Marriage Equality Passes Rhode Island Senate Judiciary Committee

Rhode Island is set to join every other New England state in granting same sex marriage rights.

Today, the full Senate is expected to vote on 2013-S 38  SUB A (Nesselbush) and 2013-H 5015  SUB B (Handy) after the Senate Judiciary Committee voted out both bills yesterday by a vote of 7-4.

If passed by the Senate today, the bill would return to the House for another vote on the Senate amendments and then be forwarded to the Governor for his signature as soon as next week.

The law would take effect August 1, 2013.

 

Symposia: Money and Politics – Unholy Alliance or Free Speech? The Aftermath of Citizens United

Money and Politics – Unholy Alliance or Free Speech? The Aftermath of Citizens United

WHEN: April 25, 2013 7:00 pm

WHERE: Johnson & Wales University Yena Center Admissions Presentation Room 111 Dorrance Street Providence, RI

SPONSORS: ~Federal Bench/Bar Committee of the RI Bar Association ~The United States District Court for the District of RI ~Johnson & Wales University

Parking: Provided by Johnson & Wales University at its Pine Street parking lot, adjacent to Gaebe Commons. This flyer must be presented to the parking attendant.

The United States Supreme Court’s decision in Citizens United dramatically transformed the landscape of campaign finance and has sparked an impassioned national debate over money and elections. A rising tide of campaign spending, the emergence of Super PACs, the growth of undisclosed funding… Some observers view these developments as affirming the American tradition of rough and tumble speech and the free market of ideas. Others see looming corruption and a threat to the integrity of our political process.

Join us for an examination of the critical issues that have emerged from the sweeping changes wrought by Citizens United . How has Citizens United changed campaigns and campaign financing? What effects has it had on the political process? And what does it mean for future elections?

Speakers

ANTHONY CORRADO is Professor of Government at Colby College, where he teaches American politics and political theory. Widely regarded as one of the nation’s leading experts on political finance, Dr. Corrado is a Nonresident Senior Fellow of the Brookings Institution and serves as Chair of the Board of Trustees of the Campaign Finance Institute. He has authored or coauthored a number of books on campaign finance and elections.

PAUL S. RYAN is Senior Counsel at the Campaign Legal Center in Washington, D.C. Mr. Ryan has testified as an expert on election law before Congress and regularly represents the Campaign Legal Center before the Federal Election Commission and before state and municipal bodies around the nation. He has appeared as a campaign finance law expert on national news programs, and is quoted regularly by The New York Times, The Washington Post and other publications.

Moderators

MATTHEW T. OLIVERIO , a founding partner of Oliverio & Marcaccio LLP in Providence, concentrates in complex, civil and comm ercial litigation in state and federal courts in Rhode Island and Massachusetts. He is regularly engaged by members of the bar to serve as an arbitrator.

STEVEN M. RICHARD practices comm ercial and civil litigation in the Providence office of Nixon Peabody LLP. Mr. Richard handles trial and appellate work in federal and state courts in Rhode Island, Massachusetts, and Connecticut. He Co-Chairs the District Court’s Local Rules Review Committee and the Planning Committee for the Court’s 2013 District Conference.

Presiding Justice Gibney Appoints John F. McBurney III as Magistrate

This month, Superior Court Presiding Justice Alice B. Gibney appointed Pawtucket Municipal and Housing Court Chief Judge John F. McBurney III as Magistrate in the Superior Court.

McBurney, whose nomination requires approval by the Rhode Island Senate, would replace William J. McAtee, a well-respected jurist who most recently ran the trial calendar.

Sources indicate that McBurney’s nomination will sail through the Senate.  He served in the Senate for 36 years in addition to serving in private law practice for 33 years and serving as Chief Judge of the Pawtucket Municipal and Housing Courts for 8 years. He received his undergraduate degree from the University of Rhode Island and his law degree from Suffolk University.

“He has had a distinguished and successful career in the legal profession and in public service,” Presiding Justice Gibney said. “He has eight years of judicial experience and he is temperamentally suited for the magistrate’s position. I am familiar with his work ethic and look forward to having him as a colleague.”

I have had the privilege of working with McBurney at the State House as well with two of his children on several important initiatives.  He is a great selection who will make a terrific addition to the Superior Court.

Central Falls Bankruptcy Case starts to heat up.

The Providence Journal reports that the Receiver of Central Falls, former Supreme Court Justice Robert G. Flanders Jr., withdrew a motion that would have called the question of whether the Receiver can use bankruptcy powers to reorganize the city’s finances, contracts and claims.

That means the main legal event may have to wait until next month, when the city’s unions are expected to file their formal written challenges to Flanders’ bankruptcy filing.

At least one of them, the Fraternal Order of Police Lodge No. 2, indicated in a filing Tuesday that it plans a challenge.

“The order for relief may be entered only upon a determination that the debtor has demonstrated it was eligible to file the petition and that the petition was filed in good faith,” FOP lawyer Diane Finkle argued in her filing. “The debtor herein has yet to establish such eligibility in light of the opposition to its petition.”

Special bankruptcy Judge Frank J. Bailey has set Sept. 16 as the deadline for filing objections to the bankruptcy, along with affidavits to support those arguments.

But that is about two weeks after the time Flanders has said he hopes to have a fiscal reorganization ready for the court to approve. In the meantime, he and the unions continue to negotiate possible out-of-court agreements.

Flanders’ lawyer, Theodore Orson, has said Flanders believes he is acting correctly under the law and expects Bailey to agree. Lawyers for the unions have declined to speculate on how Bailey might rule or how a ruling might be implemented.

This will be a legal challenge that everyone will be paying attention to.

Rhode Island Mourns the Death of Joe Fernandez

Rhode Island was shocked to learn on Saturday night that former Providence city solicitor and candidate for Attorney General, Joe Fernandez, passed away – leaving his wife Emily and his two young daughters Coco and Phoebe.

Joe was a tremendous community leader, legal mind and generous human being.  The state and the nation mourn the loss of such a young and promising leader.

The Providence Journal had this:

President Obama on Sunday joined in mourning the death of Joseph M. Fernandez, the former Providence city solicitor and unsuccessful candidate for attorney general.

“I was shocked and saddened to learn today of the passing of my friend and colleague Joe Fernandez,” Obama said in a statement.

Fernandez, who was 46, died Saturday at Miriam Hospital after a short illness.

“From our time together in law school to his work as a dedicated public servant in Providence, I knew Joe as someone who had lived the American dream and was committed to protecting it for his fellow citizens,” the President said.

“He will be deeply missed. My thoughts and prayers are with Joe’s wife, Emily, and two young daughters in these most trying of times.”

In addition to being Obama’s law school classmate, Fernandez had served at co-chair of Obama’s presidential campaign in Rhode Island.

Services will be held at 11 a.m. on Thursday morning, December 23, at Central Congregational Church in Providence.

Calling hours will be held from 4 p.m. to 8 p.m. on Wednesday evening, December 22, at Monahan Drabble Sherman, 230 Waterman Street, Providence (Wayland Square).

Donations may be made to The Coco and Phoebe College Fund, c/o 286 Doyle Ave, Providence, RI 02906.

Sen. Sheldon Whitehouse & Others to Address “The Politics and Process of Judicial Confirmations”

The Rhode Island Lawyer Chapter of the American Constitution Society and Common Cause Rhode Island present:

The Politics and Process of Judicial Confirmations

The political process of judicial nominations can be puzzling. In recent years, the confirmation process often has bogged down and become more contentious with the result that many judicial vacancies in federal courts have remained unfilled for lengthy periods of time. Our distinguished panel will attempt to demystify the process, giving an insiders’ perspective on nomination hearings, the political struggles behind them and the details of the process in general.

With an address by:

The Honorable Sheldon Whitehouse
Senator (D-RI), United States Senate

Featuring:

• The Honorable Ernest C. Torres, Senior Judge, U.S. District Court for the District of Rhode Island
• David Fontana, Associate Professor of Law, The George Washington University Law School
• Jared A. Goldstein, Professor of Law, Roger Williams University School of Law
• Emily J. Sack, Professor of Law, Roger Williams University School of Law

And moderated by:

• Michael J. Yelnosky, Professor of Law, Roger Williams University School of Law

Monday, November 8, 2010
Reception: 6:00 p.m.
Program: 6:30 p.m.
The University Club of Providence
219 Benefit Street
Waterman Room
Providence, RI
RSVP by CLICKING HERE.

This event is free of charge.

Hors d’oeuvres and beverages will be provided.

Please note that attire is business casual. Men are required to wear collared shirts, and no denim is allowed.

Federal Lawsuit Seeks to End Master Party Lever in Rhode Island

The Providence Journal is reporting that Bob Healey, an independent candidate for lieutenant governor, filed a lawsuit in U.S. District Court Wednesday seeking to abolish the straight-party voting option on Rhode Island’s ballot for November and all subsequent elections.

Healey is one of 11 plaintiffs in the lawsuit, which names Governor Carcieri, A. Ralph Mollis, secretary of state, members of the state’s Board of Elections and the heads of the state’s Republican, Democratic and Moderate parties as defendants. Among the plaintiffs is Republican Warwick Mayor Scott Avedesian.

U.S. District Judge William E. Smith has set a hearing for Aug. 5 at 9 a.m.

The plaintiffs are alleging that Rhode Island’s continued use of the straight-party ticket option that records votes by optic scanning is unconstitutional and should be eliminated. “The use of the party lever in conjunction with optic scanning technology has created several discernable and distorted voting patterns,” the lawsuit alleges. “Using the optic scan ballot, no marks are visible as to the vote cast in each race. As a result, communities that hold nonpartisan elections demonstrate a marked decline in civic participation, showing that voters often fail to cast votes in nonpartisan municipal contests, mistakenly believing that the party lever has triggered votes in all races.”

Adult Loss of Consortium becomes Law in Rhode Island

Age is no longer a barrier for those seeking loss of consortium in Wrongful Death lawsuits in Rhode Island.

The General Assembly recently passed HB-7759 and SB-2469 and both bills became law on June 25, 2010 after Gov. Don Carcieri did not veto the legislation.  The legislation removes the age 18 cut-off for loss of consortium/society and companionship claims in wrongful death cases.

The amendment essentially removes the “unemancipated minor” language from all sections of RIGL 10-7-1.2, meaning that parents of adult children killed by a negligent act, as well as adult children of parents killed by a negligent act, will now have a claim for loss of society and companionship.

The bill was sponsored by Rep. Edwin Pacheco in the House and Sen. Michael McCaffrey in the Senate.

Judge: Ng Case May Move Forward

Rhode Island federal court Judge William E. Smith last week denied a motion to dismiss filed by the defendant United States of America in the case involving the tragic death of a detainee, Hiu Liu “Jason” Ng.

This case involves allegations of mistreatment and neglect of a federal immigration detainee, Hiu Liu Ng (“Jason”). Jason died of cancer, which was not diagnosed until just prior to his death. In the motion before the Court, the United States of America (“Defendant” or “United States”) moves to dismiss the Second Amended Complaint filed by Plaintiff Lin Li Qu (“Michelle” or “Plaintiff”) for claims arising out of her husband’s care while he was detained by Immigration and Customs Enforcement (“ICE”). The United States contends that the Court lacks subject matter jurisdiction to hear Plaintiff’s claims under the Federal Tort Claims Act, 28 U.S.C. § 2674, (“FTCA”) because Plaintiff did not comply with the required administrative notice provisions and Defendant did not waive its sovereign immunity with respect to the alleged wrongful conduct committed by its independent contractors. Defendant also argues that Plaintiff’s negligence claim fails to state a claim upon which relief can be granted. See Fed. R. Civ. Pro. 12(b)(6).

McConnell Voted Out of Senate Judiciary with Support from Sen. Lindsey Graham

Despite heavy lobbying by corporate America and their hired guns, John McConnell Jr., a nominee to the United States District Court for Rhode Island, advanced out of the Senate Judiciary Committee on Thursday, by a vote of 13-6.  McConnell received the support of one Republican: Sen. Lindsey Graham.

Business interests, including the Chamber of Commerce nominally opposed McConnell’s nomination because of McConnell’s role as a lead attorney representing the State of Rhode Island in a public nuisance lawsuit that sought to protect children from the toxic effects of lead-paint poisoning by suing lead-paint manufacturers.  The Alliance for Justice has produced a memorandum regarding McConnell’s involvement in the RI Lead paint case.

U.S. District Judge for the District of Rhode Island Nominee John J. McConnell, Jr.:

Memorandum on Rhode Island v. Lead Industries Association

Executive Summary:

Since the announcement of his nomination to serve as a United States District Judge for the District of Rhode Island, John McConnell has come under attack from the Chamber of Commerce for his involvement in State v. Lead Industries Association.1 In particular, he has been criticized for his role as a lead attorney representing the State of Rhode Island in a public nuisance lawsuit that sought to protect children from the toxic effects of lead-paint poisoning by suing lead-paint manufacturers. McConnell’s detractors claim that applying public nuisance doctrine to product manufacturers is somehow a radical departure from mainstream law. Nothing could be further from the truth – public nuisance is a doctrine lawyers have relied upon going back to the 12th century to address an array of public wrongs. Here, the State sought to provide redress for the thousands of Rhode Island children suffering from the effects of leadpaint toxicity caused by pervasive presence of lead-paint products.

Probation Reform Becomes the Law in Rhode Island

After five years of struggling, civil rights advocates won a huge victory when probation violation reform legislation became law on Saturday, June 12th.

The legislation – S-2225 – was sponsored by Senators Perry, Levesque C, Miller, Metts and Sosnowski.  The House version – H-7347 – was championed by Rep. David Segal.

In simple terms, the bill bans the state from keeping people in prison on probation violations for crimes that are never proven.

Makes sense, right?

Well, along with Alabama and South Dakota, Rhode Island had one of the worst probation violation laws in America.  Thus, a person serving probation who was charged with another crime was considered guilty of violating the terms of his or her probation, regardless of the outcome of any adjudication of that crime.

As a result, a person on probation could have been sent back to prison for the full length of his or her suspended sentence even if no conviction ever resulted from the second charge. Often, people accused of probation violations would plead to a lesser offense, even if they were innocent of the accusation that caused the violation, because being innocent of the crime that resulted in the probation violation was not a defense that would prevent them from going back to jail on the violation itself.

Thus, the bill now requires the dismissal of any probation violation or violation of a suspended sentence that is based on a new criminal charge for which the defendant is not convicted within a reasonable period of time, or is acquitted or dismissed.

Watch this video to see how this unjust law effected so many lives in Rhode Island.

This legislation had passed the General Assembly for each of the last two years but been vetoed by the governor each time.  The bill had also been annually opposed by Attorney General Patrick Lynch (but was supported by former Attorney General Jim O’Neil).

This legislation is a great step forward for Rhode Island.

Rhode Island had the most heavy-handed probation laws in the country.   Sentences are longer than average and it’s far easier than in most places to end up back in prison for a new offense.  Violation hearings are held before the trial, so defendants have little time to line up a real defense, and charges are adjudicated at the lowest standard of proof in our legal system. And then, even if you’re later found not guilty of the act that underpinned your violation, you were forced to rot in your cell with no recourse.

Now, thanks to Senator Perry, Representative Segal and a host of community advocates such as Open Doors and DARE, the system has approved and justice has prevailed.

This is what democracy looks like.

Hearing Set for Future of Central Falls Receiver

The Providence Journal reports that Superior Court Judge Michael Silverstein will conduct a hearing on Wednesday morning on the performance of Jonathan N. Savage as receiver for the City of Central Falls.

The city has short-term and long-term financial problems. The immediate one is a $3-million deficit in the current $17.8-million budget, projected to grow to $5 million next year.  The long-term problem is its police and firefighter pension fund, which, according to the city’s filing, needs about $35 million to be able to meet its expected retiree obligations. It has about $4 million.

Since his temporary appointment May 19, Savage has increased taxes 4.5 percent across the board and brought in consultants to recommend changes in the police and fire departments. The School Department is unaffected by the filing because it is financed by the state.  Savage has refused to speculate on what changes, either staffing or salaries or both, he may implement, but has said he was expecting the police and fire consultants would come up with “substantial” savings.

No Deportation for Victim of Police Brutality, Luis Mendonca

The Providence Journal reports that a U.S. Immigration Court judge has ruled that there is insufficient cause to deport Luis Mendonca, the Cape Verdean national who allegedly was assaulted while handcuffed by a Providence police detective in a highly publicized incident recorded by a surveillance camera.

Judge Brenda O’Malley Tuesday ordered Mendonca freed, but he was immediately turned over to the custody of Massachusetts authorities to face a misdemeanor criminal charge by the North Attleboro, Mass., police.

Mendonca, 21, whose last known address was in Central Falls, was being held Wednesday in the Suffolk County, Mass., House of Correction pending a state court appearance, according to one of his lawyers, John P. Garan.

The U.S. Bureau of Immigration and Customs Enforcement had asked the immigration court to order Mendonca’s removal from the United States due primarily to a Rhode Island shoplifting conviction. Mendonca has lived in the U.S. since he was 8 years old and, under federal law, is a lawful permanent resident alien.

Besides the pending North Attleboro case, Mendonca also was convicted of having assaulted two Rhode Island School of Design security officers during the incident on Oct. 20, 2009 in which Mendonca allegedly was brutalized. Mendonca has appealed that conviction in Rhode Island Superior Court.

Lessig Testifies in Support of Constitutional Convention in Rhode Island General Assembly

Yesterday, the House Judiciary Committee of the Rhode Island House of Representatives heard testimony on H-8186 a Joint Resolution introduced by Rep. David Segal and co-sponsored by Representatives Fierro, Ajello, Lima and Handy.

One of the foremost American public intellectuals on the Internet and Democracy – Harvard Law Professor Lawrence “Larry” Lessig – came to Rhode Island to testify in support of the Joint Resolution.  He is the founder of Creative Commons and author of “Code,” “The Future of Ideas,” and “Free Culture.”

I interviewed Lessig about his testimony and about his mission to remove the influence of money from politics through CallAConvention.org.  Watch the interview here.

The last state to sign onto the Bill of Rights, Rhode Island – if it passes H-8186, could become the first state to call for a Constitutional Convention in an effort to break Congress’ dependence on special interest money.

The text of the Joint Resolution is as follows:

WHEREAS, The Supreme Court of the United States has recently reinterpreted the Free Speech Clause of the First Amendment to grant corporations an unlimited right to spend corporate funds on independent political advertisement; and

WHEREAS, Such a change will only increase the already pathological dependence that members of Congress have upon private funds to secure their election to Congress and the election of their party; and

WHEREAS, This dependence has already weakened American democracy; and WHEREAS, Article V of the United States Constitution gives state legislatures the power, if two-thirds agree, to call for a convention to propose amendments to the United States Constitution; now, therefore be it

RESOLVED, That this General Assembly hereby respectfully directs Congress to direct such a convention to consider amendments to reverse the Supreme Court’s decision, and remedy the dependence that currently debilitates American democracy; and be it further

RESOLVED, That this General Assembly further respectfully directs Congress to direct such a convention to only consider amendments explicitly referenced by at least forty percent of the states calling for a convention, thereby limiting the potential scope of such a convention; and be it further

RESOLVED, That this General Assembly hereby expressly rejects any amendment proposed by such a convention that is not explicitly referenced by at least forty percent of the states calling for a convention; and be it further

RESOLVED, That the Secretary of State be and he hereby is authorized and directed to transmit duly certified copies of this resolution to the President of the United States, the Speaker of the United States House of Representatives, the presiding officer of each house of each state legislature of the United States, and to each member of this state’s Congressional delegation.

Lessig’s call for a Constitutional Convention is certainly timely in the wake of the Supreme Court’s ruling on the Citizens United case.  While getting 34 state legislatures to call for a federal constitutional convention might seem like a difficult task, getting Congress to limit campaign contributions is astronomically more difficult.

To join the movement to call for a Constitutional Convention, click here.

Judge orders new trial for Alexandra Svoboda

Superior Court Judge Joseph F. Rodgers Jr. Friday ordered a new trial for Alexandra Svoboda on three counts of simple assault against North Providence police officers during a protest in August 2007.  The Providence Journal has the full story:

Rodgers said he did not feel convinced beyond a reasonable doubt that Svoboda had assaulted the officers by striking them with drumsticks during the protest, despite a jury’s finding last week that she was guilty on all three counts.

Rodgers did, however, let stand the jury’s verdict that 25-year-old Svoboda had resisted arrest while picketing Jacky’s Galaxie on Mineral Spring Avenue that hot August day.

…Svoboda’s friends and family, many of whom sat through the six-day trial, greeted the verdict with hugs and tears. She declined to discuss the case, but said, “I’m just happy that my friends and family are here with me to celebrate.”

Terrence Livingston, who prosecuted the case for the state attorney general’s office, said he would discuss with the North Providence police whether to appeal the ruling.

…Rodgers, who is handling cases in his retirement, ordered Svoboda to pay a $100 fine for resisting arrest.