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.

Former House Majority Leader Seeks Early Release

By Katie Mulvaney

Journal Staff Writer

Martineau

PROVIDENCE — Former House majority leader Gerard M. Martineau wants to be released from prison and he’s relying on a Superior Court decision that found the state Constitution protects legislators from prosecution based on their votes or other legislative activities to make his case.

Martineau argued in a motion filed last Friday in U.S. District Court that Superior Court Judge Francis J. Darigan’s decision to dismiss ethics charges against former Senate President William V. Irons supports a reduction in his federal prison term. Darigan ruled last fall that the Ethics Commission couldn’t prosecute Irons based on his legislative activities because of the “speech-in-debate” clause in the state Constitution.

The “intervening change of law is ideally situated” to his case, Martineau wrote, representing himself.

His crime, Martineau said, “lays squarely in his failure to file a conflict-of-interest [report] based upon actions he took while in his official capacity and therefore are legislatively privileged.” He acted in the scope of his duties and should be afforded the same protection of the speech-in-debate clause, he said.

Martineau is seeking immediate release, according to Thomas Connell, spokesman for U.S. Attorney Robert Clark Corrente’s office. Connell declined to comment further.

Martineau was the second Rhode Island legislator to go to prison in Operation Dollar Bill, the long-running federal corruption probe of influence peddling at the State House.

He pleaded guilty in 2007 to a $911,400 corruption scheme in which he sold plastic bags to the pharmacy giant CVS and Blue Cross & Blue Shield of Rhode Island — including payment for 8 million Blue Cross bags that didn’t exist. In return, Martineau acted favorably on legislation for the companies. He was sentenced to 37 months in prison last March for two counts of depriving the state of honest services.

Martineau, 50, of Woonsocket, served in the House of Representatives from 1987 to 2002, acting as majority leader his last four years in office.

Martineau said he accepts full responsibility, but argues his relationship with CVS predated his legislative career and that prosecutors miscalculated the loss his actions caused the state. He requested that the court lower the calculation from $911,400 to “Nil” or alternatively $195,400, and reduce his sentence.

In addition, the former legislator cited an impeccable prison record in Fort Dix, N.J. He is being considered, he said, for the position of town driver, “the most coveted employment position available.” He regularly attends Mass and other religious-study programs, mentors inmates and participates in a softball league. He anticipated a May 2010 release, but asked that he be reunited with his family sooner, particularly his 14-year-old son.

The Rhode Island Ethics Commission has asked the state Supreme Court to overturn Darigan’s decision regarding Irons, arguing it throws into question the commission’s authority with respect to legislators. The Rhode Island Supreme Court will hear arguments May 13.

Irons, an insurance salesman, abruptly resigned on Dec. 31, 2003, after two decades in the state Senate. He had opposed pharmacy-choice legislation that CVS, the pharmacy giant and a company that he had sold insurance to, wanted killed.

The Journal disclosed that Irons, then chairman of the Senate committee that handled health care, had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross policy covering CVS workers in Rhode Island.

The Ethics Commission found probable cause that Irons broke the code of ethics by using his public office to financially benefit his business associate, CVS. 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. Darigan accepted Irons’ arguments.

John Marion, executive director of the government watchdog group Common Cause Rhode Island, said he didn’t think Martineau’s argument would hold much weight since it referenced a state court decision, though the case was brought against him in federal court.

Common Cause, too, objects to Darigan’s ruling. “We think there is potential this could hamstring the Ethics Commission in all its dealing with legislators,” Marion said. “We’re hopeful it will be overturned.”

kmulvane@projo.com

6 on Judgeship Panel Serving Under Expired Terms

By Katie Mulvaney

Journal Staff Writer

Most members of the commission that helps name state judges are serving years past their expired terms, raising criticism that the lack of fresh blood could be politicizing the judicial selection process.

“The longer you have someone in, the greater the chance someone would be tempted to make an appointment not based on merit but on political connections,” said state Sen. James C. Sheehan, D-North Kingstown.

Sheehan plans to submit legislation today to change the law that governs the Judicial Nominating Commission so its nine members will no longer serve beyond their one-term limit. He is backed by the government watchdog group Common Cause Rhode Island.

“I think one can wonder what it means that it’s not revolving,” said Alan S. Flink, a former commission member who sits on the Common Cause board. If members weren’t performing as legislators wanted, they wouldn’t remain on the commission, he said.

The concerns come as the commission begins the process to select semifinalists for Governor Carcieri to consider for five openings on the state bench, including the Supreme Court chief justice post. More judges who have lifetime appointments, some with full pensions, are expected to retire if Carcieri succeeds in ending 3 percent annual pension hikes.

Rhode Islanders voted to revamp the judicial nominating system in 1994 after the resignation of two chief justices amid scandal. The changes called for the creation of an independent, nonpartisan commission to ensure judicial selections based on merit, not politics.

The law dictates that members serve four-year terms, but that they “shall continue” to sit until their successor is appointed.

State leaders have leaned on that language in explaining why some members have remained as long as seven years past their term. And that’s what Sheehan hopes to change.

“There is nothing in the statute that mandates a time frame for new appointments,” said John Robitaille, the governor’s communications director. In addition, the governor has not received lists of possible replacements from House and Senate leaders, he said.

By law, the governor appoints all commission members. Legislative leaders, however, must submit names for five of those positions. The House speaker and the Senate president have responsibility for one seat each and another together. The House and Senate minority leaders, too, have a single seat each. The governor alone names the remaining four members and selects the chairman.

Six members are now serving beyond their expired terms. The most outdated is that of William P. Rampone, a Providence lawyer picked as a candidate by former House Speaker John B. Harwood in 1999. His term was up in 2002.

Rampone, 53, defends his continuing service, arguing the commission benefits from his familiarity with the lawyers who apply for judgeships and his knowledge of the courts. “That’s why I’m asked to stay, as a resource,” he said.

He bristles at suggestions he might be at all beholden to legislators. “I did no bidding for John Harwood or [House Speaker] Bill Murphy. Both of them are hands-off,” Rampone said.

He dismisses criticism as “nice theories that have no water. … Nobody’s put any pressure on me at any time.”

Rampone said he plans to step down after the commission finishes its work selecting candidates for five judgeships this year.

Solomon A. Solomon, 83, has served five years past his term. Also a Harwood pick with then-Senate Majority Leader William V. Irons, Solomon did not return a phone call seeking comment.

Chairman Stephen J. Carlotti’s term ended in June. A Carcieri appointee, Carlotti, 66, said he told the governor he is willing to step down whenever his successor is named.

He cautions that losing several members at one time could hinder the group’s work because five votes are needed to forward recommendations to the governor. He said he had never seen evidence that members were being unduly influenced. “I think the commission is working very hard to fulfill its statutory obligations,” he said.

The only three commission members serving within their term limits were selected solely by Carcieri: Dennis Coleman, Mirlen A. Martinez Mal and Carol June Tow. It is the second time a governor named Tow to the commission; she served from 1997 to 2001. The law was changed last year to ban reappointments.

House Speaker Murphy said in a statement yesterday there is a dire need for judges to be appointed, with a total of seven vacancies on the state bench.

The commission made recommendations for two of those seats last summer, but Carcieri has not made appointments, despite a state law directing him to do so within 21 days.

Murphy praised Rampone and Solomon’s experience and service on the commission.

“With so many vacancies, I don’t think it would be prudent to submit new names for the Judicial Nominating Committee to the governor at this time,” he said.

Senate President M. Teresa Paiva Weed said in a statement she is reviewing candidates to find appropriate, qualified replacements. She lauded the Senate’s appointees.

But Common Cause argues the only way to ensure that the process is free of politics and viewed as open to lawyers, other than probate judges, magistrates and other politically connected attorneys, is to make sure it rotates.

“The whole issue of judges seems to be radioactive on Smith Hill,” said John Marion, executive director of Common Cause. “It’s a place people get rewarded for loyalty.”

kmulvane@projo.com

High Court Sets Hearing Date on Irons' Ethics Case

By: Maria Armental

PROVIDENCE, R.I. (AP) -- The Rhode Island Supreme Court has set a date of May 13 for hearing arguments in the dismissed ethics case of a former state Senate president.

William V. Irons (right) was accused by Operation Clean Government, a government watchdog group, of a conflict of interest by working to defeat bills affecting pharmacies while earning commissions as a broker for a CVS employee health insurance policy.

But Superior Court Judge Francis Darigan threw out the ethics complaint last fall, saying the state Constitution protected lawmakers from being prosecuted for their votes.

The Ethics Commission appealed Darigan's decision to the Supreme Court.

Katherine D'Arezzo, a commission prosecutor, said the court will hear the case on May 13. The commission plans to file court papers next month.

Irons, an insurance salesman from East Providence, abruptly resigned Dec. 31, 2003, after two decades in the Senate. He had opposed pharmacy-choice legislation that pharmacy giant CVS, a company to which Irons had sold insurance, also opposed.

The Journal later disclosed that Irons, while chairman of the Senate committee that handled health care, had collected hundreds of thousands of dollars in commissions since 1997 on a Blue Cross policy covering CVS workers in Rhode Island.

The Ethics Commission found probable cause to believe that Irons broke the code of ethics by using his public office to financially benefit his business associate, CVS. The next step would ordinarily have been a trial-like hearing before the commission. Irons, however, went to court in a successful attempt to block the commission prosecution.

-- With staff reports

An earlier version of this posting incorrectly identified the group that filed the ethics complaint against William V. Irons.

Bill Aims to Bring New Blood to Judge Selection

By Katie Mulvaney

PROVIDENCE, R.I. - Most members of the commission that helps name state judges to the coveted lifetime posts are serving years past the expiration of their terms, raising criticism that the lack of fresh blood could be politicizing the judicial selection process.
"The longer you have someone in, the greater the chance someone would be tempted to make an appointment not based on merit but on political connections," said state Senator James C. Sheehan, D-North Kingstown.

Sheehan plans to submit legislation Tuesday to change the law that governs the Judicial Nominating Commission so its nine members will no longer serve beyond their one-term limit. He is backed by the government watchdog group, Common Cause Rhode Island.

"I think one can wonder what it means that it's not revolving," said Alan S. Flink, a former commission member who sits on the Common Cause board. If members weren't performing as legislators wanted, they wouldn't remain on the commission, he said.

The concerns come as the commission begins the process to select semifinalists for Governor Carcieri to consider to fill five openings on the state bench, including the Supreme Court chief justice post. More judges are expected to retire if Governor Carcieri succeeds in ending 3-percent annual pension hikes to cut state spending.

Rhode Islanders voted to revamp the judicial nominating system in 1994 after the resignation of two chief justices amid scandal. The changes called for the creation of an independent, nonpartisan commission to take ensure judicial selections based on merits, not politics.

The law dictates that members serve four-year terms, but that they "shall continue" to sit until their successor is appointed.

State leaders have leaned on that language in explaining why some members have remained as many as seven years past their term expirations. And that's what Sheehan hopes to change.

"There is nothing in the statute that mandates a time frame for new appointments," said John Robitaille, the governor's communications director. In addition, the governor has not received lists of possible replacements from House and Senate leaders, he said.

By law, the governor appoints all commission members. Legislative leaders, however, must submit names for him to choose from for five of those positions. The House Speaker and the Senate President have responsibility for one seat each and another together. The House and Senate minority leaders, too, have a single seat each. The governor alone names the remaining four members and selects the chairman.

Six of the nine members are now serving beyond their expired terms. The most outdated is that of William P. Rampone, a Providence lawyer picked as a candidate by former House Speaker John B. Harwood in 1999. His term was up in 2002.

Rampone, 53, defends his tenure, arguing the commission benefits from his familiarity with the lawyers who apply for judgeships and knowledge of the courts. "That's why I'm asked to stay, as a resource," he said.

He bristles at suggestions he might be at all beholden to legislators. "I did no bidding for John Harwood or (House Speaker) Bill Murphy. Both of them are hands off," Rampone said.

He dismisses criticism as "nice theories that have no water. ... Nobody's put any pressure on me at anytime."

Rampone plans to step down after the commission finishes its work selecting candidates for five judgeships this year, he said.

Solomon A. Solomon, 83, has served five years past his term expired. Also a Harwood pick with then Senate Majority Leader William V. Irons, Solomon did not return a phone call seeking comment.

Chairman Stephen J. Carlotti's term ended last June. A Governor Carcieri appointee, Carlotti, 66, said he told the governor he's willing to step down whenever his successor is named.

He cautions that losing several members at one time could hinder the group's work because five votes are needed to forward recommendations to the governor. He said he had never seen evidence that members were being influenced. "I think the commission is working very hard to fulfill its statutory obligations," he said.

The only three commission members who fall within their term limits were selected solely by Carcieri: Dennis Coleman, Mirlen A. Martinez Mal and Carol June Tow. It is the second time a governor named Tow to the commission; she served from 1997 to 2001. The law was changed last year to ban reappointments.

House Speaker Murphy said in an email statement today there is a dire need for judges to be appointed with seven total vacancies on the state bench. The commission made recommendations for two of those seats last summer, but Carcieri has not made appointments, despite a state law directing him to do so in 21 days.

Murphy praised Rampone and Solomon's experience and service on the commission. "With so many vacancies, I don't think it would prudent to submit new names for the Judicial Nominating Committee to the governor at this time," he said.

But Common Cause argues the only way to ensure that the process is free of politics and viewed as open to lawyers, other that probate judges, magistrates and other politically connected attorneys is to make sure it commission membership rotates.
"The whole issue of judges seems to be radioactive on Smith Hill," said John Marion, executive director of Common Cause. "It's a place people get rewarded for loyalty."

kmulvane@projo.com / (401) 277-7417

RI Lawmakers Ignore Tansparency Amid Annual Rush

By Ray Henry

PROVIDENCE, R.I.—State lawmakers ignored transparency guidelines during their chaotic final week last year when legislators suspended their own rules, met in marathon sessions and hurriedly passed reams of legislation, according to a study being released Friday.

The annual report by Secretary of State A. Ralph Mollis measures whether legislative committees adhere to the state's open meetings law, which is voluntary for the General Assembly but mandatory for other government agencies.

Under the law, government officials must publicly advertise their meetings and post an agenda 48 hours in advance. Committee hearings are particularly vital in the General Assembly because they allow the public a chance to testify about legislation before it goes to the House or Senate floor.

"That's one of the best things about our government," Mollis said. "People can come and speak on any issue, but they can only do so if they're provided with enough advance notice."

House committees adhered to the standards set in the state's open meetings laws during 87 percent of their meetings, a slight increase over last year, according to the report. Senate committees scored a 90 percent for the second straight year.

When then-Secretary of State Jim Langevin first measured lawmakers in 1997 by the same transparency standards they applied to others, the House Finance Committee scored a 39 percent.

"I think it's a step in the right direction," Mollis said.

But nearly every violation last year occurred during the week of June 15, when lawmakers scrambled to end their year. Rhode Island's part-time lawmakers typically adjourn in mid- to late-June, although nothing in state law prevents them from meeting over the summer, which could give lawmakers more time to alert the public before votes.

Legislative leaders describe the frantic end as a fact of life.

"In the last few days, there are just so many bills that fly back and forth between the two chambers," said Larry Berman, a spokesman for House Speaker William Murphy. Some items require immediate action or involve changes to bills that were already debated and adopted.

Berman said the quick pace does not allow for two days notice before every committee hearing.

"We'd be here all summer," he said.

Openness typically takes a backseat during the annual rush to pass the state's budget in June, normally just before the start of the fiscal year in July. Lawmakers use some bills as bargaining chips during the fierce budget debate, while other legislation simply languishes until money problems are resolved.

The chaos makes it easy for lawmakers to make mistakes or mischief with little scrutiny, said John Marion, executive director of Common Cause Rhode Island, a nonpartisan government watchdog group.

"Many of the most important decisions are made in the eleventh hour," Marion said. "And it happens so quickly that no one can protest."

When asked about the flood of bills on the last day of last year's session, Murphy paraphrased a saying attributed to former German Chancellor Otto von Bismarck. Laws are like sausages, Murphy told a reporter, and it's ugly watching either being made.

Removing the Taint from R.I. Elections

By: EDWARD ACHORN

THE NEWS isn’t all bad out there. As part of a burgeoning, bipartisan reform movement, two freshman legislators, one a Democrat and one a Republican, are teaming up to help move Rhode Island beyond a corrupt legacy of machine politics. They want the sort of healthier elections, leading to healthier governance, that better-run states enjoy.

Representatives Michael Marcello (D.-Scituate) and Brian Newberry (R.-North Smithfield) submitted a bill this month to finally end straight-ticket voting, sometimes called the “master lever” — the system, banned in most states, that permits voting purely on the basis of party up and down the ballot by drawing a single line, rather than properly requiring citizens to actually vote for a candidate to put him or her in a position of power.

Needless to say, this reform effort has the support of the state’s leading good-government and watchdog groups, including Operation Clean Government and Common Cause. Representative Marcello argues that the reform would have no effect on the balance of power in the state, but it would remove the taint that now surrounds Rhode Island elections.

“It has cheapened the victories of those of us who have won, and made people think they were somehow or other not legitimate,” said Representative Marcello.

The House Judiciary Committee considered the bill last week, and “held [it] for further consideration.” There’s no word yet on whether House Speaker William Murphy (D.-West Warwick) and Senate President Teresa Paiva Weed (D.-Newport) will do the right thing, and support reform. But both have won praise in the past for displaying courage and independence — Speaker Murphy in helping put separation of powers on the ballot; President Paiva Weed in supporting a cap on the growth in local taxes.

Let’s face it: Rhode Island could desperately use some reform in how it handles elections.

As most honest observers acknowledge, the master lever is a morally bankrupt system, designed to put parties above the public interest, and to stifle the spirited opposition that is the lifeblood of a healthy democracy. Rhode Island is one of only 16 states that perpetuate this racket. Shamefully, Secretary of State Ralph Mollis is among the old-time pols opposing this reform.

The lever tends to slaughter independents or candidates from the smaller parties in races for legislative or municipal offices. When people have to vote for an actual human being to elect someone, candidates have a fighting chance to make their case. Straight-ticket voting tends to create dangerously lopsided legislatures, where power cannot be effectively restrained or challenged. It also undermines democracy by depressing competition in elections. People do not want to run for office when they enter the contest with a built-in disadvantage that may equal hundreds or thousands of votes.

It is a big reason one party now controls 91 percent of the General Assembly, something even labor leader George Nee acknowledged is unhealthy for democracy. As I have long argued here, nothing works better to promote ethics in government than competitive elections; and nothing makes politicians more eager to serve special interests than the knowledge their record will go unchallenged.

The politicians of most other states are decent enough people to understand that party is not everything — that, in the long run, it is better for representative democracy and their posterity to have relatively fair elections. In any event, they believe that hard work, message, organization and money should be enough to decide an election, without even more sharply tilting the playing field against members of minority parties and independents.

Edward O’Neill, of Lincoln, co-sponsor of the Senate companion to the Marcello-Newberry bill, knows something about the steep mountain in front of independent candidates. He toppled Senate President Joseph Montalbano last November, but it was not easy. Mr. Montalbano had a built-in advantage of 2,105 votes from the master lever — most of those voters, surely, more interested in putting Barack Obama in the White House and Jack Reed in the U.S. Senate than in propping up an ethics-challenged local legislator.

As Mr. O’Neill notes, a whopping 35 percent of Mr. Montalbano’s 5,980 votes came from the master lever. As an independent, Mr. O’Neill received not one vote from that system. He had to earn every one of his 6,773 votes himself.

He won, in part, because of the cloud over Mr. Montalbano. But other independents and minority-party candidates got swept away last November when the system did precisely what it was designed to do: give the dominant party a huge advantage.

Undoubtedly, Democrats are the more popular party in Rhode Island. But they hardly constitute 91 percent of the voter registration. Indeed, the biggest single block of voters are unaffiliated. They vote for the person, not the party.

It is encouraging that there are young politicians, from both major parties, who want to move Rhode Island out of the sewer and into the sunlight of healthier elections. In a year when so much else is going wrong, here is something that the leadership of the General Assembly could easily put right.

Citizens should call their legislators now and ask them to support the bills removing the master lever.

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