Background and History
The 1980s and the early 1990s in Rhode Island were a time of extraordinary turmoil in general and in the state’s unified court system in particular:
- In 1986 Supreme Court Chief Justice Joseph A. Bevilacqua, a former speaker who engineered his 1976 election as chief justice, resigned to avoid impeachment over his connections to organized crime figures.
- In 1988 Bevilacqua’s replacement, Family Court Judge Thomas Fay, hired House Speaker Matthew Smith to be the high court’s clerk and the administrator of the entire court system. Smith had engineered Fay’s election as chief justice.
- In 1988 Fay persuaded the General Assembly to establish the position of magistrate in Superior Court and then appointed Representative Anthony Carnevale to the position. Carnevale had been the House floor manager for Fay’s campaign to become chief justice.
- During Fay’s and Smith’s tenure at the head of the court system, court payrolls and personnel mushroomed. Fay became one of the highest paid chief justices in the country.
- In 1993 and 1994, Fay and Smith were both tried and found guilty of an array of offenses connected with their abuse of their offices. Fay was convicted of felonies and lost his state pension. Smith was convicted of misdemeanors and thus kept his pension.
- Also in the early 1990s, Superior Court Judge Antonio Almeida was tried and convicted of soliciting and accepting bribes from an attorney trying cases in his court. Almeida served a jail sentence.
Merit Selection Established
In 1994, after a bitter struggle, RIght NOW!, a coalition of public interest groups that included Common Cause Rhode Island, succeeding in winning passage of an amendment to the Rhode Island Constitution containing important judicial reforms. RI Const. Art. X § 4 and RIGL 8-16.1 govern judicial selection.
Henceforth, all judges, including Supreme Court justices, would be appointed through the merit selection process administered by an independent, non-partisan Judicial Nominating Commission (JNC).
Merit selection requires that court vacancies be advertised and that JNC solicit applications from qualified persons; that JNC advertise and hold public hearings on the qualifications of semi-finalists it selects; that it send the names of at least three but not more than five finalists to the governor; that the governor nominate one of the finalists for the vacant position; and that the Senate confirm or reject his appointment. The small list of finalists is designed to force JNC to be selective in its choices. A larger list would allow JNC to include names of candidates with inferior qualifications but stellar political connections, precisely the result that merit selection is designed to prevent.
The amendment ended the centuries-old system of the election of Supreme Court justices by the General Assembly. However, the governor’s nominees to the high court would have to be confirmed by both Houses of the General Assembly, rather than just the Senate. The requirement for confirmation by both chambers perpetuates one undesirable feature of the old election system in that it allows the House to control appointments to the court. In 1996, as a demonstration of its power to do just that, the House rejected Governor Lincoln Almond’s nomination of United States Attorney Margaret Curran, a highly regarded appellate lawyer, to the state Supreme Court.
All hard-won reforms are subject to attack as soon as they take effect. Merit selection is no exception. In 2007, Governor Donald Carcieri sought and gained passage of a statutory amendment allowing him to pick names for current court vacancies from JNC lists up to five years old. (2007 PL Ch. 120 and Ch. 220.) This weakens merit selection by expanding the pool of potential nominees way beyond the former limit of three to five names.
Magistrates Not Covered by Merit Selection
The 1994 constitutional amendment creating merit selection did not include magistrates. This is not surprising. In 1994, there were only five magistrates throughout the court system: two in Superior Court, two in Family Court, and one in District Court. Since 1994 and the establishment of merit selection, however, there has been an explosion of magistrate appointments. In 2008, 19 individuals serve as magistrates throughout the court system: five in Superior Court; two in District Court; nine in Family Court; and three in the Traffic Tribunal. While subject to annual amendment, these are the statutes governing the appointment of magistrates:
- Superior Court administrator-magistrate: § 8-2-11.1
- Superior Court general magistrate: § 8-2-39
- Superior Court special magistrate: § 8-2-39.1
- Superior Court drug court magistrate: § 8-2-39.2
- District Court administrator/clerk-magistrate: § 8-8-8.12
- District Court clerk-magistrate: §§ 8-8-16.1 & 8-8-16.2
- Family Court magistrates: § 8-10-3.1
- Family Court general magistrate: § 8-10-3.2
- Traffic Tribunal chief magistrate & magistrates: § 8-8-2.1
In 2007 the General Assembly enacted statutes which standardize the appointment of magistrates as follows:
- All magistrates will be appointed by the chief or presiding judge of their courts with the exception of Traffic Tribunal, which has a newly created chief magistrate. Appointments of Tribunal magistrates will be made by the Supreme Court chief justice.
- All magistrates will serve 10-year terms.
- All magistrate appointments will require Senate confirmation.
- Magistrates may be reappointed for successive 10-year terms subject to Senate approval.
The flaws in this appointment system are obvious. Two require comment:
- The public has no knowledge of or participation in the appointment of magistrates until an appointment is scheduled for a hearing by the Senate Judiciary Committee. There is no mandated advertisement of a vacancy, no process of screening applications, no public hearing on semi-finalists’ qualifications as is the case with the screening of judicial candidates by JNC.
- Placing the appointment – and the reappointment – of magistrates in their superiors’ hands will ensure the magistrates’ total dependency upon those superiors unlike the situation of judges, who serve for life once confirmed. The appointment of magistrates has become, in short, a patronage system.