Tuesday, January 19, 2010

Selection of magistrates overhaul sought

By Katie Mulvaney

Journal Staff Writer
PROVIDENCE — For nearly a decade, Rep. Donna M. Walsh has sponsored a bill that would hold court magistrates to the same selection process as state judges.

Her goal, she says, is to ensure that magistrates are chosen based on their skills and qualifications, not their connections to Rhode Island’s political establishment.

Her refrain: magistrates earn virtually the same $100,000-plus salaries and perform many of the same duties as judges and therefore should be subject to a merit-based selection process voters created for judges in 1994.

“They really are judges,” said Walsh, a Charlestown Democrat. “It’s a political-patronage system. Judges can use it to award their people.”

Walsh first took aim at magistrate selection as a member of the Senate Judiciary Committee in 2000, sponsoring legislation to change the confirmation process after seeing a flood of magistrates. It wasn’t politically popular at the time, she says, because then-House Speaker John Harwood’s wife, Patricia Lynch Harwood, had just been appointed Superior Court magistrate. It remains unpopular today.

“I’m beginning to think I am the only one concerned with this issue,” Walsh said last Wednesday, a day after again submitting the bill.

The number of magistrates has swelled from 2 in 1990 to 20 today. The posts, often stepping stones to judgeships, come with a $131,866-base salary, 10-year life, and many of the same powers as judges, such as presiding over arraignments, motions and sentencing in uncontested cases. They do not hear trials, and their ranks have grown to include the Senate Judiciary Committee chairman’s sister and staff members of key state lawmakers.

Walsh’s bill would take the appointing authority for magistrates away from the Superior Court presiding justice, Family Court and District Court chief judges and the Supreme Court chief justice. Magistrates, instead, would be selected in the same manner as judges.

As the process stands now, an opening is posted. The head of the respective court then selects a candidate to fill the vacancy without disclosing who is in the running. The Senate votes on whether to approve the selection.

Rhode Islanders voted to revamp the judicial nominating system in 1994 after the resignation of two chief justices amid scandal. The changes included the creation of an independent, nonpartisan Judicial Nominating Commission to ensure judicial selections based on merit, not politics. The commission vets candidates and forwards a list of finalists to the governor. The governor has 21 days to submit a nominee to the state Senate for approval.

Critics say the current magistrate selection process bucks the merit-based selection voters backed more than 15 years ago.

“It undermines confidence in the integrity of the bench, and that’s really all the bench has,” said Michael J. Yelnosky, a professor at the Roger Williams School of Law.

Supreme Court Chief Justice Paul A. Suttell, who took the helm in July, is supportive of merit-based selection, but sees no great problems with the existing system, court spokesman Craig N. Berke said. The JNC, if able to take on magistrate selection as well, may be the appropriate body for the task, he said.

Suttell said he believes careful consideration should be given to the ultimate appointing authority for magistrates — whether it is the governor or the chief judges of the various courts, Berke said. At a minimum, Suttell wants the chief judges to participate in the selection process because they are the most familiar with the specific needs that magistrates fulfill, such as drug court or the truancy and child-support calendars, he said.

JNC Chairman Dr. Herbert J. Brennan declined to comment on the magistrate selection process. But, he said, “I am confident that the commission could ramp up to carry out the added responsibilities of vetting magistrates.”

Common Cause Rhode Island and Operation Clean Government, both longtime backers of similar efforts, support the measure. But even supporters recognize the challenges ahead. It will take, Yelnosky said, a scandal to embarrass or motivate lawmakers to change the system.

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