courts. Instead, the director of finance, or someone higher up in the judiciary�s chain of command, made an unofficial, out-of-court determination that the law is unconstitutional and need not be complied with.

The courts aren�t the only branch that has been acting weirdly here. Members of the House Judiciary Committee also initially tried to protect the identities of people who haven�t paid their fines, though the move ultimately failed. Again, from the Projo story�

The original version of the bill voted on yesterday, sponsored by Judiciary Committee Chairman Donald J. Lally Jr., D-Wakefield, and filed May 18, would have eliminated disclosure requirements or limited them to Traffic Tribunal fines.

The revised version, which the committee passed, put them back in, requiring the courts to prepare a quarterly list of people who have owed fines for more than 90 days, are not part of a court-ordered payment plan and are not appealing the fines.

Given that the reporting of fines is a fairly innocuous requirement, it�s hard not to wonder about who Mr. Baxter and the sponsors of the original legislation that would have ended the disclosure requirement are trying to protect.

Thoughts on the Law & Social Order

As a child, did you ever make up a new game and spend time trying to define the rules of that game? If so, did you ever end up fighting with your friends because, after you started playing the game, something unplanned happened and conflict broke out? After the conflict broke out, did you find that you could work it out with certain friends - without having to write down an entirely new set of rules? That your ability to work things out informally was only possible if you shared common values with the friends - and the others likely ceased being your friends after that? In retrospect, did you ever look back and realize that there was no way to anticipate every possible outcome, to write out explicit rules to cover all outcomes?

Okay, maybe not. Which is probably why you didn't go to law school later in life.

But, it is a relevant analogy as we extend the concept to a broader societal level. Unfortunately, we have devolved to the point where we frequently turn to government every time there is a problem and request new legislation to "fix" it. Never mind that the new law may be in conflict with existing laws. Never mind that the laws are frequently written with vague language and then turned over to faceless, nameless, unelected and unaccountable bureaucrats for rule-making from afar. Never mind that rule-making from afar only allows rigid rules that must apply uniformly to everyone and offer no subtlety of application that can occur at the local level where there is personal knowledge of what is needed and what will work. Never mind that societal changes may obviate the need for the legislation but the regulations will continue on regardless. Never mind that trying to legislate every issue increasingly eliminates the freedom to apply judgment to different situations, no two of which will be identical.

In that context, two recent comments on The Corner by Jonah Goldberg and Andy McCarthy offered a thoughtful perspective on how increasingly explicit laws adversely impact our social order.

Jonah Goldberg makes the first comments:

My understanding of the Hayekian social order is that life is complex but that the public, written, law should be clear. Bright lines are necessary to illuminate clear principles. It is in the shadows of these bright lines that hidden law operates. We have clear laws - and ethics - against doctors killing patients, but most of us understand that in the outer-reaches of the real world, there will be situations where the rules should be bent or even broken. But we don't then change the law to make the rare case the norm. It may sometimes be morally necessary to look the other way when a cop smacks someone, a desperate man steals something, a doctor kills a hopelessly suffering patient, but we don't rescind the laws against police brutality, theft, or - until recently - euthanasia, in response.

Andy McCarthy then offers some profound observations:

The awful thing about the hyper-lawyered society we are becoming is that there is less and less hidden law. The hidden law is where judgment, discretion and common sense reign. It's like the referee who you only notice when there's a bad call. We only think about it when there is some blunder or atrocity, but these are