Common Cause Briefs in Ethics Comm.’s Appeal

Common Cause Rhode Island has issued friend of the court briefs in Irons vs. Rhode Island Ethics Commission. Click below to read what we have to say on these important issues to all Rhode Islanders.

Brief on Speech in Debate

Brief on Jury Trial

Reply Brief

Is ‘R.I. Ethics’ an Oxymoron?

By: EDWARD ACHORN

SHORTLY AFTER I arrived at The Journal, a sardonic editor informed me with a straight face that the phrase “Rhode Island ethics” was an oxymoron. I had a good laugh, but it seems he may have been prophetic.

Because, in October, Superior Court Judge Francis Darigan pulled the rug out from under the state’s system for enforcing ethics in government. He dismissed charges that former Senate President William Irons had acted in the interests of a business client, finding that the “speech-in-debate” clause of the state constitution barred the state Ethics Commission from questioning or investigating lawmakers on the basis of their legislative acts.

And now the American Civil Liberties Union has weighed in, agreeing with the ruling and arguing that “fundamental rights and liberties” in the state constitution give Rhode Island legislators freedom from the irritating restraints on their conduct imposed by the Ethics Commission.

The Rhode Island Supreme Court is set to hear arguments May 13.

I’m no constitutional lawyer, and I’ve always had qualms about a quasi-judicial body operating (as the Ethics Commission does) in a murky region outside the executive, legislative or judicial branches, but this argument certainly seems bizarre on its face.

After all, members of our national legislature, Congress, have similar speech protections yet are hemmed in by ethics restrictions. They should have maximum protection to do their jobs representing the people, of course. It is necessary to shield them from attack by powerful interests or other branches of government for exerting their will as representatives. On the other hand, the U.S. Supreme Court has ruled that this clause does not give congressmen the right to, say, accept bribes for their string-pulling or votes.

As for the notion that the Ethics Commission violates the constitution: Rhode Island voters jumped through the appropriate hoops in 1986, when, sickened by government corruption, they amended the constitution to create the Ethics Commission. Such reform is always a Herculean effort, a long hard pull against powerful reactionary forces that are heavily invested in corruption (legal and otherwise) at the State House. The Darigan ruling seems to disenfranchise those voters and disregard the constitution as they amended it, something that in itself is ominous.

The Rhode Island Constitution (Article 3, Section 8) states: “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.”

If all elected officials are included under the constitution, that by definition includes members of the General Assembly.

But here’s the rub: The constitution also states (Article 6, Section 5): “For any speech in debate in either house, no member shall be questioned in any other place.” Does this clause supersede the voters’ will in the other section? And must it be interpreted so broadly that “speech in debate” includes the right to sell one’s office for private gain and evade the state’s ethics code, as administered by the Ethics Commission?

Were such an interpretation to stand, ethical judgments in recent years — including those against former House Majority Leader Gerald Martineau, House Majority Leader Gordon Fox, former Sen. John Celona and former Senate President Joseph Montalbano — could not have been pursued. That might please political insiders, who would be blessed with greater freedom to turn public office into income opportunities. Whether it would serve the public interest is another matter.

That is why Common Cause Rhode Island, the League of Women Voters of Rhode Island and Operation Clean Government have all filed briefs supporting the commission’s challenge of Judge Darigan’s ruling.

Of course, an ethics commission is not the only check on corruption. A free and vigorous press is also crucial, as are competitive elections. When a politician faces an opponent, he or she is much more inclined to serve the general good rather than special interests and selfish financial aims. That is because such conduct can become a campaign issue.

For that reason, the public should be pressing its elected officials to get rid of the “master lever” on the ballot, a corrupt legacy of machine politics. That ballot option gives a majority-party candidate a huge built-in advantage against a minority-party or independent candidate. Such unfair elections not only help deny voters a choice on the ballot, but also deprive them of incumbents who care very much about what the public thinks.

In the meantime, citizens concerned about ethics in Rhode Island government will be waiting nervously to find out whether the Supreme Court goes along with Judge Darigan’s intriguing interpretation of the constitution.

Edward Achorn is The Journal’s deputy editorial- pages editor ( eachorn@projo.com).

Sides Weigh in on Irons Case

Sen. William V. Irons walks out of his office after announcing his departure from the General Assembly in December 2003.

The Providence Journal / BOB THAYER

When I joined The Journal’s State House bureau in 2000, one of my first assignments involved listening to then-Senate President William V. Irons offer advice to newly elected state legislators.

“You will not win reelection to this chamber by what you do in this building,” Irons told them. “It’s going to come as a shock to you freshmen,” he said, but the truth is most people don’t pay attention to the votes and stances legislators take on most issues.

“Please don’t misunderstand,” Irons said. “I’m not saying do anything you want up here and forget what they say.” The point, he said, is that legislators should not forget about the people who elected them. “Don’t forget your Little League associations,” he said. “Don’t forget your Lions Clubs.”

That advice seemed a bit cynical, but it contained a lot of truth. The average Rhode Islander doesn’t have time to follow the votes taken by the Senate Corporations Committee, for instance. And the average voter didn’t notice when Irons, as chairman of that committee, opposed a controversial pharmacy-choice bill that CVS — the pharmacy chain he’d sold insurance to — wanted killed.

In addressing the rookie lawmakers, Irons was no doubt emphasizing the importance of constituent service. But to me, his comments drove home the importance of watchdogs — of the reporters and groups that keep an eye on obscure committee votes and that probe possible conflicts of interest.

One of those watchdogs is the state Ethics Commission, which is now locked in a high-stakes legal battle with Irons. In the weeks ahead, the state Supreme Court will be weighing whether to uphold a ruling that says the Ethics Commission can’t prosecute legislators based on their votes and other legislative activities. The Ethics Commission says that if that ruling stands, it could cripple its ability to police unethical behavior in the General Assembly.

Irons, an insurance salesman from East Providence, abruptly resigned in December 2003 after two decades in the Senate. The Journal later disclosed that Irons had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross health-insurance policy covering CVS workers in Rhode Island. The Ethics Commission found probable cause to believe Irons broke the ethics code by using his public office to obtain financial gain for his business associate, CVS.

But Irons’ lawyer went to Superior Court, arguing that the state Constitution’s “speech-in-debate” clause provides him with legislative immunity from such prosecution. Ethics Commission lawyers contended that voters “carved out a narrow exception to legislative immunity” when they amended the state Constitution in 1986 to create the Ethics Commission.

But in October 2008, Superior Court Judge Francis J. Darigan Jr. ruled in Irons’ favor, saying that if the drafters of a 1986 ethics amendment intended to repeal or dilute the speech-in-debate clause, “they could have and should have made that intention explicit.”

The Supreme Court will hear arguments in May. And in the meantime, the American Civil Liberties Union, Common Cause Rhode Island, the League of Women Voters of Rhode Island, and Operation Clean Government are adding their voices to the debate, filing legal briefs to go along with those filed by Irons and the Ethics Commission. The documents detail the complexity of the case and highlight its importance.

In the Ethics Commission brief, lawyers Jason Gramitt and Katherine D’Arezzo say Darigan’s ruling “sets the state of Rhode Island back 22 years and, more importantly, disenfranchises” the voters who overwhelmingly approved the 1986 ethics amendment to restore the public’s trust in government.

They argue that the Supreme Court has previously determined that “the Ethics Commission’s unique constitutional mandate and structure permit narrow intrusions into legislative areas traditionally protected by separation-of-power principles.”

Ethics Commission lawyers cite a 1992 Supreme Court advisory opinion that said the 1986 ethics amendment modified, by implication, another section of the state Constitution. (The opinion dealt with whether the Ethics Commission could add new prohibitions to the ethics code without first seeking General Assembly approval.)

But Irons’ lawyers say the issue presented in this case “is in no way controlled by” the Supreme Court’s 1992 advisory opinion.

“Although the delegates drafted the ethics amendments to establish an independent body, they did so without a repeal (and, in fact, with a re-adoption of) the speech-in-debate clause,” lawyers John A. Tarantino, Patricia K. Rocha and Victoria M. Almeida say. “Consequently, the Ethics Commission is empowered to investigate actions of legislators performed in a political, not legislative capacity.”

Irons’ lawyers cite a 1984 Supreme Court ruling, in Holmes v. Farmer, that said, “Legislators should not be questioned by any other branch of government for their acts in carrying out their legislative duties.”

The Holmes case involved an appeal by a former state Republican Party chairman who wanted to challenge the constitutionality of legislative redistricting. The Supreme Court said the speech-in-debate clause protected lawmakers from being questioned in that lawsuit.

But the Ethics Commission notes the Holmes case involved a suit filed by a private party rather than the Ethics Commission, and the case was decided before the 1986 ethics amendment.

A legal brief filed on behalf of Common Cause and the League of Women Voters addresses many of the same issues while also focusing on historical context.

In that brief, lawyer Thomas R. Bender says the state’s “speech-in-debate” clause is modeled after the federal “speech or debate” clause, which has “taproots in the Parliamentary struggles” of 16th- and 17th-century England where “successive monarchs utilized the criminal and civil law to suppress and intimidate” legislators critical of the king.

Bender says the “legislative independence” provided by the speech or debate clause “is, however, intimately linked with the legislative responsibility to internally discipline its members.” And in Rhode Island, when legislators repeatedly failed to police their own misconduct, voters decided that legislative independence “had to give way in small measure to the public’s interest in, and confidence in, legislative integrity.”

Bender quotes the Supreme Court’s ruling as saying that prior to the 1986 ethics amendment, “widespread breaches of trust, cronyism, impropriety and other violations of ethical standards decimated the public’s trust in government.” He says the 1986 ethics amendment shifted the legislative power regarding ethics away from the General Assembly, placing it in the hands of an “independent, nonpartisan commission with the power to ‘question’ core legislative activities.”

In Operation Clean Government’s legal brief, lawyer Thomas More Dickinson emphasizes that the 1986 ethics amendment says “all elected and appointed officials” shall be subject to the ethics code. And, he says, “To hold an entire class of elected officials — within an extremely powerful branch of our state government — exempt from enforcement of the code is to break faith with convention delegates who wrote the amendments and the voters who heartily approved them.”

I have no doubt about what the framers and the voters intended to do in 1986. And I believe Rhode Island needs an Ethics Commission that has the power to police legislative activities for conflicts of interest.

But I do have doubts about whether the framers and the voters who passed the 1986 ethics amendment fully succeeded in doing what they intended to do. I have doubts about whether it was enough to say the ethics amendment applies to all elected officials, and I wonder if the amendment should have spelled out that it overrides legislative immunity. Those doubts are stoked by the legal brief filed by the ACLU’s Rhode Island Affiliate.

In that brief, lawyers Mark W. Freel and Jon M. Anderson say the ethics amendment and the speech-in-debate clause are not in direct conflict, and “even if they were, constitutional guarantees of civil liberties cannot, should not and must not be repealed or limited by implication.”

Stay tuned as the debate continues before the Supreme Court on May 13.

When the newly elected legislators gathered in December 2000, Irons no doubt provided some practical suggestions. But I think the better advice came from then-Gov. Lincoln C. Almond, a former U.S. Attorney who began and ended his remarks with an admonition about integrity.

“There’s a lot of cynicism out there,” said Almond, who chose to address the lawmakers from the Senate floor rather than the elevated podium favored by other speakers. “But we should all show leadership with respect to the integrity of state government.” High ethical standards, he suggested, are key to giving citizens a “strong degree of confidence” in government.

If all of the state’s elected officials followed that advice, we wouldn’t need an Ethics Commission in the first place.

efitzpat@projo.com

BOE Supports Removing the Master Lever

The body charged with “the governance and conduct of elections” in Rhode Island has voted to support efforts to remove the straight party master lever from the ballot. On Wednesday, April 22nd, the Rhode Island Board of Elections voted 3 to 1 to support the bi-partisan movement to eliminate the master lever.

“The Board of Elections vote does not mean the straight party master lever is removed from the ballot,” says John Marion of the government reform group Common Cause, a member of the Make Every Vote Count coalition, “but their custodial role over elections in Rhode Island means their approval carries great weight.” Only the General Assembly can remove the straight party lever and currently there are two bills to do so, H 5318 and S 80, stalled in committees at the Statehouse.

“The straight party master lever is problematic for many reasons,” says activist Margaret Kane, “it does not work well with our current optical scan system.” This especially affects elections at the local level. In local non-partisan elections (16 RI Communities), a large undervote is due to straight party votes that ignore these races. And in instances in local partisan elections, the straight party vote in any local race with more than one position, is deleted without the voters’ knowledge, when voters make additional marks on the ballot in that local race.

Group Raps Governor for Judge Delay

The deadline expired earlier this week

Updated: Thursday, 23 Apr 2009, 7:58 AM EDT
Published : Thursday, 23 Apr 2009, 7:58 AM EDT

PROVIDENCE, R.I. (AP) - A good government group is criticizing Rhode Island Gov. Don Carcieri for a delay in nominating a new chief justice to the state Supreme Court.

Under state law, the governor must fill judicial vacancies within 21 days of receiving a list of finalists from the Judicial Nominating Commission.

Carcieri’s nominee must be confirmed by the General Assembly.

That deadline expired earlier this week. Carcieri’s spokeswoman has said the governor doesn’t view the deadline as mandatory and wants to take his time in making a pick since judges have lifetime appointments.

But the group Common Cause said in a statement Wednesday that the governor is flouting the law, and that the judiciary needs to be fully staffed. The group says the law isn’t advisory.

Common Cause Urges Governor to Choose Judges

Wednesday, April 22nd marks the 22nd day since the Judicial Nominating Commission (JNC) sent a list of finalists to Governor Carcieri for the position of Chief Justice of the Rhode Island Supreme Court. The law creating the JNC (§ 8-16.1-5) clearly states “(b) The governor shall fill any such vacancy within twenty-one (21) days of the public submission by the commission.” Common Cause Rhode Island asks; where is our new Chief Justice?

“The proper administration of justice relies on a fully staffed judiciary,” says John Marion, executive director of Common Cause Rhode Island, “and by ignoring the law concerning judicial vacancies, the Governor is preventing that from happening.” Besides the current vacancy for the Chief Justice slot, there are two other vacancies for which the JNC provided lists to the Governor, in 2008, and that are still unfilled. Common Cause Rhode Island urges Governor Carcieri to fill all judicial vacancies in a timely manner and in accordance with the law.

ACLU backs ex-Sen. Irons in Ethics Case

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — The Rhode Island Affiliate of the American Civil Liberties Union is backing former Senate President William V. Irons in his effort to persuade the state’s high court to let stand a ruling that the state Constitution protects lawmakers from ethics probes into their legislative acts.

The ACLU on Monday filed a friend-of-the-court brief with the Supreme Court supporting Irons’ position that the Constitution’s “speech in debate” clause prevents the Ethics Commission from questioning or investigating lawmakers based on their legislative activity. The brief challenges the commission’s arguments that a constitutional amendment, passed by voters in 1986 in response to cronyism and corruption, empowered it to investigate ethics complaints against lawmakers by trumping the clause.

The ACLU wrote that the commission’s argument that the amendment implicitly limits the clause is “a launch down a slippery slope of eroding the civil liberties of all Rhode Islanders who come before the Ethics Commission, not just Mr. Irons.”

“Fundamental rights and liberties placed into our state Constitution many years ago should not be removed or rescinded by guesswork or subtle interpretation, which is what the Ethics Commission suggests,” Mark Freel, a volunteer lawyer for the ACLU, said in a news release. “Rather, those rights should remain intact, to protect all Rhode Islanders, until or unless they are repealed or modified by the very specific formal procedures in place for constitutional amendments.”

Irons abruptly resigned in 2003 after two decades in the Senate. The Journal disclosed that Irons, then chairman of the Senate committee that deals with health-care matters, had collected hundreds of thousands of dollars in commissions on a Blue Cross policy covering CVS workers. He had opposed pharmacy-choice legislation that CVS, to which he sold insurance to, wanted killed.

The Ethics Commission found probable cause that Irons violated the Code of Ethics after the watchdog group Operation Clean Government filed a complaint. The next step would typically have been a hearing before the commission. Irons, however, went to court in an attempt to block the commission prosecution.

In October, Superior Court Judge Francis J. Darigan Jr. dismissed the ethics charges against Irons, finding that the “speech in debate” clause prevented the Ethics Commission from questioning or investigating lawmakers based on their legislative acts.

Darigan also ruled that the commission’s proceedings are civil, not criminal. He said Irons, who requested a jury trial on the charges, was not entitled one because, he said, he found no evidence that anyone had been tried for such crimes prior to the passage of the state Constitution.

The commission appealed the ruling. Irons is seeking a jury trial in the event the high court overrules Darigan regarding the speech-in-debate clause. The ACLU did not weigh in on that issue.

Common Cause Rhode Island, the League of Women Voters of Rhode Island and Operation Clean Government have all filed briefs supporting the commission. The Rhode Island Supreme Court will hear arguments May 13.

kmulvane@projo.com

Promoting Transparency in Tax Expenditures

April 15th is Tax Day, and Common Cause Rhode Island wants to bring transparency to the tax breaks granted by our state. That’s why we’re supporting H 5718 and S 526 which propose changes to the State’s Tax Expenditure Report. The Tax Expenditure Report is supposed to be the single source of information for how tax breaks are accounted for in Rhode Island. A recently released report demonstrates the deficiencies in the Rhode Island document. Read the letter we sent to Rhode Island leaders asking for greater transparency.

Common Cause Weighs in on Merit Selection

On Saturday, April 12th, the Providence Journal published an Op-Ed by John Marion, executive director of Common Cause Rhode Island, on renewing merit selection of judicial officers in Rhode Island. As the Assembly sessions moves into high gear, now is the time for action. Join us in supporting S 607 and H 5433 to bring magistrates under the merit selection system. Help us oppose H 5567 and S 760 extending the 5 year look-back for the Governor. Contact your representatives today and demand they restore the merit selection process.

Click here to read the Op-Ed.

Click here to get a link on how to contact members of the General Assembly.

Coastal Agency in Danger of Going Under

By Peter B. Lord

Journal Environment Writer

Rhode Island’s coastal agency, charged with regulating every marine development — from coastal mansions to a billion-dollar wind farm — is in trouble.

The council’s leadership has been questioned in a major court decision and its membership has become so decimated that it has been unable to vote on coastal development issues for the last two months.

The recent court decision set aside the vote the Coastal Resources Management Council took on one of its most controversial cases in a decade — expansion of Champlin’s Marina on Block Island. The hearing judge found the council’s chairman and vice chairman, Micheal Tikoian and Paul Lemont, prejudged the case and committed so many errors during the several-year-long hearing process that she disqualified their votes.

“Like Tokoian, Lemont lost his presumption of honesty and integrity as an agency adjudicator and became an advocate,” wrote Judge Netti Vogel. The decision will be appealed.

The decision came as the number of council members, unpaid citizens who set coastal policies and vote on major applications, was already depleted as a result of another major court opinion in December.

The council is failing to obtain quorums to do business. Usually it meets twice a month. But it hasn’t held a meeting since January.

Governor Carcieri’s spokeswoman, Amy Kempe, says he is not prepared to nominate new council members until the General Assembly approves new enabling legislation for the council. But the legislature has several bills before it and none has generated wide support or showed signs of winning quick approval.

The situation is so serious that Brian A. Goldman, the council’s lawyer, took the unusual step of helping Sen. V. Susan Sosnowski, D-South Kingstown, write legislation and then appeared before her committee last Wednesday asking for quick action.

“We need a statute,” Goldman said. “We have things to move forward or that are starting to come to a halt.”

Compromise on some bill, Goldman said. “Don’t let the perfect get in the way of the good.”

For several years, the Senate has passed enabling legislation for CRMC. But it has died in the House, where leaders believed they should continue exercising the power to appoint half the council’s members. The House asked the state Supreme Court for its opinion, and last December it came down firmly on the side of Carcieri and affirmed his right to appoint the council’s members. Many thought that would settle issues about CRMC appointments.

But Sosnowski’s committee was given several differing opinions about the legal status of the current CRMC board last week.

Senate legal counsel Edward M. Fogarty told the committee that he believed that council members who had been appointed by the legislature could remain on the council until replacements were appointed.

But Goldman, in a Dec. 30 letter, differed. He said the Supreme Court made it clear that it would be unconstitutional for any legislative appointee to remain on the council after its Dec. 18 opinion.

Goldman advised the legislative appointees, Thomas Ricci, Gerald Zarrella and Joseph Shekarchi, that they were off the council. (All three happened to have voted in favor of the Champlin’s expansion and all three believe their dismissal was simple political retribution.)

Fogarty said the committee needs to act quickly, and he supported its plans to set criteria for future appointments, specifying that some come from small coastal towns and some from larger ones, for instance.

Sosnowski said she introduced two somewhat differing bills that could be merged if necessary, because she feels the future of CRMC is so important. She served on the council, stepping down when the Separation of Powers amendment barred legislators from serving on state boards.

“It’s imperative that we get something passed because it’s such a vital council,” she said.

But Kevin J. McAllister, president of Common Cause of Rhode Island, testified against Sosnowski’s bills, saying he believes it’s impermissible for the Senate to mandate that the governor make CRMC appointments from lists.

“It’s illegal and unconstitutional to set any mandates, qualifications or criteria for the appointments,” McAllister said. He said the Senate can express its will in a different manner, by exercising its right to advise and consent over gubernatorial appointments.

But then McAllister argued the council is in even worse shape than Goldman described. He said the presence of W. Michael Sullivan, director of the state Department of Environmental Management, on the council is unconstitutional because he hasn’t been approved by the Senate.

What’s more, he argued that only three of the current council members were approved by the Senate and can legally continue serving.

Goldman said those three are Chairman Tikoian and members David Abedon and Bruce Dawson. If only three members are legal, CRMC is basically out of business, but Goldman said he disagreed with McAllister’s interpretation.

Greta Abbott of the League of Women Voters and Jane Austin of Save the Bay also testified against Sosnowski’s bills, saying they set too many restrictions on the governor’s powers to appoint.

Now, Goldman said, it appears the council has lost its eighth member, Neill Gray, because he represented a local commission in Newport that did not reappoint him. That would leave just seven council members, the minimum the council needs to do business. And one of those members, the DEM’s Sullivan, needs to bring DEM matters to the council — matters he can’t vote on.

Goldman asked the committee to act quickly.

“We need members. We need a statute,” he said. “We have very important business to take care of.”

plord@projo.com

Reviewing Merit Selection in R.I.

By: JOHN MARION

MERIT SELECTION of judges is broken in Rhode Island and Common Cause Rhode Island wants to fix it.

What is merit selection, and why should you care? Merit selection is a method for selecting judges that seeks to minimize the role of politics in the process.

It does this by placing the power to select judges in the hands of an expert nonpartisan Judicial Nominating Commission (JNC). The commission selects among those who apply for judicial vacancies and sends three to five qualified candidates to the governor to choose from. When the governor makes his or her choice, the Senate must provide “advice and consent” to the nomination. In the case of Supreme Court justices, the “advice and consent” role is extended to both chambers of the Assembly.

You should care about merit selection because it promotes accomplishment over connections. Before its institution in 1994, judges in Rhode Island were chosen exclusively by the General Assembly. After two chief justices of the Rhode Island Supreme Court resigned amid scandal, the voters of our state chose to change the system. By switching to a merit-selection process we became the 33rd, and most recent, state to chose merit as the basis for choosing judges.

Almost since the inception of merit selection, in 1994, the political establishment in Rhode Island has been trying to undermine it. Why? Politics thrives on patronage, and judgeships are the ultimate form of patronage. With lifetime tenures and 100-percent pensions, judgeships are obviously coveted positions.

To foil the merit-selection process some changes have been made. The first, and perhaps most egregious, is the expansion of the system of magistrates. When the merit-selection system was first created in Rhode Island there were only two magistrates in the state. Now there are 19. Each position comes with a 10-year term and a pension equaling 100 percent of a magistrate’s salary.

Why does it matter that there are more magistrates? It matters because magistrates are not subject to merit selection. They are court officials, judges in most respects, and yet they are placed outside the merit-selection system. Who is getting these positions? Well, for example, consider The Providence Journal’s Feb. 28 story when an aide to House Speaker William Murphy was appointed (“Rogers makes pick for magistrate”).

In the past several years aides to other legislative leaders were given positions. Common Cause supports H 5433, sponsored by Rep. Donna Walsh (D.-Charlestown), and S 607 sponsored by Sen. Michael Lenihan (D.-East Greenwich), to put magistrates under merit selection. No longer would individual judges with lifetime terms be able to pick magistrates, but rather they would be subject to the same public process that chooses judges.

The second problem with the merit-selection system is the constitution of the Judicial Nominating Commission. As a recent article in this paper (“6 on judgeship panel serving under expired terms,” Feb. 24) points out, a majority of the members of the JNC have overstayed their term, one by over seven years! Only by circulating membership does the JNC represent the ideal of merit selection.

Last year Common Cause supported a new law that prohibits members of the JNC from being reappointed. Unfortunately, the passage of that law did not solve the problem of a lack of turnover on the commission. Because of an inexplicable lack of initiative by the leadership of the General Assembly (which must submit candidates for certain seats on the JNC), and simply puzzling behavior by Governor Carcieri (who must submit candidates for other seats), the JNC continues to consist of the same membership. And this occurs when Rhode Island faces an unprecedented number of vacancies in the courts.

Common Cause is working on legislation that would force members of the JNC who have overstayed their terms off the panel. By creating vacancies we hope to force the hand of our state’s leaders to fulfill their obligation to make their appointments. The JNC is a public body and its membership should be renewed as intended at the time it was created.

The third, and final, problem with the merit-selection process in Rhode Island is that the list created by the JNC has been diluted. Instead of a single list of three to five names, in 2007 the governor asked for, and the Assembly assented to, the ability of the governor to pick names off old lists from up to five years in the past. This undermines the idea that the JNC will pick the current best candidates for a judicial opening. This “five year look-back” is set to expire June 30 (just as it was last June 30 before it was renewed) and Common Cause intends to oppose its renewal.

Access to a fair system of justice is a cornerstone of our democratic system of government. If our judicial system is to be fair, we must have a process for choosing those who administer justice that is fair, too. So Common Cause Rhode Island is working to fix our broken merit-selection process. We hope you will join us in this reform effort by contacting the governor and your representatives in the General Assembly to close the loopholes in the system.

John Marion is executive director of Common Cause Rhode Island.

Explaining How Public Money Is Spent Can’t Hurt

By: Ed Fitzpatrick

Last week, a reporter asked the new Senate Finance Committee chairman, Daniel DaPonte, about an agreement that House and Senate leaders had reached to close this year’s $357-million state budget gap, and DaPonte did something remarkable: He talked about it.

That might not seem remarkable at first, since the House Finance Committee was scheduled to vote on the supplemental budget plan two days later. And it might not seem remarkable because the package included changes the public has a clear interest in, such as a 2-cent hike in the gasoline tax and $9 million less in school aid.

But at the State House, it was remarkable because while DaPonte was talking, House Finance Committee Chairman Steven M. Costantino was declining to comment. And the budget package wasn’t officially unveiled until House Finance met to vote on it Friday.

Some might say DaPonte made a rookie mistake and deserved to take State House heat for blabbing. But I say he did the right thing. I think the public should know the details of such significant proposals 48 hours before a key committee vote.

I’m not canonizing DaPonte. Somehow I doubt he’d have talked if he’d known Costantino wasn’t. And I’m not demonizing Costantino. House Finance puts in long hours, hearing lots of public input. But the process should be more open. And I’m hoping in the future, Costantino and DaPonte realize they can build public confidence by divulging details before the day of budget votes.

John M. Marion, executive director of Common Cause Rhode Island, said, “Senator DaPonte struck a blow for openness in making the comments he did, even though it might not have helped with the way leadership thinks this should be done — which is to negotiate a budget in a room and then reveal it and ask for instant approval.”

Marion noted the House Finance Committee did post a notice 48 hours before Friday’s meeting, saying it planned to vote on the supplemental budget. But he called for including the latest budget details in that posting. He said, “We know it would be difficult to negotiate a budget in an open committee hearing. That said, can’t there be some debate after it’s presented? Does the vote have to be at same time?”

DaPonte declined to comment. Costantino said his committee has “numerous hearings on every single [budget] article,” and he’s “very proud of House Finance on the amount of public input we receive.” He said that after House and Senate leaders reach an agreement, he briefs committee members and gathers their input, which could change the plan. “They have to know what they are going to be voting on because ultimately they are elected by the people,” he said.

In this case, DaPonte divulged details before Costantino had completed those briefings, so it looked as if Costantino did something his committee members didn’t know about, he said. “That was upsetting,” Costantino said. But, he said, “I’m not upset with Dan DaPonte at all. We are working very well together.”

Costantino noted the public can have input before the full House votes on the budget, and he said his committee held hearings on most budget items. But he said it’s “fair criticism” to note there was no hearing on the gas tax.

“Democracy is not perfect,” Costantino said. True, but it can be improved. And here’s an easy fix: Give the public the same courtesy afforded House Finance members and provide them with the details of any budget plan before the day of the vote.

efitzpat@projo.com