— Separation of Powers —

September 11, 2012

Things We Read Today, 8

Justin Katz

Today: September 11, global change, evolution, economics, 17th amendment, gold standard, and a boughten electorate... all to a purpose.

February 10, 2012

Robert Flanders' Answers to Questions on Receivership

Carroll Andrew Morse

Central Falls Receiver Robert Flanders certainly cannot be faulted for not responding to inquiries in a timely fashion...

Q1: You have been quoted on the Buddy Cianci radio show as saying that some sitting Rhode Island Mayors should approach the state government and ask to become the receivers for their cities. Is this indeed a course of action that you advocate?

Central Falls Receiver Robert Flanders: It depends on a number of factors, including whether the State (i.e., the Governor's office and legislative leadership) would be likely to have some measure of confidence that that particular sitting mayor would be able to and willing to take the sometimes politically unpalatable actions that might be needed to restore the City to fiscal solvency and whether the mayor in question has the credibility, capacity, political will, and respect needed to accomplish such a goal and to work cooperatively with the Director of Revenue, the Governor, and other stakeholders to do so.

Q2: Conflicting accounts of the rescinding of the recent parking ban in Central Falls have been presented to the public. Most recently, W. Zachary Malinowski of the Providence Journal attributed the rescinding of the ban to the Governor of Rhode Island and not the Office of the Central Falls receiver (February 4 Providence Journal, "The next day, Governor Chafee, reacting to a public outcry, suspended the parking ban"). Could you clarify the process by which the parking ban was rescinded?

RF: The Receiver suspended enforcement of the parking ban, after obtaining input from the Governor's office, local elected officials, and a number of Central Falls residents.

Q3: In Federalist 47, Montesquieu was quoted by James Madison: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates". Do you believe it is a wise course of action to tell the people of Central Falls, of Rhode Island, of the United States and of the world that fiscal crises justify restructuring of government in a way that removes what some of the great thinkers of the Western political tradition believe to be an essential safeguard to liberty?

RF: To my knowledge, no one associated with the Receivership is telling people that or saying that, nor have they said that. Rather, what state policy makers decided when they enacted the Fiscal Stability Act (providing for the appointment of various levels of state fiscal oversight when a city or town experiences extreme financial difficulty) is that fiscal emergencies call for extraordinary temporary measures to correct a problem that threatens to cause a City or Town to default on its obligations and/or to run out of cash. When the emergency and crisis ends, then the temporary and extraordinary measures used to deal with that situation also end. The Rhode Island Supreme Court recently upheld the constitutionality of this statute in the teeth of arguments such as those that your question adopts, expressly rejecting them as legally unsound. A corollary to the quote in your question is that there can be no liberty when the executive and legislative branches of a state are powerless to prevent a city or town (and therefore the residents who depend on its viability) from experiencing utter financial ruin.

Receivership as a Way for Mayors to Grab Total Control of City Government?

Carroll Andrew Morse

Yesterday was the second consecutive day on which Buddy Cianci, during his WPRO (630AM) radio show, referenced an earlier interview with Central Falls Receiver Robert Flanders, where Receiver Flanders had apparently suggested that Rhode Island Mayors could deal with their fiscal problems by approaching the state and having themselves appointed receivers of their own communities. I'd be very surprised if state legislators had this kind of process in mind when they passed the "fiscal stabilization" law in 2010.

(Under the fiscal stabilization law, the state can move to immediately suspend municipal democracy in a community, without first passing through an "overseer" or a "budget commission" process first)...

In the event the director of revenue determines, in consultation with the auditor general, that a city or town is facing a fiscal emergency and that circumstances do not allow for appointment of a fiscal overseer or a budget commission prior to the appointment of a receiver, the director of revenue may appoint a receiver without having first appointed a fiscal overseer or a budget commission.
I didn't hear the original interview and haven't been able to find it on the WPRO website, so based on Mayor Cianci's account, I've put the following set of questions via email to Central Falls Receiver Flanders' office:

1. You have been quoted on the Buddy Cianci radio show as having said that some sitting Rhode Island Mayors should approach the state government and ask to become the receivers for their cities. Is this indeed a course of action that you advocate?

2. Conflicting accounts of the rescinding of the recent parking ban in Central Falls have been presented to the public. Most recently, W. Zachary Malinowski of the Providence Journal attributed the rescinding of the ban to the Governor of Rhode Island and not the Office of the Central Falls receiver (February 4 Providence Journal, "The next day, Governor Chafee, reacting to a public outcry, suspended the parking ban"). Could you clarify the process by which the parking ban was rescinded?

3. In Federalist 47, Montesquieu was quoted by James Madison: "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates". Do you believe it is a wise course of action to tell the people of Central Falls, of Rhode Island, of the United States and of the world that fiscal crises justify restructuring of government in a way that removes what some of the great thinkers of the Western political tradition believe to be an essential safeguard to liberty?

September 19, 2011

In-State Tuition For Illegal Aliens: When Did the Board of Regents Acquire the Constitutional Ability To Appropriate?

Monique Chartier

Patrick highlights the recommendation by a Board of Regents panel that the state offer to illegal aliens the ability to attend state colleges at the much lower tuition rate paid by in-state residents. The ProJo 7 to 7 News Blog reports that the Board of Regents Board of Governors for Higher Education is expected to adopt the recommendation at its September 26 meeting.

That's interesting because, as I understand, the Rhode Island Constitution confers the power of taxing and spending solely on the legislature.

But in order for in-state tuition to be broadened (to any additional group), the state would have to pick up the shortfall between in-state tution and the actual cost to educate the student. For the University of Rhode Island, that shortfall is $12,500+ per student.

Accordingly, I will be calling the offices of Speaker Fox and Governor Chafee tomorrow to ask each of them the following:

1.) How do they feel about the Board of Regents' Board of Governors for Higher Education's apparent intention to add hundreds of thousands of dollars to the state's budget shortfall and

2.) More importantly, how do they feel about the Board of Regents Board of Governors for Higher Education doing so by usurping the power of the legislative branch.

July 6, 2011

Gimme that Old-Tyme Constitutionalism!

Carroll Andrew Morse

The passage of the state budget, followed by a flurry of bills passed and not passed in the last week of the 2011 Rhode Island General Assembly session, were clear demonstrations of the value and the wisdom of two foundational principles of American constitutional governance.

1. The Division of Powers, more commonly referred to as the "Separation of Powers": In American-style constitutional systems, the Governor and the legislature both have a role in the making of laws, and it was this division of the lawmaking power that prevented an executive elected only by a plurality from imposing a tax policy that was unpopular with the majority. The legislature did their job of representing the 64% of the population who didn't vote for the current Governor or his program, accurately reflecting the fact that the Governor's high-profile taxation proposal was not popular or desired by the citizens of Rhode Island.

2. Bicameralism, Baby! The structure of two legislative chambers, neither of which owes its power to the other and both comprised of members who are electorally accountable to the people, was key in slowing down or stopping some of the legislation (the I-195 bill, binding arbitration) that otherwise would likely have been passed into law without appropriate time for public deliberation. Think how much different the outcome of the legislative session might have looked, if one individual like Majority Leader Dominick Ruggerio could extend the power he holds over the Senate to the entire legislature. It is the bicameral structure of the legislature that prevents this from easily occurring.

There are often feelings that "old" structures of governance have only limited application in the modern world, but sometimes the structures of a venerable and tested system are exactly what is required to keep government responsive to the people.

Federalist 51 hits both the principles of the division of powers and bicameralism, for anyone interested in further thoughts on the subject.

July 4, 2011

All in the Judiciary's Hands

Justin Katz

The precedent that this ruling out of Michigan, related to a constitutionally created ban on affirmative action, sets is astonishing:

The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment's Equal Protection Clause.

The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.

It sounds as if "equal protection" is being expanded to mean that minorities must have as much chance of changing a law as majorities. That remains the case, of course, inasmuch as minorities need only convince a majority to side with them, but this is something more targeted — like an affirmative action for democracy.

And if the ruling stands, think of the role that the judiciary will then play in our system. If the people's representatives pass a law that a judicial elite doesn't like, judges will strike it down as unconstitutional. If the people write it into the constitution, judges will strike it down as too difficult to change by democratic or judicial means.

February 6, 2010

The Window and the House of Cards

Justin Katz

Apart from the complications of Rhode Island law, as a matter of political theory, this strikes me as a reasonable argument:

The lawsuit [by the city of Woonsocket], which also names State Controller Marc A. Leonetti and General Treasurer Frank T. Caprio as defendants, said the money [that the state was supposed to give towns for automobile excise taxes] was appropriated by a legislative act of the General Assembly and that means Carcieri, Leonetti and Caprio have "a clear legal duty" to pay it.

"He may submit the budget, but he does not have the authority under the state Constitution or state law unilaterally to change the General Assembly's budget after it has passed," [Woonsocket Mayor Leo] Fontaine said.

I've long been including, among my complaints against Governor Carcieri, that he is far too passive about describing the ownership of the budget. Even though we're into the second month of the calendar year — and the legislative session — legislators have yet to act on the supplemental budget. So, the governor should pay out whatever money is due, to whomever it's due, until the money runs out and then just shut down. "I'm bound by law to follow the General Assembly's budgeting," he could say, "and they've chosen to spend the account dry rather than take corrective action." It's their responsibility.

WPRI's recent poll data gives reason to hope that the public is coming around to an understanding of the political dynamics, in this state. Overall, 53% of Rhode Islanders blame the GA for the budget crisis, with another 25% splitting blame between the legislature and the executive. Perhaps based on relative degrees of attention, the General Assembly fares worse as the age of the respondent goes up. Moreover, 61% of respondents want cuts in spending and services and not in taxes.

If increasing understanding is to translate into the appropriate electoral actions — rather than merely contributing to the general grumble — the governor must make the necessary political decisions crystal clear. He should declare that the General Assembly's failure to act has been an open window next to the budgetary house of cards and then get out of the way of the inevitable.

January 4, 2010

Why the Proposed Teachers' Health Insurance Board is an Unconstitutional Violation of Separation of Powers

Carroll Andrew Morse

A non-trivial question concerning the new teachers' health insurance board proposed by the legislature but opposed by the Governor is which branch of government it would belong to.

It's obviously not the judiciary.

And as currently structured, the board cannot be an offshoot of the legislature. A legislature has no power to delegate its statewide lawmaking authority to a group of non-legislators operating outside of the normal lawmaking process -- unless it is through the rule-making authority of an executive branch agency.

That leaves the executive branch, which makes sense, as this new board is basically a regulatory agency charged with overseeing the actions of school committees in certain aspects of teacher contract negotiations. However, the legislature does not have the power to designate anyone it chooses as makers of administrative rules that ultimately carry the force of law; according to the principle of separation of powers, this power can only be delegated to a constitutionally recognized executive.

This aspect of separation of powers, fundamental to the structures of our state and Federal governments, is spelled out directly in Article IX Section 5 of the Rhode Island Constitution…

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.
Rhode Island legislators have no basis for ignoring Article IX and replacing the Governor with labor unions or other organizations in making appointments to state boards (no matter how much they might like to) unless they're claiming the authority to create new branches of government without needing a constitutional amendment.

August 20, 2009

Re-Re-arranging Massachusetts' Succession Law

Monique Chartier

The senior senator from Massachusetts has written a letter urging the Mass state legislature to change the method by which a US senate seat would be filled in the event of a vacancy.

Change it ... back to the way it was the first time he urged them to change it five years ago. John Fund, writing for the Wall Street Journal. (h/t Howie Carr)

Until 2004, Massachusetts had a law allowing the governor to appoint a Senator to hold a vacant seat until the next regular election. In that year, faced with the possibility Senator John Kerry succeeding in his bid for the presidency, the Democratic legislature balked at the idea of an appointment being made to fill his seat by then-GOP Governor Mitt Romney. When the legislature hesitated to pass such a blatantly self-serving bill, Senator Kennedy made two direct appeals to the state senate's president to revive the stalled bill, including a phone call to his home over a weekend.

It worked. In 2004, the Democrat-controlled legislature

passed a law creating the special election process and taking away the governor's right to make a temporary appointment.
See, 'cause it's so important that the people and not the Governor fill a vacant senate seat.

... er, unless the Governor is a Democrat and we've got unpopular legislation pending in Congress. In that case, Senator Kennedy ...?

it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election.

December 18, 2008

RI Supreme Court: Governor Controls CMRC

Marc Comtois

In a major victory for separation of powers proponents, the Rhode Island Supreme Court has ruled that the Governor, not the legislature, has ultimate control over the Coastal Management Resources Council. From 7to7:

In what may finally settle a longstanding controversy, the Rhode Island Supreme Court today came down solidly in favor of giving the governor sole control of the powerful state Coastal Resources Management Council and against allowing any further legislative influence over the council.

While most other state agencies have been revamped in line with the Separation of Powers referendum approved by voters several years ago, leaders of the House of Representatives have insisted the Rhode Island Constitution continued to give the legislature power to regulate the coastline, and that meant the power to appoint members to the CRMC.

The House basically asked the court four questions:

1. Would a bill allowing legislators to resume sitting on the CRMC violate the Separation of Powers Amendment?

The court said yes.

2. Would the bill allow the House speaker to appoint public members to CRMC?

The court said no.

3. Is the Separation of Powers amendment in effect, or does it need legislative approval.

The court said yes, the amendment is in effect. {ie; it's "self executing"}

4. Is CRMC a legislative function?

The court said no.

Full decision can be found here (PDF). One wonders if this is actually, truly, the end of this issue. But it is Rhode Island...

August 13, 2007

Understanding Your Misunderstood Unitary Executive

Carroll Andrew Morse

Over at the University of Chicago's Law School faculty blog, respected liberal legal scholar (and U of C faculty member) Cass Sunstein has posted an informative item on the meaning of the "unitary executive" (h/t Instapundit)...

Those who believe in a unitary executive need not think that the president can defy the will of Congress, or torture people, or make war on his own. The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law....

In American constitutional law, the idea of a unitary executive is nothing new. It goes all the way back to the founding. The Constitution does not create a "plural" executive; Article II, section 1 vests executive power in one person, the president of the United States. The decision to create a unitary rather than plural executive was debated and decided. So in a way, everyone agrees that ours is a unitary executive. (Franklin Delano Roosevelt insisted on that point, and was especially dismayed when the Supreme Court ruled otherwise in its decision holding that the heads of the FTC are not the president's at-will employees)....

The most important point is that the claim for the unitary executive is not a general claim about the President's power to act on his own or to contradict the will of Congress. You can believe in a strongly unitary executive branch while also believing that the President cannot make war, or torture people, or engage in foreign surveillance without congressional authorization. You can also believe that the president can do a lot on his own, or a lot in violation of Congress' will, while also accepting the view that Congress can create independent agencies and independent prosecutors. In short, the debate over the unitary executive is an important but narrow one, and it is a small, distinct subpart of the general debate over presidential power.

A concrete example of a plural executive system that you might be familiar with would be the state government of Rhode Island, where four different elected officers (the Governor, the Attorney General, the Secretary of State, and the General Treasurer) are charged by the state Constitution with enforcing the laws made by the state legislature.

August 4, 2006

The Flawed ABA Report on Presidential Signing Statements

Carroll Andrew Morse

Dont believe the hype that says that the American Bar Association's recent report on the use of Presidential signing statements represents a universal consensus within the legal profession. Thursdays Boston Globe ran an op-ed by Duke Law Professor Curtis Bradley and University of Chicago Law Professor Eric Posner that asks two fundamental questions that the ABA did not address -- is it possible that Congress or the courts might do something that is unconstitutional and, if it is possible, must the President comply with unconstitutional acts...

Last week, an American Bar Association Task Force issued a head-scratching report, which concluded that ``the issuance of presidential signing statements that claim the authority or state the intention to disregard or decline to enforce all or part of a law the president has signed" is ``contrary to the rule of law and our constitutional system of separation of powers." That this conclusion is false is well known to constitutional law scholars and, one assumes, to the current and former law school deans on the task force.

The task force argued, in just two pages of the 34-page report, that issuing signing statements violates the separation of powers because the president has a legal duty to enforce unconstitutional laws.

The task force disapproved of nonenforcement of unconstitutional laws without providing a clear argument or drawing out the implications of its position, which is that not just Bush but many presidents have violated ``the rule of law" and ``the principle of separation of powers." If this is the task force's view, its focus on Bush is unjustified; what it is arguing for is a major adjustment of constitutional understandings

June 11, 2005

Judiciary Under On the Seige

Justin Katz

One can just about picture the commercial that RI Supreme Court Chief Justice Frank Williams would release to correspond with his recent presentation to the RI Bar Association, "Killing Justice: The Judiciary Under Siege." It would begin in black and white, with dark footage and creepy music:

"Political pressure and agenda-driven criticism also fray the fabric of judicial independence ... the current trend is especially worrisome because the sentiments are being voiced not just by a powerless fringe but by those in positions of power."

The sun breaks through the clouds, bringing a shift to color and to cheerful music:

"Here in Rhode Island, we are lucky enough to have a General Assembly which understands, respects and supports judicial independence and our separation of powers."*

But a darkly ambiguous chord plays and shadows appear:

"Judicial independence faces yet another threat. This once comes quietly and from the rear flank. Simply put -- nationally and locally -- judicial salaries do not reflect the respect due the office. Judicial independence is endangered."

Luckily, as some readers may recall, and as Projo writer Edward Fitzpatrick reminds us (and as would likely be left out of the commercial):

Last year, the General Assembly approved a budget article that prevented the governor from changing the judiciary's budget and gave Williams control over judicial salaries. This year, Williams proposed $1.57 million in pay raises for judges, magistrates and nonunion employees in the courts. Their salaries would increase by between 4 percent and 38 percent next year, and he's also seeking raises for 2007.

Mr. Williams admits that he does somehow manage to put food on the table with the $146,098 that the inadequately respectful tax payers give him (plus benefits, including a $7,305 longevity bonus). Surely, however, with proper promotion — perhaps meaning with prudent silence — the people of Rhode Island will agree that appropriate respect for judges is more important than their own ability to make ends meet while remaining in the state.

* Ostensibly, Williams isn't referring, here, to the General Assembly's interest in having a "separate power" through which to filter nepotistic hiring so as to diminish the impression of impropriety.

April 14, 2005

Rhode Island Politics & Taxation, Part XV

This posting continues a periodic series on Rhode Island politics and taxation, building on fourteen previous postings (I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV).

Sometimes certain news events do not need a lot of commentary because they speak for themselves. This posting on the latest developments in the implementation of Separation of Powers is about such a news event.

Continue reading "Rhode Island Politics & Taxation, Part XV"

March 28, 2005

All Powerful but only Some of the Time

Carroll Andrew Morse

Dailypundit has a list of causes of my dissatisfaction with the Republicans and George W. Bush. There is a bit of a consistency problem with the last two (conveniently juxtaposed) items

10. The recently revealed first instincts of Bush's FEC to impose draconian measures per the CFR (campaign finance reform) bill Bush signed after he said he did not support it. Bush's signing of that measure is, in my opinion, more than sufficient grounds for his impeachment.
11. Of course, the massive Republican hypocrisies of Schiavo.

Now, in the Schiavo case, proceduralists have been arguing that the other two branches of government may not take action to protect the rights of an individual once the judicial branch has made the decision that the rights-in-question (in this case, a right to life) are not important. Yet, in calling for impeachment, Dailypundit is requiring the President to defend individual rights, even if his view of those rights (in this case, the right to free speech) is broader than the judiciarys.

So why are judges decisions open to question in one case, but not the other?

February 7, 2005

RE: Airing the Lottery Commision's "Chaos"

Marc Comtois

As Justin wrote last week, none of us were really surprised that "independent" lawyer Joseph Tarantino sided with the Legislature on whether their members could legally stay on the Lotto Commission given that Separation of Powers had been passed. (He said "Yes"). Now, it has been reported that Tarantino managed to profit financially, too.

The Lottery Commission's recent legal opinion from lawyer John A. Tarantino suggesting it was outside the purview of a separation-of-powers constitutional amendment carried a $16,375 price tag.

That's more than $1,000 a page for the 14-page opinion.

Tarantino, a lawyer with Adler Pollock & Sheehan, is also defending Lincoln Park -- the greatest provider of lottery revenue -- in its federal corruption trial.

The Lottery Commission, at its Nov. 22 meeting, had voted 7-2 to hire Tarantino and John A. "Terry" MacFadyen III, of MacFadyen, Gescheidt & O'Brien, to give separate opinions regarding commission and separation of powers.

The motion, which came at the suggestion of the commission chairman, Rep. Robert E. Flaherty, D-Warwick, allocated a total of $50,000 for the two opinions, according to commission lawyer Robert M. Silva.

MacFadyen is not moving forward his opinion, Silva said, because of the "changing landscape" around separation of powers, specifically House Speaker William J. Murphy's decision not to seek an advisory opinion from the Supreme Court on whether lawmakers can stay on the commission.

But just for the record: C. Leonard O'Brien of MacFadyen, Gescheidt & O'Brien is the defense lawyer for another of the defendants in the Lincoln Park bribery-conspiracy case: Nigel Potter, former chief executive of Lincoln Park's British parent company.

That Tarantino was paid for his report isn't surprising, but the revelation of the incestuous relationships between the Lotto Commision, it's advisors and the Lincoln Park fiasco is indeed cause for an alarmed, if not surprised, eyebrow raise.

February 4, 2005

Airing the Lottery Commission's "Chaos"

Justin Katz

The Providence Journal is urging "Governor Carcieri, House Speaker William Murphy and Senate President Joseph Montalbano to sit down together and work out some of the kinks in the implementation of separation of powers." While kinks should surely be worked out as quickly as possible, I'd prefer that these three Rhode Island leaders sit down before an audience for the discussion.

It's not that I distrust the governor to stand his ground, but the ordeal — especially when it comes to the $1.5-billion-a-year Lottery Commission — stinks so badly that all handling thereof ought to be done in the open air. The editorial uses the words "chaos" and "confusion," but as is often the case, putting all of the various pieces on the table, those qualities appear sown, not inherent.

At some point, the Lottery Commission hired lawyer John Tarantino to investigate whether the separation of powers amendment affected its composition. Tarantino, readers may recall, wrote a harsh commentary piece for the Projo attacking Ed Achorn for his "dangerous" rants about government corruption, and promised to offer his "honest opinion" about the "complex issue" that he was studying. Well, surprise, surprise, he's found as some folks, Ed Achorn perhaps among them, might have predicted:

Tarantino, of Adler Pollock & Sheehan, said the state Constitution grants the General Assembly "absolute power with respect to all matters pertaining to gambling. . ." He said separation of powers does not "appear explicitly or implicitly to undermine this precedent."

When I first read that Tarantino had been hired by the Commission itself, I thought the fact had a ring of independence. However, the same article reporting the fruits of his analysis explains that heretofore, the Commission consisted of three senators, three representatives, and three gubernatorial appointees. In other words, the question that the nine members charged the lawyer with answering was whether six of them could retain their positions.

In the meantime, House Speaker William Murphy and Senate President Joseph Montalbano raised questions "about the effect of the separation-of-powers amendment on the Lottery Commission and the Coastal Resources Management Council" (in Tarantino's words). As Ed Achorn says, the "political firestorm grew so hot that Speaker Murphy wisely backed off and pledged to respect the will of the people."

Even so, the three house representatives on the Lottery Commission insisted on staying put until Governor Carcieri's appointees are ready to take their place. And the Senate Judicary Committee has produced a perhaps prohibitively arduous questionnaire requiring those nominees — who are unpaid volunteers — to divulge full maps of their personal and financial lives since they turned eighteen.

The picture that emerges is of a legislature striving to keep its grip on the Lottery Commission for as long as possible. One can only imagine the nefarious intentions that the governor scuttled by maneuvering to keep the Commission attendance short of the five members needed to do any work at its first meeting of the year. But just to be safe, perhaps all negotiations and meetings ought to be pursued in full public view.

February 3, 2005

Letting the Executive Be Executive

Justin Katz

As a partial follow up to my previous post about the interwoven connections among the (let's call it) influencing class in Rhode Island, I note that the state's judiciary has permitted the governor to switch healthcare providers:

The state Supreme Court ruled today that the state can award the contract for its employees' health insurance to UnitedHealthcare of New England, over the objections of competitor Blue Cross & Blue Shield.

The high court said the state did not manage the bidding process as well as it could have, but still conducted it in good faith.

"We recognize the unfortunate fact that the state's officials did not handle the task of awarding the state's health care contract with the level of expertise that would be desirable," the court said in its ruling. "Any mistakes made during the process simply do not rise to the level of palpable abuse of discretion." ...

The United Contract will save Rhode Island taxpayers $25 million over the next three years, Carcieri said, and also enable Rhode Island cities and towns to save by contracting with United for the same administrative rate as the state.

While I'm glad that the executive branch secured the approval of the judiciary, in this case, trusting judges with the gauging of "abuse of discretion" in state business matters makes me a bit uneasy. Perhaps I'd feel differently if Superior Court Judge Netti Vogel could conceivably face any sort of adverse consequences from being overruled — especially since the executive branch has lost its say in the judiciary's budget.

January 18, 2005

State Senate Offspring Judicial Apprenticeship Program Continues

Marc Comtois
Thanks to the weekly Political Scene column in the Providence Journal, we have learned that more legislative kin are being employed in our judiciary.
A relative choice

Another member of the family of longtime state Sen. John F. McBurney has landed a job in the state courts.

The senator's nephew, Gregory M. McBurney, was given the $28,147 job that his son, John F. McBurney IV , had held, as an administrative aide in the jury commissioner's office, until his promotion in November to a higher-paying spot -- which had been held, until her promotion, by the daughter of former Senators Paul and Sandra Hanaway.

Got it?

Court spokeswoman Dyana Koelsch said Gregory McBurney, 23, was deemed the "most qualified" of 37 applicants by jury commissioner Eugene McMahon , because he had a bachelor's degree in justice studies from Roger Williams University, and "was in the top 5 percent of his class, [the] National Honor Society and on the dean's list. He also is highly experienced with computers and Windows applications."

But Koelsch made a point of distancing Supreme Court Chief Justice Frank J. Williams from this and other recent court hires with close Senate connections.

In an e-mail to Political Scene, she wrote: "Please note that hires in lower courts DO NOT fall under the operational control of the chief justice of the Supreme Court, but statutorily are the sole function of the administration of the individual court.

Senator McBurney could not be reached for comment.

Gregory McBurney, who was identified by Koelsch as a nephew of the longtime Pawtucket senator, began his new job last week.
Doesn't it seem that Ms. Koelsch has had to do a lot of explaining recently? Just last month questions concerning a similar spate of judicial jobs being filled by the relatives of former or current State Senators, including Senate Majority Leader Montalbano's son, also prompted an explanation from Koelsch and others. Perhaps if the state courts, at all levels, simply stopped hiring the relatives of State Senators, regardless of their qualifications, such explanations would not be required. Given the reported pool of applicants for these jobs, 25 for a data entry position filled by Montalbano's son and 37 for the position filled by McBurney, I think it safe to say that these sons of senators probably didn't hold qualifications so unique that not hiring them would have been some sort of employment injustice. Unfair? Perhaps. But chalk it up as the price of being the kid of someone who is "serving" the citizens of Rhode Island.

Now, I must emphasize that highlighting these hirings is neither intended to besmirch the name of any involved nor to indict without evidence. However, I can accuse those involved of not heeding the explicit words of our State Constitution and thus contributing to the perception that Rhode Island is a corrupt state. The Rhode Island Constitution, Article 3, Section 7, states:
Ethical conduct. -- The people of the state of Rhode Island believe that public officials and employees must adhere to the highest standards of ethical conduct, respect the public trust and the rights of all persons, be open, accountable and responsive, avoid the appearance of impropriety and not use their position for private gain or advantage. Such persons shall hold their positions during good behavior. [emphasis mine]
It was George Washington who believed that men followed their own interests above all else, that it was "interest, the only bonding cement," that dictated men's actions. Rightly or wrongly, it is in a Rhode Islanders nature to cast a cynical eye at politicians and their actions. Thus, we must ask, in whose interest is it to have relatives of legislators hired by the state judiciary?

January 13, 2005

Wake Up, Speaker Murphy!

This posting builds on a string of other postings by all of us here at Anchor Rising.

Ed Achorn of the Providence Journal is back with yet another editorial about how Rhode Island House Speaker William Murphy appears committed to thwarting the will of the people, as expressed in our approval on November 2 of the separation of powers constitutional amendment.

Mr. Achorn writes:

Mr. Murphy holds the most powerful political post in Rhode Island. He managed to cling to that power last week after a bitter challenge by Republicans and dissident Democrats.

No one knows what promises Mr. Murphy had to make to secure the 45 votes he obtained in that fight, to his unimpressive challenger's 30. But, during the fight, he did something shocking, even by the standards of Rhode Island politics. He signaled his intention to essentially nullify a constitutional reform known as separation of powers, which had been duly passed on Nov. 2, after years of debate and struggle, by more than 78 percent of the state's voters.

These voters trusted in the power of the ballot to redress their grievances. Mr. Murphy betrayed that trust. He announced that the Rhode Island Constitution -- no matter what the voters say -- still gives the General Assembly the power to operate state-sanctioned gambling, through control of the Lottery Commission, and exert other executive functions.

Such a contention seems, to me, to stretch law, common sense, and the English language into unrecognizable shapes. The voters, after all, officially amended the state constitution to read: "No senator or representative shall, during the time for which he or she was elected, be appointed to any state office, board, commission or other state or quasi-public entity exercising executive power under the laws of this state. . . ." That would seem to offer no wiggle room for legislators to run the executive functions of the Lottery Commission or other boards. (In no other state is there even one legislator allowed to run the lottery that way.)

Our Declaration of Independence clearly and eloquently states that "governments are instituted among men, deriving their just powers from the consent of the governed." We, the people of Rhode Island, gave our consent on November 2 to the separation of powers amendment. Any power that William Murphy has as House Speaker is also derived from our consent.

However, another posting contains a word of caution from Roger Pilon of the Cato Institute, who said:

In the end, however, no constitution can be self-enforcing. Government officials must respect their oaths to uphold the Constitution; and we the people must be vigilant in seeing that they do.

Speaker Murphy: We, the citizens of Rhode Island, have already spoken and we demand that you drop your proposed actions. Your actions violate the separation of powers amendment and they violate fundamental principles of American freedom dating back to our country's founding.

Wake up, Speaker Murphy! The old days of corrupt Rhode Island politics are over. The old days of showing a callous disregard for the will of the people of Rhode Island are over. Show respect for your oath of office and for the rule of law.

January 10, 2005

Separation Anxiety

Justin Katz

The Providence Journal editorial page gets curiouser and curiouser:

Of course, there will never be perfect separation of powers, all human institutions having varying levels of permeability between them. Still, the separation of powers between Rhode Island's judiciary and the two other government branches has worked pretty well. ... most politicians, and judges, are well-meaning and honest. They seek the esteem of the public that comes from honorable service. Indeed, the desire for public approval is a major reason why many get into the relentless privacy-robbing of politics and government in the first place.

Corruption, personal problems and political pressures sometimes come into play -- humans aren't robots -- but all in all, the system works well for the citizenry of Rhode Island. And it promises to continue to do so, regardless of procedural changes involving budgets, and the occasional foibles of politicians and judges.

I haven't yet become sufficiently familiar with the Projo's writers to be able to identify the authors of specific editorials, but there are certainly significant differences of opinion and style. I wouldn't presume (honestly!) that the paper feels the need to respond to Anchor Rising (i.e., that this editorial is in part a response to a previous post of mine). Still, I have to wonder:

The news media obtain and publicize more information about wrongdoing; the Internet acts as both a lively transmitter of government information and a venue for vivid commentary; and squads of good-government groups keep politicians, other government officials, and the rest of us on our toes.

On the substance, the editorial could easily be a response to thoughts expressed here — and, I've no doubt, expressed by many people throughout the state. In the interest of continuing the exchange of vivid commentary, the following line of thought begs further reply:

Back to the subject of judiciaries: They must be as independent as possible. In our system of separation of powers, you don't want judges captive of either the executive or the legislative branch, lest the rendering of justice be perverted. ...

Most important in this discussion, however, is that legislatures -- at both the state and the federal level -- are the constitutionally designated source of appropriations, for the judiciary and all other parts of government. ... Indeed, the majority of states keep the governor's office completely out of the annual process that creates judicial budgets.

Thus, that the Rhode Island General Assembly last year tacked on to the state budget a proviso to prevent the governor from amending the judiciary's annual budget request seems more an embrace of separation of powers than a rejection of it.

As true as such points may be in general theory, adding the Rhode Island context to the picture raises two problems. The first, more direct, problem is that — unless I've dramatically misunderstood the background — it doesn't convey the appropriate impression to say that the tacked-on proviso "prevented" the governor's taking such action. It's a power Rhode Island governors have had; "prevent" makes it sound as if the potential to amend represented a new, aggressive strategy on the part of the executive that the legislature moved to preempt.

That shift in emphasis leads to the second, broader, problem: odd as it may seem, Rhode Island's governmental difficulty lies largely with its legislature. Under normal circumstances, I'm inclined to err on the side of granting that branch more power than the others, considering that it is a deliberative body of elected representatives. However, in our political landscape, which is so skewed as to leave legislators without challengers for multiple decades and which is dominated by special interest groups (especially unions), that benefit has proven of limited value.

To step back toward general theory, when the government-reform movement involves elevating the powers of the executive to counter a corrupt legislature, the legislature's move to take a budgetary component of balance of power from the executive and its interest in leveraging legalism to maintain imbalance hardly seem to indicate an embrace of that reform.

January 7, 2005

RE: A Law Degree of Separation

Marc Comtois
In addition to the fine points brought up by Justin, I would also add that Mr. Tarantino attacked Achorn for "inuendo" and seeking to "inflame, outrage and slander." Tarantino wrote that, "Mr. Achorn rants against abuses in government, whether they be actual, perceived or imagined. I prefer to deal with real problems in a productive and reasoned way, rather than through a confrontational, take-no-prisoners style." Tarantino particularly complained that Achorn "blasts away at the entire judicial system, implying that legal decisions could be made on a partisan or political basis, rather than on their merits." Finally, Tarantino impugned Achorn, writing, "The questions he raises are awful" and that Achorn "is wrong, though, in stating that decent persons would raise them. Decent persons base their decisions on fact, not innuendo." Throughout the piece, Tarantino placed himself, his methodology and the RI Court system on a lofty perch while he denigrated the writing and perspective of Mr. Achorn. It seemed that the core of Tarantino's argument against Achorn was that Tarantino thought Achorn was too eager to both find corruption and write of his suspicions concerning it. It is apparently lost on Tarantino why any reasonable Rhode Island citizen would applaud Achorn's efforts. According to the Rhode Island Code of Ethics
Appearance of Impropriety

Both the Rhode Island Constitution and the Code of Ethics state that public officials and employees should avoid the appearance of impropriety. However, an appearance of impropriety is not prohibited by law. Nonetheless a reasonable person might question whether an official may remain impartial on the issue. It is up to the individual public official/employee to determine whether he or she should participate or not.

Situations where there may be an appearance of impropriety, but actions that are not prohibited by the Code of Ethics might include:

* An employee who is in a position to influence others to obtain a position at her agency for her best friend from college.

* A public official exaggerated his accomplishments while running for election.
These are only examples. There are more. For instance, these questions were some of those originally asked by Achorn and enraged Tarantino (as posted by Don)
Is it healthy for legislators -- some of whom work for law firms whose members appear before the courts -- to exclusively set the budgetary parameters for judges' compensation and working conditions? Can judges who strike budget deals with legislators render impartial decisions on constitutional matters that profoundly affect legislators?
There are plenty of reasons to raise questions, especially when we can't be too sure that RI Citizens will even be made aware of important "open meetings." I would venture to say, given the history of political corruption in the Ocean State, Tarantino's indignation at Achorn's "innuendo" rings hollow to many Rhode Island citizens. "If it walks like a duck, and talks like a duck. . ."

Finally, I can understand why Tarantino has taken umbrage to the tough questions Mr. Achorn has asked. However, I believe that he can stop his research on behalf of the Lottery Commission now, for it "appears" we already have an idea as to what his "honest opinion" regarding Separation of Powers and legislators on the Commission will be. But then again, I don't want to engage in innuendo.

January 6, 2005

A Law Degree of Separation

Justin Katz

The thing about lawyers — as about salesmen — is their ability to persuade people into forgetting well-formed opinions and garnered knowledge about their occupation. Of course, most lawyers are ethical, and many rise beyond that boundary to become downright admirable. The point is that they've honed an approach to addressing problems that one oughtn't forget when dealing with them — particularly when dealing with them in public debate.

Generally speaking, until they are judges, it is less their calling to determine what the law is than to argue that what it is plausibly serves a client's interest. In most of our dealings with lawyers, in other words, we hire them to make our causes their own, and it is easy to think the best of somebody who's on our side.

I'm certainly writing in broad strokes, here, but my purpose is to suggest that lawyers will inevitably — and rightly — bring their talents to bear when arguing their own interests. As John Tarantino, Esq., writes in a Providence Journal piece, lawyers try their best "to represent clients zealously," and one would expect them to do no less when their "client" is an issue about which they care. In Tarantino's case, the craftsmanship is evident in the very first clause:

EDWARD ACHORN recklessly expressed the fear that our courts could be governed by the will (and perhaps the whim) of the legislature, rather than by the rule of law.

What, the reader may wonder, is reckless in Achorn's expression — the manner or the substance? Such phrases as "his drive-by-shooting style" would seem to suggest that it is the manner that's reckless. But Tarantino's prayers "that the public never loses faith and confidence in our courts" suggest that the recklessness is in some degree related to Achorn's effectiveness.

Indeed, for all of his aggrieved personal offense, Tarantino never explains whether expressing the particular fear of an ethically compromised judiciary is reckless because it is impossible or because it is not to be feared even if real. He never says, that is, whether our "faith" should derive from evidence or from force of will.

Note that, although Tarantino is one of the lawyers researching the question at hand ("how the separation-of-powers amendment affects" the Lottery Commission), he offers not a shred of argument about it. He asserts the complexity of the analysis, saying, "There are no clear-cut answers to many constitutional questions." But he does not describe the complexity involved, nor the ease with which decisions pertaining thereto can be "shaded" to cut in one side's favor.

Although I'm not accusing Mr. Tarantino of anything untoward, an appeal to complexity is precisely what one would expect from a lawyer seeking to make the law say something that it does not; falsehood is often declared to be truth when buried under mounds of complexity. Again, the following may simply be error — not a crack in a deceptive construction — but it seems to me that a critical consideration could be slipping through a rhetorical loop in this paragraph:

Why? Because the legislature decided last year to allow Chief Justice Frank Williams the ability to exercise greater control over the judiciary's budget. Now, for those who truly are interested in separation of powers, isn't that a good thing? Shouldn't the judiciary have greater control over its budget? It seems to me that an independent judiciary (something we all want) is better served when the chief justice has reasonable control over the court's budget.

That reads a bit too much like a lawyerly maneuver pushing the rallying cry of "separation of powers" to knock down the related pillar of balance of power. By design, the judiciary is not "independent" on budgetary matters; however, it is now only dependent upon one other branch of government. Tarantino admits this when he calls the new policy "a sharing of budgetary control along lines that make sense." Why that makes sense is another aspect of the debate that Tarantino does not engage, but I'd suggest that an independent judiciary, which we do all want, is better served when:

  1. A single other branch does not have sole control over its purse strings, and
  2. Circumstances aren't such that the members of the judiciary — who are real flesh-and-blood people, not abstract scales balancing justice and churning out raw data on constitutional questions — might be tempted to assent to mutual corruption (Anybody who doubts that such a thing could happen should research the last few generations of the Bevilacqua family.)

At this point, readers can be forgiven for having been distracted from perceived indicators that "extrajudicial influences" mightn't be so imaginary — not the least because Tarantino never addresses them. Instead, he portrays the judiciary as the victim of "target practice." As if the one branch of our government run by unelected judges-for-life is just a delicate collection of public servants.

In deference to the feelings of this selfless elite, "decent persons will want to see how the issues Mr. Achorn complains about are presented, make their way through the courts, and ultimately are decided before they pass judgment." Of course, once the gavel has struck, the judgment of decent people will be absolutely moot. Writes Tarantino:

By the way, that is a good thing, not a bad thing. The courts are the places where these difficult issues should be resolved. Our courts, not our legislature, not our lawyers, and certainly not our newspaper columnists, should decide constitutional questions.

Not, apparently, by a passive public of decent people, either, whose trial subscription to the constitutional regime dictated by judges can never be cancelled.

Meeting in RI

Carroll Andrew Morse

As a result of the separation of powers legislation passed in November, legislators are barred from serving on Rhode Island's executive boards and commissions. Governor Carcieri has proposed a new slate of members for the Rhode Island Lottery commission. Senate President William Murphy, however, claims the lottery commission is exempt from the separation of powers law. To help me understand why this might be so, and what the lottery commission actually decides, I decided to look up the Rhode Lottery Commission website. I figured a record of votes, meeting minutes and meeting agendas would be publicly available.

So, far I haven't been able to find the information anywhere online, despite Rhode Island Secretary of State's Matt Brown's efforts to make information from all government meetings in Rhode Island electronically available. (Here is a Brown University Study on how well the open meetings law passed in 2003 was complied with, and a Projo summary of the report.)

Given the current state of affairs:
1. Why not amend the Open meetings law to state that any action requiring a vote that is not posted electronically within 30 days of passage shall be deemed null and void.
2. Let's suggest to the current lottery commission members -- legislators or otherwise -- that if they are too busy to fulfill the basic function of informing the public of what they do, they should resign for that reason alone.

January 4, 2005

They Just Don't Get It

This posting builds on a previous posting entitled "Unprincipled, Undemocratic Behavior" and a related posting by Marc Comtois.

Both postings noted how House Speaker Murphy and Senate President Montalbano were going to maintain the legislative meddling in certain executive matters in spite of the 78% voter approval in November of the Separation of Powers constitutional amendment.

Ed Achorn of the Providence Journal has another editorial in today's newspaper about the June 2004 power grab by the legislature on behalf of Chief Justice Frank Williams.

The editorial highlights the magnitude of our ongoing problem here in Rhode Island. Specifically, it notes how the legislature cut the governor out of future budget decisions affecting the judiciary and did so without going through the Judiciary Committee and without any public hearings at the time.

Achorn raises two questions, the first being whether such a change is even constitutional. Here are his thoughts on his second question:

Does cutting the governor out of the budget -- removing one of the public's protections against legislative and judicial collusion -- create too close and cozy a relationship between judges and legislators?

Is it healthy for legislators -- some of whom work for law firms whose members appear before the courts -- to exclusively set the budgetary parameters for judges' compensation and working conditions? Can judges who strike budget deals with legislators render impartial decisions on constitutional matters that profoundly affect legislators? Does a direct track between judges and legislators -- cutting out the executive branch -- contribute to justice, and the perception of justice, in Rhode Island?

There was no time to ask those questions, or obtain answers. Frank Williams got what he wanted, and the public got shoved aside.

Is this the Rhode Island we aspire to? Is this behavior consistent with the principles of American constitutionalism?

These actions are a disgrace and we shouldn't tolerate more of the same old unprincipled behavior by our public officials.

They just don't get it. Unfortunately, history tells us that they won't stop until all of us join in speaking up loudly and clearly against such undemocratic actions.

December 21, 2004

RE: Unprincipled, Undemocratic Behavior

Marc Comtois
Also of interest in Achorn's piece was the possibility of a potential quid pro quo between Montalbano and Murphy and Chief Justice Frank J. Williams. For some time, Williams had advocated that executive oversight, ie. the Governor, be removed with regards to the day-to-day operations (firings, hirings, raises, etc.) of the judicial branch. Interestingly, the legislature continued to maintain their oversight responsibilities. Obviously, Governor Carcieri opposed this plan, and he was supported by Common Cause, who charged Williams with attempting a judicial "power grab". In addition to the opposition by the Governor and Common Cause, some legislators had legitmate questions regarding the "judicial independence" portion of the budget. According to the Providence Journal's report on the debate on June 25, 2004:
The Senate yesterday easily approved the $5.9-billion spending package for the fiscal year that begins July 1. The longest debate came over the promise of new budget powers for the judicial branch.

Sen. Leonidas Raptakis, D-Coventry, moved to delete an article that would allow the judiciary to submit its budget directly to the General Assembly without revision by the governor.

Sen. Marc Cote, D-Woonsocket, said such a "serious and weighty issue" deserved more debate. "In my opinion this type of amendment and policy decision -- to have it incorporated into the budget is bad government," he said.

Sen. J. Michael Lenihan, D-East Greenwich, called the provision, "by any reasonable standard, a huge change in how we operate our budgets," and deserving further scrutiny.

But Lenihan suggested that the measure had other problems, including its allowing the courts to set up a separate purchasing system and exempting them from public procedures for establishing new regulations. He questioned how the governor could assemble a budget with "no idea what the package is going to ultimately cost."

A former Finance Committee chairman, Lenihan also said he knew "full well . . . just how generous the legislature has traditionally been to the court system." The fact that the Assembly will now be the only body reviewing the judiciary's spending, "quite frankly scares the hell out of me," he said.

Sen. James C. Sheehan, D-North Kingstown, had a different complaint. Sheehan suggested that the language violates the constitutional requirement that the governor present an "annual, consolidated operating and capital-improvement state budget."
However, the plan had its defenders, who cobbled together enough support to pass the bill with the "judicial independence" portion intact.

Then, in a seeming coincidence, and only twelve days after passage of the budget with the "judicial independence" provisions, Montalbano's son was hired to work as a data entry aide in the Rhode Island Superior Court.
Asked whether there was any connection between the two events, Montalbano spokesman Greg Pare said the Senate president, D-North Providence, acknowledged Stephen was his son: "Beyond that he has no comment."
Really sounds on the up-and-up, doesn't it?

To justify the removal of the Governor's executive oversight, Montalbano stated that, "Let's recognize that separation of powers doesn't mean that all executive power is vested in the governor, because that's not what I meant when I put it on the ballot in November." It's too bad for Montalbano that Rhode Island voters believed that all executive power is vested in the Governor. The attempt by Murphy and Montalbano clearly shows they have a different interpretation of Executive power than most of Rhode Island's voters. We must be sure to disabuse them of their wrongheadedness. If we allow them to keep their foot in the door, it won't be long before we will find ourselves right back where we started a decade ago.

NOTE: This post was modified at 7:30 AM on 12/22/2004. The original, and shorter, post was "a work in progress" that I mistakenly put up. Then we had a problem with our server, so I couldn't update it in a timely fashion. I apologize for the confusion.

Unprincipled, Undemocratic Behavior

Ed Achorn of the Providence Journal has published an important editorial in today's paper that highlights how Rhode Island House Speaker William Murphy and Senate President Joseph Montalbano are, in Ed's words, "boldly trying to nullify the [78%] landslide vote of November 2" for a constitutional amendment that brings separation of powers to the state.

I would encourage you to contact these two elected officials and your own elected Rhode Island officials as soon as possible to register your complaint loudly and clearly about this unprincipled behavior. The editorial provides a directory for all state officials.

In standing up to such an undemocratic action by Rhode Island officials, the citizens of Rhode Island must again assert their belief in self-government and our demand that all elected officials obey the laws of our state.

December 8, 2004

Degrees of Separation

Justin Katz

The alarm siren that this news sets off should be audible as distantly as Hawaii:

Superior Court Judge Netti Vogel last week issued a permanent injunction blocking the state's three-year agreement with United. United rival Blue Cross & Blue Shield of Rhode Island had sought the injunction, claiming the state's handling of the bids was unfair. Vogel agreed, saying it was riddled with errors and that the state must seek new bids.

The Carcieri administration appealed Vogel's decision to the Supreme Court on Monday, and sought an immediate suspension of the injunction and quick consideration of its appeal.

Note that I'm calling for an alarm — not action. I lack the background to know what is and isn't legitimate practice in the contract bidding process, and I lack the time to research the relevant law. One way or another, something just is not right in this sequence of events.

I trust the governor when he says that, even "if the allegations contained in the judge's decision were true, United HealthCare's bid would still be superior to the bid submitted by Blue Cross." Furthermore, I'm not impressed with Vogel's decision (PDF). Somewhere between the phrases "the lame excuse" on page four and "a feeble effort" on page ten, I began to wonder what legal purpose the adjectives were meant to serve. Nonetheless, my personal impressions are not the main reason for concern.

The problem is that we live in a state in which the legislature consents to tacking a provision on to the state budget that removes the executive branch from the handling of budget requests from the judiciary... and then overrides the governor's veto. Where the guy running Blue Cross & Blue Shield of Rhode Island was, until the last election, the father of a state representative.

Vogel leverages the State Purchases Act, which became law in 1989, a period during which the state senate was under the "effective control" of John Bevilacqua. John is the son of Joseph Bevilacqua, who had (at that time) recently resigned his position as Supreme Court Chief Justice "amidst revelations about links to organized crime figures," and brother of Joseph Jr., also a man with interesting connections as well as the apparent source of the videotape whom the ailing Jim Taricani has (according to Taricani) risked prison to protect.

According to the language of the law, it "shall be liberally construed and applied to promote its underlying purposes and policies." At first, I wondered whether "liberally construed and applied" might be meant to give the executive branch room in which to conduct smart business maneuvers. Then I read Governor Carcieri's press release stating that even "Blue Cross admitted that United HealthCare's bid was more favorable to the taxpayers," and it occurred to me that Vogel's rhetoric is mainly concerned, not with the taxpayers, but with "fairness" to Blue Cross & Blue Shield:

Whether due to ignorance of the law, their own flawed sense of fairness, or some other less innocent motive, [the executive] skewed the process in favor of United and denied BCBSRI fair and equitable treatment mandated by law.

Now, I'm not asserting any form of wrongdoing on either side. I'm merely suggesting that we ought to keep a very close eye on the judicial overruling of executive processes on the basis of ensuring fair treatment for a healthcare monopolist with questionable connections throughout the state and its government.

Let me tack on, here, a tangential curiosity that I stumbled upon while skimming this ruling. Vogel writes that "the Court does not require a 'smoking gun' to draw a reasonable inference that favoritism was present and that Defendant acted so unreasonably, arbitrarily and capriciously as to be guilty of a palpable abuse of discretion." The phrase "smoking gun" is footnoted as follows:

On August 5, 1973, President Nixon released transcripts of taped conversations he had had six days after the Watergate break-in. Those transcripts became known as "The Smoking Gun" because they disclosed how early Nixon learned that his staff and re-election campaign had been involved in the break-in and also revealed his own participation in the cover-up. Following release of those tapes, it became clear that Nixon would be impeached and convicted in the Senate.

Is it common for judges to indulge in political history (involving Republican scandals) in order to explain extremely common phrases?