Judge Smith Throws Out Part of RI Election Law

In a recent decision, Block v. Mollis, Judge William E. Smith ruled that part of our State’s election law is unconstitutional.

In a case brought by the Moderate Party of RI and its representative, Kenneth Block, Judge Smith held valid the RI law requiring that a third-party obtain signatures equal to 5% of the voter turnout in the previous election.  Judge Smith, however, held unconstitutional the provision of the law that requires the political party to wait until January 1 of the election year to obtain the signatures they need to get on the State ballot.

The ruling eases some of Rhode Island’s ballot access laws which are among the toughest in the country.  The moderate party website includes a graph indicating just how tough it is to get on the ballot in Rhode Island (i.e. only three States in the country require signatures equal to 5% of the prior voter turnout.)

This is a victory for anyone who desires a more open electoral process, including smaller political parties.  While such parties will still need to obtain a great number of signatures, they will have a longer period of time to obtain them.

Majority of Rhode Islanders Support Marriage Equality

Today’s Providence Journal headline is a great one:

Here are the precise answers from the Brown University poll:

Would you support or oppose a law that would allow same-sex couples to get married?
Support 60%; Oppose 31%; DK/NA 9%

Would you support or oppose a law that would allow civil unions for same-sex couples?
Support 75%; Oppose 17%; DK/NA 8%

Now, the question is whether the General Assembly will listen to the will of the majority and allow the marriage equality bill to come to a floor vote.  Legislators constantly point to other New England states when making arguments for public policy.  Now, will Rhode Island follow its neighbors in CT, MA, VT, NH and ME in supporting marriage equality?

Answering my own question, here is the reason why:

[RI Democratic Party chairman Bill] Lynch, who is considering a run for state attorney general, said that his support for same-sex marriage is not shared by the party leadership, specifically House Speaker William Murphy.

Barrington Homeowners Sue Town over Property Valuations

According to the Providence Journal, attorney William Landry filed a lawsuit in Providence Superior Court this week on behalf of over 400 Barrington homeowners who are requesting that the court throw out the property valuation assessments performed by Vision Appraisal and return to the 2008 valuations.  The suit names the the Town Council, the tax assesssor, the town manager and the finance director.  The group that leads the litigation, Barrington for Equitable Taxation, claims that the new valuations contain numerous errors and do not reflect the recent downturn in the real estate market.

SCOTUS Overturns Michigan v. Jackson

The ACS Blog reports on more big news out of the SCOTUS yesterday:

The U.S. Supreme Court today overturned precedent on the rights of criminal suspects in custody. In a 5-4 ruling, the high court overturned a 1986 case that barred police from interrogating suspects after they requested a right to counsel. Writing for the majority in Montejo v. Louisiana, Justice Antonin Scalia said the 1986 ruling on Sixth Amendment right to counsel provided suspects only “marginal benefits.” Justice John Paul Stevens, who wrote the 1986 majority opinion in Michigan v. Jackson, filed a dissent in Montejo. Stevens said the majority’s decision “can only diminish the public’s confidence in the reliability and fairness of our system of justice.”

Justice Stevens, in an unusual move, read his dissent aloud from the bench.  This rare move might be attributed to the fact that the Michigan v. Jackson opinion was written by Justice Stevens, the only current justice who was on the court at the time.  Here’s the beginning of his scathing dissent:

JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, and with whom JUSTICE BREYER joins, except for footnote 5, dissenting.  Today the Court properly concludes that the Louisiana Supreme Court’s parsimonious reading of our decision in Michigan v. Jackson, 475 U. S. 625 (1986), is indefensible.Yet the Court does not reverse. Rather, on its own initia-tive and without any evidence that the longstanding SixthAmendment protections established in Jackson have caused any harm to the workings of the criminal justice system, the Court rejects Jackson outright on the groundthat it is “untenable as a theoretical and doctrinal mat-ter.” Ante, at 6. That conclusion rests on a misinterpreta-tion of Jackson’s rationale and a gross undervaluation ofthe rule of stare decisis. The police interrogation in thiscase clearly violated petitioner’s Sixth Amendment right to counsel.

Obama to Nominate Sotomayor to Supreme Court

Well, it looks like our #1 pick on our likely SCOTUS Justice nomination list will be nominated by President Barack Obama today. Several news organizations are reporting that President Obama will nominate federal appeals Judge Sonia Sotomayor for the Supreme Court on Tuesday, making her potentially the first Hispanic to sit on the nation’s highest court.

If confirmed by the Senate, Sotomayor, 54, would succeed retiring Justice David Souter. Two officials described Obama’s decision on condition of anonymity because no formal announcement had been made.

Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.

A formal announcement was expected at midmorning.

If you would like to bypass the spin and read Judge Sotomayor’s appellate opinions directly, click here to read Sotomayor’s key opinions on the 2nd Circuit:

Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.  To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.  In those two cases (and likely the third), Sotomayor’s opinion was rejected by the Supreme Court’s more conservative majority and adopted by its more liberal dissenters (including Justice Souter).  Those outcomes suggest that Sotomayor’s views would in many respects be similar to those of Justice Souter.

Join me in clicking here to stay informed by the Alliance for Justice in their “Count Me In” campaign to ensure that Judge Sotomayor gets a fair confirmation hearing. Here’s AFJ director Nan Aron:

We are thrilled with this choice.  Sonia Sotomayor will be a strong voice to uphold the Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, regardless of wealth, status, or popularity.

President Obama has nominated a highly qualified candidate with a compelling personal story and outstanding educational credentials.  Furthermore, the president is making history by nominating the first Latina to the Supreme Court.  Judge Sotomayor has more federal judicial experience than any justice nominated to the Supreme Court in the past 100 years.

Judges make a huge difference in our lives. Courts protect our air and water, hold corporations accountable, ensure equal opportunity and fair pay, and safeguard our personal freedoms.

This nomination shows that President Obama is appointing judges who understand that the role of the courts is to give everyone a chance to be heard, to stand up for their rights, and get justice.

7 Candidates Interview for RI Superior Court Vacancy

Yesterday, the Judicial Nominating Commission interviewed seven candidates for a seat on the Superior Court bench after the March retirement of Judge Mark A. Pfeiffer.  The Commission was supposed to interview eight candidates, but current US Attorney Robert Corrente withdrew his name in a letter to commission Chairman Stephen J. Carlotti, according to the Providence Journal. Here are the 7 candidates who interviewed with the JNC (in alphabetical order):

• William J. Ferland - Assistant Attorney General

• John R. Gowell Jr. – attorney with Burns & Levinson LLP

• Rebecca Tedford Partington – deputy chief of the Civil Division, Attorney General’s office

• Brian P. Stern – Governor Carcieri’s chief of staff

• Brian Van Couyghen -a General Assembly lawyer and former state prosecutor

• Stacey Pires Veroni -  chief of the Criminal Division, Attorney General’s office

• Stephen R. White – private practice and South Kingstown probate judge

Kennedy and Kerry Recommend Carmen Ortiz for US Attorney in MA

In the wake of Rhode Island’s Senators recommending Peter Neronha for the US Attorney position in Rhode Island, Massachusetts’ Senators have now made their recommendation public.  From the Boston Globe:

Carmen M. Ortiz, who grew up poor in New York City’s Spanish Harlem neighborhood and became a state and then a federal prosecutor in Massachusetts, is poised to become the first woman and the first Hispanic US attorney in the state.

US Senators Edward M. Kennedy and John F. Kerry recommended yesterday that President Obama nominate Ortiz, the daughter of Puerto Rico natives, to the highest federal law enforcement position in the state.

“It’s a tremendous challenge, but I think one that I’m prepared to take and I’m prepared to meet,” the 53-year-old Milton woman said in a brief telephone interview. “I feel very grateful, and I’m humbled by the senators’ confidence in me.”

Ortiz has worked in the US attorney’s office in Massachusetts for the past 12 years and did two stints for about 10 years as a prosecutor in the Middlesex district attorney’s office. She has had a variety of other professional experience, including helping the National Football League in 1990 to investigate allegations by a Boston Herald reporter of sexual harassment against members of the New England Patriots.

The senators, who picked Ortiz from among three finalists recommended by a committee that vetted candidates, said she was a “standout throughout this process.”

“We believe that her prosecutorial experience, commitment to public service, and insight into criminal justice issues will make her an exceptional United States attorney,” they said in a joint statement. “She has lived the American dream, worked hard for every accomplishment she’s achieved, and will ensure that the US attorney’s office for Massachusetts is a leader in our community and around the country.”

Fire Causes Closing of Attleboro District Court

Attleboro District Court will be closed for a week after an early morning blaze damaged some of the building and possibly some of the court’s files. The AP has the story.

Firefighters were alerted to the blaze by an alarm company at about 6:30 today morning. The Sun Chronicle of Attleboro reports the damage is estimated at about $500,000. No one was hurt. Deputy Chief Glenn Livesey says the fire was contained to one office, with some water and smoke damage to other parts of the building. A spokeswoman for the state court system says court business will be transferred to Taunton District Court for the week. Jurors scheduled to report to Attleboro this week should not report for juror service. The cause is under investigation.

This is a good local example of the importance of backing up your files!

Toobin v. Roberts

Supreme Court author Jeffrey Toobin takes Chief Justice John Roberts to task in the current New Yorker:

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

…After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

Emphasis added.  Read Toobin’s entire, well-researched and well-written article here.

MA District Court Survival Guide: Civil Practice

The MA Bar Association has a great CLE Seminar this Tuesday from 4pm to 630pm called District Court Survival Guide: Civil Practice It is being held at the Western New England College School of Law, 1215 Wilbraham Road, Springfield

This seminar is designed to educate practitioners on the fundamentals of civil litigation in the district courts of Massachusetts. Panelists will discuss preparing cases for trial, motion practice and trials and appeals.  The panelists include the following:

• Robert S. Murphy Jr., Esq., program chair, Bacon / Wilson PC, Springfield
• Richard C. Morrissey, Esq., First Assistant Clerk-Magistrate, Springfield District Court, Springfield
• Hon. William P. Hadley, Greenfield District Court, Greenfield
• Michele A. Ouimet-Rooke, Esq., Doherty, Wallace, Pillsbury & Murphy PC, Springfield

Rhode Island Superior Court Addresses Juror Tweeting

As we have previously written, juror use of new technological tools like Twitter, Facebook and Google have been causing havoc in courtrooms around the country.  Kudos to Superior Court presiding Judge Joseph Rodgers for issuing a new policy that addresses this issue.

Judge Joseph F. Rodgers Jr. can rattle off what he’s told jurors at the end of a day of testimony for the last three decades.

Don’t discuss the trial. Or form any opinions. Or read, listen to or watch the news.

One day, Rodgers, Superior Court presiding justice, looked around and realized things were changing. Judges elsewhere were declaring mistrials over jurors conducting Google searches, updating Facebook, and using something called Twitter in courts from Philadelphia to England.

“The fact is young people now, because of their training, their lifestyle, they’re much more intelligent than we old folks are in terms of accessibility and what info can be retrieved instantaneously,” he said. “That does present a serious problem.”

Until now, Rhode Island took jurors at their word that they wouldn’t talk about the case or conduct outside research. But on May 4, Rodgers handed out a revised juror policy to Superior Court judges, one that puts the emphasis on technology and eliminates some of the wiggle room left before by the technology gap.

Another Wrong Site Surgery in Rhode Island

Tragic news from Hasbro Children’s hospital.

A surgeon on Monday began operating on the wrong part of a child’s mouth during surgery to correct a cleft palate at Hasbro Children’s Hospital, the fifth wrong-site surgery in Rhode Island since 2007.

The error was noticed during surgery and the correct procedure then performed, “with good results,” Dr. Timothy J. Babineau, president of Rhode Island Hospital, of which Hasbro is part., said in a statement. “The patient is in good condition and we do not anticipate any further complications related to this error,” he said.

The hospital apologized to the patient and the family. It also placed the surgeon and the surgical team on administrative leave after a preliminary investigation found that “at least one of our standard policies was not followed,” Babineau said.

Thankfully, medical negligence attorneys are holding doctors accountable for cases of medical negligence such as this.  If you have been unfortunate enough to have been a victim of a surgical error, such as wrong-site surgery, you should consider speaking with a medical negligence attorney about your rights.  Further, if you have an upcoming surgery, there are several steps that you can take to protect yourself:

1. Ensure that your hospital follows the 2004 Universal Protocol issue by the Joint Commission, the national agency that accredits hospitals: (a) before you start to operate, verify that you are doing the right procedure on the correct part of the right patient;  (b) mark the site of surgery ahead of time; and (c) take a “time-out” right before surgery to make sure everything is in order.
2. Ask that the surgical team frequently asks you questions requiring an active response, including name and procedure with site and/or side – especially prior to sedation.
3. Ensure that two or more surgical team members are assigned to perform an independent verification and reconciliation of the schedule, consent, and history and physical.
4. Ensure that the surgical staff is educated regarding the site of the surgery and ensure that the mark is visible when you are prepped, draped, positioned, and during the time out.
5. Ensure that the site is marked unambiguously (with a skin marker, not a ballpoint pen) and in agreement with your understanding of the procedure.

The Pennsylvania Patient Safety Authority has much more information worth reviewing here.

Reed and Whitehouse Recommendation of US Attorney: Neronha

Bypassing the Democratic Party chairman and a former Obama classmate and fundraiser, US Senators Jack Reed and Sheldon Whitehouse have announced they have recommended that President Barack Obama nominate current Assistant U.S. Attorney Peter F. Neronha to be the next U.S. Attorney for Rhode Island.

“Peter Neronha is a veteran prosecutor and a dedicated public servant.  He is a true professional.  His exemplary service in the U.S. Attorney’s office and the state Attorney General’s office has earned him respect across the board from the law enforcement and legal communities.  We are confident Mr. Neronha will be an exceptional U.S. Attorney and that he will do an outstanding job of serving and protecting the people of Rhode Island,” said Reed and Whitehouse.

According to the press release, Neronha has served as an Assistant United States Attorney for the District of Rhode Island since 2002.  He currently works in the criminal division prosecuting drug, organized crime, and public corruption cases.  Mr. Neronha also heads the Project Safe Neighborhoods Initiative, which helps bolster law enforcement initiatives against gun crimes and prevents young people from turning to a life of violence.  Prior to becoming a federal prosecutor, Mr. Neronha served from 1996 to 2002 as the Assistant Attorney General of Rhode Island where he also worked in the criminal division.  He practiced law as a civil litigator at Goodwin Procter, LLP from 1989 to 1996.   He graduated in the top 10 of his class from Boston College and also graduated Magna Cum Laude from Boston College Law School.

As with the recent judicial recommendations, the Senatorial recommendation to the President for US Attorney is only a recommendation and ultimately the President nominates a candidate who must then be confirmed by the U.S. Senate.

15 Possible Supreme Court Nominees for President Obama

SCOTUS blog has a detailed look at the retirement of Supreme Court Associate Justice David Souter, his legacy, a timeline for a possible replacement and a list of possible nominees from the Obama administration.

Given my premise that qualifications are extremely important – i.e., that the President will want to pick someone who stacks up evenly with the Chief Justice and Justice Alito – a truly shocking surprise is very unlikely. The number of people who have the horsepower and reputation to truly deserve a Supreme Court appointment is pretty small. My most recent post on this speculation is here, and I don’t have much to add to it. (The President and I don’t talk as often as we should.) I said then that “[t]he three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.” Governor Granholm subsequently said she was not interested, but you never know. Through all his Chicago ties, including to the University of Chicago Law School, the President will be very familiar with Judge Wood’s reputation for brilliance. The President also knows Elena Kagan (who has her own Chicago ties) and the Administration will be very conscious of the fact that General Kagan is ten years younger and has the reputation from Harvard of working very well and persuasively among an ideologically diverse group.

In adding speculation from the Huffington Post, the New York Times, the LA Times, the AP, the Wall St. Journal and Salon.com, here are the top 15 candidates who might be nominated to replace Souter (in order of likelihood):

1. Sonia Sotomayor (Second Circuit)
2. Diane Pamela Wood (Seventh Circuit)
3. Elena Kagan (Solicitor General)
4. Hillary Clinton (Sec. of State)
5. Kim McLane Wardlaw (Ninth Circuit)
6. Leah Ward Sears (Chief Justice of the Georgia Supreme Court)
7. Jennifer Granholm (Gov. of MI)
8. Janet Napolitano (Sec. of Homeland Security)
9. Pamela Karlan (Stanford Law School)
10. Kathleen Sullivan (former Dean, Stanford Law School)
11. Teresa Wynn Roseborough (former DoJ)
12. Merrick Garland (DC Circuit)
13. Ruben Castillo (District Court Judge, Chicago)
14. Caroline Kennedy
15. Carlos Moreno, CA Supreme Court Justice

Unquestionably, the vetting and announcement of a possible SCOTUS justice is both a huge challenge and an incredible opportunity for a President in his first year.

Negligence Regarding Slip and Fall Cases on Ice and Snow in Rhode Island

In a decision released today – Carlo P. Berardis v. Bounthinh Louangxay, et al, No. 08-184 (May 12, 2009), the RI Supreme Court affirmed a summary judgment in favor of the defendants and reiterated that Rhode Island follows the “Connecticut Rule” regarding the duty of a landowner or business owner in the natural accumulation of ice and snow on their property.

This rule, as we apply it, provides that a landlord or business invitor owes a duty to a tenant or business invitee “to use reasonable care to see that the common areas are kept reasonably safe from the dangers created by an accumulation of snow and ice which is attributed to purely natural causes.” Id. at 772, 279 A.2d at 440 (adopting the Connecticut Rule in the landlord-tenant context); see also Terry v. Central Auto Radiators, Inc., 732 A.2d 713, 716 (R.I. 1999) (extending rule to business invitor/invitee relationship). The landlord or invitor, however, must be afforded “a reasonable time after the storm has ceased to remove the accumulation.” Benaski, 899 A.2d at 503 (quoting Fuller, 108 R.I. at 774, 279 A.2d at 441). Therefore, as a general rule, any duty to clear a natural accumulation of ice and snow is not triggered before a reasonable time after the storm ends. Id. Under unusual circumstances, however, the duty to remove the accumulation may arise before the end of the storm. Terry, 732 A.2d at 717.

The Court held that the fact that the incident occurred at the entranceway to the premises did not justify departure from this rule.  The Court also concluded that the plaintiff failed to demonstrate that any unusual circumstances existed in the case that would have required the defendants to clear the entranceway of ice and snow before the end of the storm.  The Court reasoned that the plaintiff failed to point to any conduct by the defendants that exacerbated or increased the risk naturally occurring during a winter snowstorm, which the plaintiff voluntarily undertook when he patronized the restaurant and bar.

NOTE: The “Connecticut rule” is to be distinguished from the so-called “Massachusetts Rule,” which provides that a landlord has no legal obligation to remove the natural accumulation of snow and ice from common areas.