Sunday, March 8, 2009

Advocates Push to Revamp Magistrate-Selection Process

By Katie Mulvaney

Journal Staff Writer

PROVIDENCE — Their ranks have included the wife of a former House speaker, the Senate Judiciary Committee chairman’s sister and staff members of key state legislators, sparking criticism that the magistrate selection process is laced with politics.

And now matching bills have been submitted in the House and Senate that would subject magistrates to the same vetting as judges to ensure, supporters say, their selection is based on merit, not politics. They are backed by the government watchdog group Common Cause Rhode Island and the League of Women Voters of Rhode Island.

“I think it’s the fairest way to appoint magistrates, that they undergo the same rigorous review,” said Rep. Donna M. Walsh, a Charlestown Democrat who sponsored a similar bill that died in committee last year.

The measures would take the appointing authority for the state’s 20 magistrates away from the Superior Court presiding justice, Family and District Court chief judges and the Supreme Court chief justice.

Instead, magistrates, often a steppingstone to judgeships, would be selected in the same manner as judges. Interested individuals would apply to the Judicial Nominating Commission, which would forward a list of three to five candidates to the governor after a review and interview process. The governor would than have 21 days to submit a nominee to the state Senate for approval.

The bills come as the Senate on March 2 confirmed Superior Court Presiding Justice Joseph F. Rodgers’ selection of Patrick T. Burke to fill the opening created by Joseph A. Keough’s retirement as special magistrate in December. Burke, 45, has served as deputy assistant to House Speaker William J. Murphy since 2003.

“Our belief is that merit selection is broken,” said John Marion, executive director of Common Cause. He looks to other recent appointments that include R. David Cruise, former Senate President Joseph A. Montalbano’s chief of staff, as Traffic Tribunal magistrate, and William R. Guglietta, chief legal counsel to House Majority Leader Gordon D. Fox, D-Providence, as the tribunal’s chief magistrate.

“Now, we have Murphy’s aide?” Marion said.

Magistrates serve 10-year terms that can be renewed by the Senate and typically earn a base salary of $128,650, according to Craig N. Berke, court system spokesman. They have some of the same powers as judges, generally presiding over arraignments, motions and sentencing in uncontested cases. They do not hear trials, Rodgers said.

Rodgers defended his choice of Burke, saying it was no more political than then Sen. Lincoln D. Chafee’s backing of former state Supreme Court Justice Robert G. Flanders for the 1st U.S. Circuit Court of Appeals in 2006 or any other judicial appointment.

“Does that necessarily mean it’s bad? I don’t think so,” he said.

He chose Burke from among 27 applicants, he said, for his previous experience working with the pre-arraignment calendar he would be handling as magistrate and because he was well-respected as Murphy’s deputy assistant.

Rodgers said he wouldn’t object to placing magistrate selection under the JNC, but that the law should be written so the choice is made in consultation with the chief judges because the positions are specialized. For example, he said, magistrates assess sex offenders’ risk of reoffending, handle fines and restitution, and deal with juvenile truancy — duties that should not be relegated to judges.

“I honestly believe the chief judge of the respective courts knows better what the needs of the particular court might be,” he said.

Walsh first took aim at magistrate selection as a member of the Senate Judiciary Committee in 2000, when she sponsored legislation to change the confirmation process. She said it wasn’t politically popular at the time because then-House Speaker John Harwood’s wife, Patricia Lynch Harwood, had just been appointed Superior Court magistrate.

“I’m not quite sure what the resistance is,” she said, adding, “I think it’s a way of getting around things a little bit.”

Common Cause hopes the bill gains traction this time around.

Magistrate selection, Marion said, defies the changes to the judicial selection that voters approved in 1994 after two Supreme Court chief justices resigned amid scandal. Rhode Islanders, he said, called for appointments based on ability, not politics.

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