An Egregiously Missed Opportunity: Guest MINDSETTER™ Geoff Schoos
Guest MINDSETTER™ Geoff Schoos
An Egregiously Missed Opportunity: Guest MINDSETTER™ Geoff Schoos
Recently I wrote about the importance of the diversity of judges in the Rhode Island courts with particular focus on potential nominees for the Rhode Island Supreme Court.
At the time of that article, there was just one vacancy on the Court due to Justice Indeglia’s retirement. But shortly thereafter, another vacancy occurred thereby changing the calculus of who the governor might nominate for senate approval of now two nominees to the Court.
In my prior article, I stated that representation on the bench, reflecting the diverse Rhode Island population, matters. On September 5, I wrote:
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTToo many of our fellow Rhode Islanders are relegated to the fringes of society. They feel at the mercy of institutions which, at best, treat them like fungible cogs in a labyrinthian machine. This not only strips their spirit but their humanity.
This is what Robert Kennedy called the Violence of Institutions, and about which I wrote that the courts are too often seen committing a silent violence against those whose humanity has been stripped away.
Diversifying the court system, especially at its highest level, would send a signal to those often ignored by the broader society that they too count.
Raimondo's Nominations & Ramifications
On December 8, the governor nominated two women to the Court, one a person of color. If both are confirmed by the senate, the Rhode Island Supreme Court will be majority female.
These nominations are groundbreaking on many levels. A third nominee to the Family Court, is also a woman and would be the first Latina to serve on the Family Court. Representation matters. These nominees represent change, but change has to be more than symbolic.
There is one nominee that I do question. Erin Lynch Prata is currently but soon to be an ex-state senator. During her last term she chaired the Judiciary Committee, a powerful job in a powerful committee, indicating how tight she was with the senate president.
When the first Court vacancy opened, upon applying to the Judicial Nomination Commission, Lynch Prata declared that she was leaving the senate at the end of her term and sought an Advisory Opinion from the Rhode Island Ethics Commission.
In an Opinion not found on the Commission’s website because it doesn't exist (a curiosity for a Commission dedicated to ethics and transparency), the Commission, contrary to the Commission’s legal staff’s recommendation, found by a vote of 5-2 that Senator Lynch Prata would not violate the state’s Revolving Door statute.
R.I. Gen. Laws § 36-14-5 and 520-00-00 R.I. Code R. § 1.5, simply put, states that when an elected official leaves office, he/she must wait one year before accepting another paid government position. In essence, this statute and code prohibit serving in any paid state position unless the Commission finds that a denial of approval would result in an undue hardship to the state agency, board, or commission.
And that’s where Lynch Prata had them. The Court is not a state agency, board, or commission. In a seam in the law, courts are not specifically mentioned. Thus, she was able to argue that the Revolving Door regulations didn’t apply in her case. Let’s not lose sight of the fact that statutes are written by legislators, perhaps for their benefit. After all, Lynch Prata isn’t the first, and unless the seam is closed, won’t be the last, legislator to ascend to the high court. When all was said and done, Lynch Prata thought and acted as a legislator, a political actor, solely focused on her own agenda.
Let me be clear about something. Nothing – nothing – she did was wrong. The question is not what she did that bothers me, rather it’s whether she has the requisite judicial temperament to sit on the state Supreme Court. And keep in mind that if Lynch Prata is confirmed (and really, is there any doubt?) and some years later litigation challenging the structure and content of this statute makes it to the Supreme Court, she would either have to recuse herself or possibly be seen as having a conflict of interest, the very thing the statute seeks to avoid.
And if a broader public interest is sacrificed in pursuit of a compromise, so be it. There’s always next year. Thinking like a legislator is fine if you’re a legislator. A legislator sets an agenda and pursues her goals, all presumably in the public’s interest. On the other hand, if the goals of marginalized members of the public, people without political influence or power, don’t match the legislator’s goals or interferes with her pursuit of her goals and agenda, then tough luck. See you next year.
I know this firsthand. As you may know, I formed and operated a non-profit legal services organization. Formed in 2008 prior to the recession and through its entire existence, funds were tight to come by. In late 2013, I came upon the idea that if court fees were minimally raised and the proceeds were directed to my organization, we’d have a stable income stream to continue our operations serving low- and modest-income people.
As it happened, when I inquired of people who a good senator would be to approach to sponsor my legislation, Erin Lynch’s name was top of mind. She had successfully sponsored similar legislation on behalf of another LSO some four years earlier.
We first met at her office in November 2013. She was engaged and seemed motivated to help, even going so far as to brainstorm people to speak with and the potential formation of a strategy to move the bill. At the conclusion of our meeting, she said she’d be in touch “soon.”
To this day I am waiting for the phone call or email. I’ve written about this in Access To Justice On The Outskirts Of Hope, so I won’t belabor the details here, and I invite the curious reader to give the book a look. For purposes of this discussion, I never heard from her. Numerous emails and phone calls went unanswered. When I stopped by her State House office, she was unavailable, and messages left with her secretary went unacknowledged.
She eventually submitted the legislation but when it came time for a hearing where, as sponsor, she was to introduce me, she barely remembered who I was and what the legislation was for.
I later was told via a third party that she only agreed to submit the bill, not to advocate for it. She stated that she had her own legislative priorities. That we weren’t a priority was a distinct departure from the zeal she expressed the previous November.
And that’s okay, I get it. However, if she were going to talk the talk, I had a right to expect that she’d walk the walk. She didn’t, which was bad enough, but she never contacted me to tell me to look elsewhere for zealous advocacy for our bill. She stonewalled us, sacrificed our interests, and those of our vulnerable clients, and that goes to character.
By the way, it wasn’t merely our LSO that suffered by her inaction, but the people we served, those marginalized at the edges of society who too often feel the violence of institutions that Kennedy spoke of.
Need for Commission
This brings me to one final point. Since 2013, Rhode Island has allegedly been working on the formation of an Access To Justice Commission. I have previously written about this on this site and in my book. To date, we do not have such a commission and the future looks bleak that we will ever get one.
The formation of a Commission requires real leadership from the pinnacle of the judiciary, leadership that has been profoundly lacking. Would a Justice Lynch Prata be an agent for change, expanding necessary legal services to those living on the margins of Rhode Island society? Who knows, but if past is truly prologue, I wouldn’t bet the house money on her being a change agent.
Yale law professor John Hart Ely wrote that too often judges think like legislators. That should not come as a surprise given that many judges are former legislators. There’s a sameness about them that sometimes gets in the way of the Court’s two primary functions as formulated in Democracy and Distrust: the courts should assure majority governance while protecting minority rights.
While I have no doubt that her judicial philosophy will maintain the majority structure of governance, less clear is whether she would be even remotely receptive to minority rights.
And that’s why I’d rate this nomination an egregiously missed opportunity.
His most recent book, "Access to Justice on the Outskirts of Hope," is now available online and can be found on his website here.