The most recent meeting of the state Senate, with pols sitting in auditorium chairs using iPads to cast their votes, looked more like a university debate club than a session in the storied Smith Hill chamber. After a five-month pause, legislators met offsite to allow adequate separation. The Senate convened in Rhode Island College’s Sapinsley Hall on December 18 — socially distanced, masked-up and required to make the long stroll to sideline podiums to speak their minds.
One result of the session is that Rhode Island is now set to join 11 other states that have women majorities on their Supreme Courts, after the Senate overwhelmingly approved Governor Gina Raimondo’s pair of nominations to fill the top judicial vacancies during the special session, broadcast live on Capitol TV.
Now, the former Senate Judiciary Chairwoman Erin Lynch Prata and Superior Court judge Melissa Long will secure lifetime appointments to the five-member court of last resort (Rhody is the only state in the union where justices are not “retired” by term or age limits).
Normally for observers, the (rightful) top story during the senate debate over the vacancies would be the appointment of Long, who will take her place as the first person of color to don the supreme judicial robe since the court’s founding in 1747.
But this is Rhode Island. And nothing worth doing happens without a bit of controversy.
For those who weren’t following, Justice Gilbert Indelgia retired from the bench last June, followed by Justice Francis Flaherty announcing in October that he too would be stepping down. Lynch Prata, the Warwick Democrat, announced in the spring she would not seek reelection and expressed public desire to fill Indelgia’s seat on the state’s highest bench (Prata also served on the Senate Committee on Rules, Government Ethics and Oversight).
Lynch Prata and Long received the nod from Raimondo on December 8, who said the judicial cohort will be “high-caliber judges who reflect the diversity of the Rhode Islanders they serve.”
As for Lynch Prata, concerns had been raised over the propriety, or legality, of a state legislator moving directly from the State House chamber to a Benefit Street judgeship.
Some history: Looking to shake off a well-deserved appearance of Rhode Island as a mecca of corrupt political favoritism and inside dealing, the General Assembly enacted new laws in the early ’90s that, among them, prohibited elected officials from working in state government for one year after leaving office, colloquially called a “cooling off” period. (Apparently, 12 months eliminate one’s juicy political connections, and best friends become strangers.)
Seeking an exemption from the rule, Lynch Prata asked for an opinion from the state’s Ethics Commision, who, defying their in-house counsel position, announced in June that everything was ethically and legally copacetic. Groups like Common Cause disagreed, with director John Marion saying he was “sickened” by the ethics panel vote.
Unsurprisingly, the opinion also drew a rebuke from the state Republican Party.
A draft advisory opinion released by RIEC dated June 2 stated, “a sitting member of the Rhode Island Senate, a state elected position, is prohibited by the statutory and regulatory ‘revolving door’ provisions of the Code of Ethics from seeking or accepting a potential appointment to the Rhode Island Supreme Court.” If Lynch Prata had waited a year to seek the appointment, then the issue would have been moot. Either way, the commission ignored the staff advice and allowed the nomination to move forward. The vote was 5-2.
Having received the go-ahead from the House of Representatives on December 16, the last hurdle in Lynch Prata’s journey to the court was acquiring a two-thirds majority vote by the Senate. During a two-hour debate — interrupted briefly by another historic first, Senate President Dominick Ruggerio reminding colleagues to keep their iPads charged up, lest they be relegated to masked-up voice votes — senators made their case for or against her ascendency.
It should be noted that no one questioned her qualifications for the job. By all accounts Lynch Prata is a stellar lawyer, legislator, colleague, friend, mentor and public servant. She has decades of litigation experience and the support of Raimondo and democratic leadership.
Prata was a prime mover or sponsor of a host of successful legislation, such as the Uniform Parentage Act and the minimum wage increase. She was also credited by colleagues for her work to get The Protect Rhode Island Families Act passed, which requires convicted domestic batterers (or those with final protective orders against them) to surrender their firearms.
What emerged during the debate were two seemingly irreconcilable legal views that hinged on the interpretation of “constitutional office.” Supporters of the appointment contend that a Supreme Court seat is like an elected position spelled out in the constitution; opponents see it as a “state agency” job, the kind the ethics law was meant to prohibit.
And while the end tally was overwhelmingly in support (30-5), the unconvinced used their time to warn against what they see as a dangerous precedent, the term “precedent” appearing to refer to a permanent change to norms only put in place less than 30 years ago (Rhode Island is known for its unique political vocabulary).
Sen. James Sheenan (District 26, North Kingstown) reiterated his opposition to Lynch Prata’s appointment during the December 18 session, praising her experience while worrying about the future of ethics in state government. He suggested legislators consider tightening the statute for better clarity.
“I would beseech you to consider one way to provide a fix to the revolving door ethics code,” he said. “In the future, we may not be so lucky.”
Outgoing Sen. William Conley (District 18, East Providence) gave a passionate defense of Prata, calling the notion that Supreme Court seats are not a constructional office “ridiculous” and a “rhetorical sleight of hand.” To deny the appointment could lead to “chaos and tyranny,” he added.
On the Republican side, Senator Jessica de la Cruz (District 23, Burrillville, North Smithfield) worried about the near-term ramifications. Certain recent and controversial legislation Lynch Prata was involved with, such as the “Red Flag” gun law, is likely to be challenged before the court. What then?
“When you have a Republican senator and a left leaning group [in opposition] then maybe there is some merit to the argument,” she said.
Senator Sam Bell (District 5, Providence), who has been publicly outspoken against the approval, called it “a move away from our ethical principles.”
“I think that the precedent that we set here today is a precedent that we [should] limit,” he said.
With so much on Smith Hill’s plate in the upcoming session, chances are there will be legislation introduced to prevent not only the “revolving door,” but a political Slip ‘N Slide from the legislature to the judiciary. Or maybe not.
“I’d like to see this revolving door jammed,” said Sheehan. “[This could be] a recipe for scandal or corruption.”
Smithfield Senator Stephen Archambault dismissed these arguments with a rhetorical flourish. He thinks the controversy may lead to a stigma against public service.
“There are so many red herrings going around,” he said. “I feel like I’m in a fish market.”