The Providence Phoenix This Just In

JUDICIAL DISCRETION
The collapse of Operation Clean Government's well- intentioned plan to honor Justice Robert G. Flanders of the Supreme Court
BY IAN DONNIS

It seemed like a good idea at the time. Operation Clean Government (OCG) wanted to recognize Justice Robert G. Flanders Jr. of the Rhode Island Supreme Court, a favorite of reform groups because of his dissenting opinions, and Frank J. Williams -- who has pursued an unusually high-profile approach since becoming the court's chief justice earlier this year -- seemed like a natural choice as the keynote speaker for the event. Flanders and Williams thought it was a worthy idea, too, and Operation Clean Government moved ahead with plans for the November 12 dinner and award presentation at the Crowne Plaza Hotel in Warwick.

The event began to fall apart, though, when Williams sent an October 17 letter to Robert P. Arruda, Operation Clean Government's chairman, stating that he would be unable to take part in the dinner because of a potential conflict of interest. The letter cited the presence of two cases involving OCG before the Supreme Court, "and he felt constrained in speaking before our group because of that," Arruda says.

Informed of the situation by Williams, Flanders looked into the matter. He was unable to find any pending Supreme Court cases in which Operation Clean Government was named as a litigant. Flanders says he subsequently learned that one case, having to do with Traffic Court fines, involved an OCG official named Lee Blais and that some of his expenses in the matter were paid by OCG. The other case -- in which Arruda is one of three plaintiffs and OCG has paid for some minor costs -- is not even before the Supreme Court, having been remanded for trial to Superior Court.

Flanders felt compelled to seek an opinion from the Advisory Committee on the Code of Judicial Conduct -- a five-judge panel --- and the committee unanimously advised him not to attend the Operation Clean Government dinner. The panel's explanation, he says, was that justices should not attend an event sponsored by, or receive an award from, a group that is before the court as a litigant, either directly or through its members. Although he very much regretted it, Flanders says, the committee's opinion and Williams's withdrawal from the dinner led him to conclude that it would not be appropriate to participate in the OCG event.

Operation Clean Government expected more than 400 people to attend the dinner -- tables of 10 had been purchased, among others, by the Rhode Island Bar Association and Roger Williams Law School -- but the group canceled the event after Williams and Flanders indicated they wouldn't be able to take part. The cancellation, which was announced in a brief statement on November 7, has gone unreported in the Providence Journal.

Although judges are obviously expected to take pains to avoid any appearance of impropriety, the situation has left Arruda wondering whether there is an inconsistency in the chief justice's decision not to take part in an event sponsored by OCG, which defines its mission as improving the functioning of government in Rhode Island. The Rhode Island Trial Lawyers Association -- whose members appear before the Supreme Court -- recognized Williams in September as one of the group's Citizens of the Year, for example, and on October 16, the chief justice was honored during a fund-raiser held by the Community Mediation Center of Rhode Island.

The question of why one such event is appropriate and another is not "is raising some serious questions that we'd like to have answered," says Arruda. He says OCG wants to examine the written opinion, expected to be released later this month, by the Advisory Committee on Judicial Conduct, and he'll probably seek to discuss the issue with Williams. "I recognize it is better to err on the side of caution," says Arruda, "but it does bring into question . . . if they can't receive [recognition] from one group, they shouldn't receive it from any group."

Williams didn't immediately respond to a request for comment as the Phoenix was going to press. John Goodman, spokesman for the chief justice, says Operation Clean Government's involvement in financing litigation before the Supreme Court represents a clear distinction from the other two examples. "I'm unaware of litigation that the Trial Lawyers Association, as an entity, is funding before the courts," Goodman says, and the mediation group is not believed to be involved in any litigation before a judge.

While justices are allowed, even encouraged, to participate in events devoted to the improvement of the law, Goodman says, the judicial canon indicates that "acceptance of public testimonial or gift incident is acceptable only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation."

Operation Clean Government, of course, has been highly critical of some members of the judiciary, filing complaints, for example, against Robert F. Arrigan, chief judge of the Workers Compensation Court. Although Arruda doesn't dismiss the possibility that the group's outspokenness may be a factor in the situation, he's more inclined to give the benefit of a doubt to Williams -- a perceived ally in efforts to improve Rhode Island's courts. And while OCG's desire to recognize Flanders was clearly sincere and well intentioned, it's not entirely surprising that the group's citation became controversial.

Still, Arruda believes that OCG was in the clear in inviting Flanders and Williams to take part in the $25-per-person dinner, an event, he says, that would have been a money-loser for the organization. The OCG chairman says three lawyers didn't anticipate any problems with the award after reviewing the canon of ethics. Although the two cases with the slight connection to OCG weren't discussed when the invitation was extended to Flanders, "we discussed the possibility of there being an ethical dilemma or any kind of ethical problem," Arruda says. "We did not get into details of any cases. Justice Flanders let me know he was aware that Operation Clean Government frequently litigated. I left it at that. I wanted to keep all discussions on litigation entirely separate." Flanders didn't perceive any difficulty as long as the event was not a fund-raiser, Arruda says

The first indication of problems came when Arruda received on October 18 a letter from Justice Maureen McKenna Goldberg of the Supreme Court, saying she would not be able to attend the OCG dinner because of the two cases which, she said, were before the court. The letter from Williams came the next day. It was after this that Arruda provided a detailed account of the two cases to Flanders.

In his letter, Williams offered his regrets and indicated that the cases "raises the issue of whether a justice of this or any court can speak before a group that is party to litigation before that court, and, if so, whether that judge must recuse when the matter is assigned for hearing." Closing with a characteristic reference to a quote by Abraham Lincoln -- "We are controlled by events" -- Williams said he was therefore constrained from speaking at the OCG event.

Williams, a former Superior Court judge who succeeded Joseph Weisberger as chief justice in February, has struck a highly public profile in the job, using the office as a bully pulpit to call for better funding and promote greater understanding of the courts. He hired Goodman, a longtime former spokesman for the late John Chafee, and in an usual step, according to the Providence Journal, Clark B. Curtis, Governor Lincoln Almond's former director of legislative affairs, will become the first-ever paid lobbyist for the state's judiciary.

Some observers, such as H. Philip West Jr., director of Common Cause of Rhode Island, believe judges should remain isolated from the political process and are troubled by the way in which Williams wrote an op-ed piece earlier this year, published in the Providence Journal, which West described as a "public invitation for the Ethics Commission to fire [then-director] Marty Healey." Adds West, "It has often been said that judges should rule in their opinions and otherwise be silent. And I think that's my view."

Goodman defends Williams's decision to write the op-ed, saying it was spurred by a Journal editorial concerning Healey's decision to hire an out-of-state attorney to practice in Rhode Island, and the suggestion that the Supreme Court justices who had recused themselves from the matter were trying to influence the case. While other issues likely influenced Healey's dismissal, Goodman says, "The chief justice felt strongly that that wild accusation required a response, and when no one else from the Rhode Island bar, area law schools, or anyone else, seemed compelled to set the record straight, the chief justice took it upon himself to defend the honor of the court."

Healey and Williams, of course, have offered conflicting accounts of their conversation about the hiring of this out-of-state lawyer, but that's a whole other story.