Engage Rhode Island, the deep-pocketed advocacy group closely tied to Treasurer Gina Raimondo, released an unsigned three-page document [pdf] on Monday that makes the case for the legality of the 2011 pension law. Here’s the core of the argument:

If the Rhode Island Supreme Court affirms Judge Taft-Carter’s Decision, it will reverse its own precedent on the unmistakability doctrine, and create new constitutional law which will differ from federal court precedent and the precedent of the majority of state courts in this country. … If the judiciary can require a legislature to bind itself forever through one legislative act, which can never be revisited, the judiciary is thereby given too much power. Thus, it is important to hold from a separation of powers perspective that, unless the legislature’s intent to create contractual rights against the state is unmistakably clear, it should be free to amend its own legislation in the future.

Read the entire PDF here. For an alternative view, check out this from RWU Law’s Michael Yelnosky.

• Related: Mediation to continue in RI pension suit after judge gets update (Feb. 28)

Roger Williams University law professor Michael Yelnosky had an important op-ed in Sunday’s Projo about the state pension law, warning Rhode Islanders that they shouldn’t take the public confidence of the law’s supporters as a sign that it will be upheld by the courts.

Here’s Yelnosky:

A reader of these pages could be excused for concluding that the state will no doubt prevail in the lawsuits brought by the thousands of current and retired public employees affected by the 2011 Rhode Island Retirement Security Act. …

But these opinions gloss over some real legal issues. …

The “Contract Clause” of the Rhode Island Constitution (in the same language as the U.S. Constitution) prohibits the state from passing “any law impairing the obligation of contracts.” The retirees assert that the pension law does just that by reducing the annual pension benefits they earned during a career of state employment — benefits set forth in Rhode Island law. …

I am not predicting that the plaintiffs will win their cases. I write because the commentary on these pages does not take the plaintiffs’ arguments seriously. Some might wish it were not so, but judicial review of the pension reform law is the next step unless these cases are settled. If we are going to have an informed public debate about the desirability of settlement talks, a more balanced description of the legal landscape seems in order.

Yelnosky’s points reinforce others published here in the past – NEARI’s Robert Walsh made the union’s case at length when the suit was filed, and pension-law expert Amy Monahan of the University of Minnesota warned a year ago that this was a major legal gamble by Treasurer Raimondo and other Rhode Island leaders.

As Tim White has emphasized in his reporting, the key players here almost certainly will be the five justices of the Rhode Island Supreme Court: Suttell, Goldberg, Flaherty, Robinson and Indeglia. Are they willing to risk a “judicial backlash,” as Harvard Law’s Noah Feldman put it, by striking down a law backed by large majorities in the General Assembly, and in doing so place a major burden on strained state and local budgets?

Of course, as one smart legal observer reminded me recently, the justices also have the option of throwing out only part of the law and keeping the rest. The fiscal impacts of a mixed verdict will all depend on how the justices carve up the law’s provisions. Either way, taxpayers and their elected representatives should at least be contemplating what they’d do the day after the justices strike down the law.

• Related: Study: RI pension bill ‘a good approach’ – and it may be legal (Nov. 4, 2011)

Super-lawyer David Boies has been at the center of some of the biggest legal battles in recent American history, including ​Bush vs. Gore, U.S. vs. Microsoft and the fight about California’s Proposition 8 and gay marriage.

Now Treasurer Gina Raimondo has lured Boies to Rhode Island to join the legal team defending the state’s landmark pension overhaul; he’s even cut his fee from $1,250 an hour to just $50. The first major hearing before R.I. Superior Court Judge Sarah Taft-Carter is scheduled for Friday morning.

​Boies is chairman of the law firm Boies, Schiller and Flexner LLP. He sat down Thursday with WPRI.com to discuss the reason he took the case, how he views the legal arguments, and why he thinks liberal Democrats should support the pension law. The transcript has been lightly edited for clarity.

Let’s dive right in on the legal issues. Judge Taft-Carter says employees and retirees have an implied contract right to their promised pension benefits. You think she’s wrong.

Yes. I think there’s a difference between a statute and a contract. But obviously my view doesn’t control; I’m just an advocate for one particular party. What matters is what the courts ultimately decide. And so what we’ll be doing in the course of the proceeding is each side will have an opportunity to set forth their arguments for why this is or is not a contract.

Do you think it’s already too far gone at the Superior Court level because of Taft-Carter’s decision about the implied contract, and it will have to go to a higher court?

(more…)

Treasurer Raimondo’s office confirmed Thursday that super-lawyer David Boies has agreed to join the state’s defense team for the big pension lawsuit at a knockdown hourly rate of $50 – quite a bargain considering the famed Bush vs. Gore attorney usually charges $960 (!) an hour.

Boies explained his reasons for taking on the case in an interview with Reuters’ Alison Frankel:

“This is a $5 trillion issue,” Boies told me in a phone interview Wednesday. “Unless we solve this problem, everyone is in jeopardy — cities and states, those who depend on their services, even employees of cities and states.” Boies predicts an unprecedented wave of government bankruptcies if elected officials don’t take action. …

Raimondo … approached Boies several weeks ago, after deciding the state needed a constitutional law expert. “The enormity of the consequences of this case is hard to overstate,” Raimondo said. …

Boies was intrigued by the national implications and constitutional considerations of pension reform. He also admired the way Rhode Island accomplished its overhaul. … “This was a bipartisan effort, led by Democrats, attempting to reform state finances in a way that will benefit everyone,” Boies said. “It doesn’t help employees to have an employer that’s insolvent.” …

“This is not just a legal question,” he said. “It’s a political question, a question of how we’re going to reform the finances of city and state governments.” If other states see that Rhode Island has succeeded in passing an overhaul and turning back a court challenge, he said, they may follow.

But the best quote in the piece may be from Council 94′s Michael Downey, who dismisses Frankel’s suggestion he and his union allies should be more worried now: “Boies didn’t do much good for Al Gore.”

There may be no bigger health wonk in Rhode Island politics than Lt. Gov. Elizabeth Roberts. Now in her second term, the Democrat was tasked by Governor Chafee shortly after he took office with overseeing the state implementation of the federal health care law, and she’s moved quickly to do so.

After this morning’s U.S. Supreme Court ruling upholding the health law, I sat down with the lieutenant governor in her State House office to discuss what comes next. The transcript has been lightly edited for length and clarity.

This decision just says, OK, Rhode Island, keep doing what you’re doing with implementing the health care law, right?

It says keep doing what we’re doing and with a sense of confidence that the federal government is going to be our partner in this going forward. We also have a lot of regional conversations going on, and there’ll be more consistency from state to state – we now know that as a country we are moving forward with this law. That will change a lot of the politics, and also a lot of the practical work that we’re doing.

Take me through – at 30,000 feet – the big benchmarks and milestones ahead in implementing the law for Rhode Island.

(more…)

The justices are expected to release their opinion shortly after 10 a.m. This post from Monday will get you up to speed. Lt. Gov. Elizabeth Roberts, who’s leading the health law’s implementation in Rhode Island, will discuss what the outcome means for the state at an 11:30 a.m. news conference.

Update: The law stands, for the most part, as a number of experts predicted.

“The bottom line,” SCOTUSblog writes, “the entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read.” Much more to come.

The issue of the Medicaid funds is one that matters locally, since it affects what the federal government can and can’t do to Rhode Island’s budget. But for now, looks like implementation of Obamacare moves ahead.

Update #2: The Medicaid is apparently largely irrelevant to Rhode Island because our current leaders support expanding Medicaid and weren’t looking to buck the feds on it.

Coming up this afternoon, I’ll have a one-on-one with Lt. Gov. Roberts about what this means for Rhode Island, Christine Ferguson’s reflections on John Chafee’s framework getting upheld, and more on what happens next. Also catch my interview with Congressman Langevin on WPRI 12 at 5:30 p.m.

Heads up – the U.S. Supreme Court could decide as soon as today whether all or part of the Patient Protection and Affordable Care Act, President Obama’s health care law, is unconstitutional.

The justices are scheduled to release opinions at 10 a.m. this morning, but they could hold off on issuing their health care ruling until later in the week. (No TV cameras and no leaks.)

If you want to understand what Obamacare does and what the justices are considering, read Sarah Kliff’s Wonkblog overview. If you want to watch today’s decisions as they come in, follow SCOTUSblog’s live blog this morning.

And if you want coverage on the Affordable Care Act and Rhode Island – which has moved faster than most other states to implement the law – here are some highlights from the Nesi’s Notes archive:

• John Chafee’s ghost haunts high court debate over Obamacare (June 18)

• How RI could become an island of ‘Obamacare’ in Romney’s US (Jan. 19)

• RI awarded $64.8M, most in the US, to start its health exchange (Jan. 18)

• Watch ‘Newsmakers’ with Lt. Gov. Elizabeth Roberts on health care (Jan. 1)

• Health insurance exchanges a bipartisan affair in Rhode Island (April 1, 2011)

• How John Chafee paved the way for ‘Obamacare’ in the 1990s (March 23, 2011)

• Talking health care reform with Lieutenant Governor Roberts (Sept. 23, 2010)

Update: No health care decision today (though there were some other big ones). NYT’s Jeff Zeleny says the Obamacare ruling is “likely Thursday.”

On Saturday morning, Providence Mayor Angel Taveras will convene a meeting of the city’s retirees to ask them to accept reductions in their pension benefits to help the capital avoid filing for bankruptcy, as nearby Central Falls did last August. What happens if they don’t come to an agreement?

David Skeel is a professor at the University of Pennsylvania Law School in Philadelphia and a nationally known expert on bankruptcy and Chapter 9. We spoke on Thursday about what bankruptcy would mean for Providence’s pension system, how Central Falls has changed the legal landscape, and why he doesn’t buy the case for Rhode Island’s bondholders-first law. The transcript has been lightly edited for length and clarity.

I was fascinated by the argument in your working paper that government employees’ and retirees’ property rights cover the pension fund but not the pension promises. Could you explain that?

The question is if a city or a state makes a pension promise, but does not fund the promises – which has been true in many states in recent years – what exactly is protected in the event of a default or of bankruptcy? A lot of people assume that what’s protected is the full promise, even if there’s no funding behind it.

Although this is certainly not free from doubt – this is unchartered territory in many respects – my view is that there’s a good argument that what’s protected is the amount of money that’s been set aside. Pension obligations are a form of what we refer to in the law as a property right, and other kinds of property rights are protected up to the value of the property that’s set aside for them. So if somebody has collateral for a transaction, we treat that promise as sacrosanct up to the value of the collateral.

(more…)

From Smith Hill to Providence and Pawtucket, government lawyers have been batting zero in their efforts to convince Rhode Island judges to uphold changes to public-sector workers’ retirement benefits.

That’s why the four state leaders who pushed through the new pension law should start formal negotiations with union leaders on an alternative overhaul of the system before they lose in court, according to Bob Walsh of the National Education Association Rhode Island.

“The legislative victory that the folks who supported changes in the pension system achieved is going to be short-lived – because it was illegal,” Walsh told WPRI.com on Tuesday. He suggested state leaders should appoint a neutral mediator such as former R.I. Supreme Court Chief Justice Frank Williams to start talks between the two sides.

The unions haven’t filed an injunction to block the new law from taking effect because it won’t impact active workers until July 1 or retirees until Jan. 1, when they miss their first cost-of-living adjustment, Walsh said. Superior Court Judge Sarah Taft-Carter already gave the unions a first-round victory last fall in an existing suit challenging earlier pension cutbacks.

(more…)

Judge Taft-Carter’s decision in the Providence Medicare case on Monday contained this rather odd passage:

Moreover, the Court notes that $6 million in lost savings – although hardly a paltry sum – is less than 1% of the City’s approximate $1.5 billion in liabilities for non-pension post-retirement employment benefits. Immediate receipt of these alleged savings would not save the City from financial ruin.

That’s an apples-to-oranges comparison. The $6 million is how much the city projects it will save from moving retirees to Medicare in one fiscal year. The $1.5 billion is how much the city projects it owes them in health benefits forever.

Think about it: by Taft-Carter’s logic, the pension law passed in November had a negligible impact, because the $128 million it saves in the 2012-13 state budget is only about 1.8% of the old $7.3 billion unfunded pension liability. But the number people care about is the drop in the unfunded liability to $4.3 billion, a 41% reduction.

A more apt comparison would be how important the $6 million is in balancing Providence’s 2011-12 budget. If we take the original projected deficit for Providence – $110 million – the Medicare savings closes more than 5% of the shortfall. Or if we take the remaining deficit for this year – about $30 million – it’s equal to 20% of the shortfall.

If, on the other hand, Taft-Carter wants a number that’s comparable to the $1.5 billion unfunded retiree health liability, she would need an estimate of how much the move to Medicare shaves off that figure. It’s not clear to me if that figure is available, but it would be substantially more than $6 million.

An earlier version incorrectly described the reduction in the pension liability as 59% rather than 41%.

Interesting (via the AP):

Parents upset by the admission policy at a parochial school. Clergy and parishioners at odds over use of their building. A priest resisting a transfer to another parish.

It was once assumed that disagreements like these in the Roman Catholic Church would end one way: with the highest-ranking cleric getting the last word.

But that outcome is no longer a given as Catholics, emboldened following the clergy abuse scandals that erupted a decade ago this month, have sought another avenue of redress.

In recent years, clergy and lay people in the United States have increasingly turned to the church’s internal legal system to challenge a bishop’s or pastor’s decision about even the most workaday issues in Catholic life, according to canon lawyers in academia, dioceses and in private practice. Sometimes, the challengers even win. …

“We just Googled it and got some information about who was available,” said Patricia Schulte-Singleton, a 52-year-old parishioner who has helped coordinate resistance to church closures, including her own St. Patrick Catholic Church, throughout the Diocese of Cleveland. They hired a nun who was a canonist in Rhode Island.

I wonder who she is? Reminds me a little of our own Arlene Violet, a nun-turned-attorney general.

There’s no thornier debate in the pension discussion than the question of whether retirees have legal – and perhaps even constitutional – rights to the full benefits they were originally promised. Los Angeles Times political columnist George Skelton took a look at it in the context of California on Monday, but there’s plenty for Rhode Islanders to learn.

On the one hand, Skelton writes:

In Philadelphia, 224 years ago, some men tucked these words into the nation’s new Constitution: “No state shall … pass any … law impairing the obligation of contracts…”

Those words, squeezed into a very long sentence in Article 1, Section 10, listing powers denied the states, became known as the “contracts clause.” …

As widely interpreted — most importantly by the courts (or so we laymen are told) — the clause means that pensions promised state and local government workers on the day they were hired cannot be reduced without giving them a new compensating benefit.

On the other hand, Chapman University law professor John Eastman tells Skelton:

His reading of two centuries of case law on the contract clause, Eastman says, is that public pension plans can be modified if there’s “a real serious fiscal problem, a dire financial need — and the system is underfunded. Given the circumstances in California, I think we would meet the legal requirement.”

He adds: “Guys in the Legislature made [pension] promises they cannot fund. Making sure that future generations of taxpayers are not held to that obligation is not a violation of the contracts clause.”

Read the whole thing. And speaking of pensions, don’t miss the findings of Target 12′s latest “Probing Pensions” investigation tonight at 10 p.m. on Fox Providence and 11 p.m. on WPRI 12.

Attorney General Peter Kilmartin was our guest Thursday to tape this weekend’s edition of WPRI 12′s “Newsmakers.” You can watch the episode here.

During the show, Kilmartin said nobody has been deported since the federal immigration program Secure Communities started up in Rhode Island in March.

But it turns out that’s not the case, Tim White reports in a new WPRI.com story that will surely provide more grist for the debate over the policy:

Fourteen people have been deported to their home countries since Rhode Island implemented the controversial federal immigration program Secure Communities in March.

According to figures provided by the Rhode Island Attorney General’s office, 9,467 fingerprints have been submitted to federal officials since March 22 through Secure Communities. Of those, 100 people have been handed over to Immigrations and Customs Enforcement custody.

Amy Kempe, a spokesperson for Attorney General Peter Kilmartin, said 42 of the 100 were “level one offenders.”

“Those are individuals who have committed the most heinous crimes,” Kempe said.

Central Falls filed for bankruptcy less than 48 hours ago, but the case is already going down in history.

The U.S. Bankruptcy Court for the District of Rhode Island has designated the tiny city’s Chapter 9 filing “as a Historical Record,” according to a court filing Tuesday.

Jennifer Davis, the case manager for Central Falls’ bankruptcy, told WPRI.com the decision was made by Susan M. Thornton, clerk of the U.S. Bankruptcy Court here, based on the widespread focus on the situation.

“Due to the historical legal interest of the Central Falls case and the substantial media attention it is expected to receive, the Clerk of Court has designated the case as historical,” Davis said in an e-mail.

The designation means the filings and other documents made in the Central Falls case will be kept permanently rather than be disposed of the way non-historical cases’ materials are, she said.

The criteria to designate a historical case was developed by the Judicial Conference’s Court Administration and Case Management. A case makes the cut if it involves a judge, lawyer, litigant, or witness of historical interest or importance; involves an issue of historical legal interest; involves a matter of historical interest separate from the legal issues in the litigation; or receives substantial media attention at the time, Davis said.

(photo: Ted Nesi/WPRI)

Can Rhode Island’s lawmakers change pension benefits for workers who are already in the system?

It’s a huge legal question, and the answer could determine what the state does to address its pension-funding crisis. A state lawsuit filed last year – and scheduled for a hearing this month – should provide some clarity, though further legal challenges seem almost inevitable.

Rhode Island is one of many cash-strapped states grappling with the question. This week, judges in Colorado and Minnesota both dismissed court challenges to pension cuts made by retirees – and although decisions in one state don’t bind judges in another, The New York Times reports they could still have an impact:

The two court decisions, issued Wednesday, suggest that the legal tide may be changing for public pensioners. …

[I]n his ruling dismissing the Minnesota case, Judge Gregg E. Johnson of the state’s Second Judicial District Court wrote that the retirees in that state “have not met their burden to show unconstitutionality beyond a reasonable doubt.”

Judge Robert S. Hyatt, a district judge in Denver, offered a different line of thinking, noting that the 2010 state law that cut the benefits did not actually allow the state to remove money from the pension fund and use it to balance the budget. …

[Hyatt] also drew a distinction between a base pension and a cost-of-living adjustment, often called a COLA. He suggested that the inflation adjustment could be reduced, but the base pension could not. …

The three cases [including another in South Dakota] have been closely watched as bellwethers.

Rhode Island is producing twice as many lawyers every year as it needs in order to fill job openings in the legal profession, according to a new study.

In 2009, a total of 209 people passed the bar exam in Rhode Island. But the state is only expected to have about 102 legal job openings each year between 2010 and 2015, leaving a surplus of 107 lawyers, the study found.

Those numbers come from Economic Modeling Specialists Inc., a consulting firm, using data from the National Conference of Bar Examiners, the Bureau of Labor Statistics and the Census Bureau.

Rhode Island’s lawyer surplus is mirrored in nearly ever state. The only places without one were Nebraska, Wisconsin and Washington, D.C., the study said. So even if you’re planning to pass the bar here, it might not be a bad idea to take a class in agricultural law in case you land a job in the Cornhusker State.

Bonus fact: The median wage for a lawyer in Rhode Island is $39.65 an hour, compared with about $44 an hour in Massachusetts and Connecticut; $70.96 in Washington, D.C.; and $24.96 out in Montana.

(h/t: Economix)

The U.S. District Court in Rhode Island will hold Judge John J. “Jack” McConnell Jr.’s public investiture ceremony at the Rhode Island Convention Center in order to have enough room for the big crowd that’s expected.

Invitations are in the mail for the event, which will be held Monday, June 27 at 3 p.m. in the Convention Center’s Ballroom A, court clerk David DiMarzio told WPRI.com. The formal swearing-in will be followed by a reception.

The U.S. Senate voted 50-44 to confirm McConnell to the vacant seat on May 4 following a two-year battle. Chief Judge Mary Lisi administered the oath of office to McConnell privately on May 17 so he could begin working on cases.

Investiture ceremonies are usually held in the ceremonial court room No. 1 of Providence’s historic five-story federal building along Kennedy Plaza, but DiMarzio said McConnell’s will be held at the convention center to accommodate the large number of people likely to show up.

Among those expected to attend are the state’s congressional delegation, including U.S. Sens. Jack Reed and Sheldon Whitehouse, who were instrumental in getting McConnell a seat on the federal bench. Security for the event will be handed by the U.S. Marshals Service.

The district court will pay to rent the convention center ballroom for the ceremony, while McConnell himself will cover the cost of the reception, DiMarzio said.

The U.S. District Court in Rhode Island is the state’s federal trial court and has jurisdiction over both civil and criminal cases. McConnell has been reviewing cases and holding pretrial hearings since taking his oath last month, and is now preparing to schedule his first trials, DiMarzio said.

McConnell is one of nine judges assigned to the district court here. The others are Chief Judge Lisi and District Judge William Smith; Senior Judges Ronald Lagueux and Ernest Torres, the latter of whom is inactive; Magistrate Judges David Martin and Lincoln Almond; and recalled Magistrate Judges Jacob Hagopian and Robert Lovegreen, who fill in when needed.

Update: About 500 people are expected to attend McConnell’s investiture ceremony, according to DiMarzio.

(photo: Motley Rice)

Providence's Federal Building

Jack McConnell will likely take his seat on the federal bench in Providence before the Fourth of July, the clerk of the U.S. District Court in Rhode Island said Thursday morning.

After a two-year battle, the U.S. Senate voted 50-44 on Wednesday to confirm President Obama’s nominee to the vacant seat. The final step in Washington will be for the president to make it official by signing McConnell’s judicial commission, David DiMarzio, the district court’s clerk, told WPRI.com.

The commission is a large, engraved document. A White House press aide was not immediately able to say when Obama would sign McConnell’s, but he will likely do so within a matter of days.

Once the president does that, the court’s local staff will work with McConnell to coordinate the timing of his swearing-in ceremony. “Those details are evolving now, because all of this happened so quickly,” DiMarzio said, adding that more information should be released “very shortly.”

The ceremony is likely to take place within the next two months, and possibly much sooner. “I think it’ll be fairly quickly – it’s just a matter of how quickly we can get together the logistics, if you will,” DiMarzio said. The state’s U.S. senators, who are closely involved in the judicial confirmation process, usually attend the event.

It’s also possible there will be two ceremonies – a private swearing-in to make McConnell a judge and let him get to work on the trial court’s backlog of cases, followed by a public one with more pomp and circumstance; that’s what appellate Judge O. Rogeriee Thompson did last year.

McConnell will be able to decide who should administer the oath and where it should take place, but traditionally local appointees have been sworn in by the chief judge – currently Mary M. Lisi – in the ceremonial court room No. 1 of Providence’s historic five-story federal building along Kennedy Plaza.

The U.S. District Court in Rhode Island is the state’s federal trial court and has jurisdiction over both civil and criminal cases.

Once McConnell is sworn in, there will be nine judges assigned to the district court: Chief Judge Lisi and District Judges William Smith and McConnell; Senior Judges Ronald Lagueux and Ernest Torres, the latter of whom is inactive; Magistrate Judges David Martin and Lincoln Almond; and recalled Magistrate Judges Jacob Hagopian and Robert Lovegreen, who fill in when needed.

(photo: U.S. General Services Administration, via Wikipedia)

Connecticut’s new governor, Dannel Malloy, is the first Nutmeg State leader in more than 15 years to oppose the death penalty. Advocates are hoping he’ll sign legislation to abolish the practice before too long; his predecessor, Jodi Rell, vetoed a repeal bill less than two years ago.

Rhode Island officially banned the death penalty in 1984, but the state hasn’t actually executed anyone since 1845, a decade and a half before the Civil War began.

That was the year an Irish immigrant named John Gordon was hanged for allegedly murdering Amasa Sprague, brother of one Rhode Island governor and father of another. To this day, questions remain about Gordon’s guilt considering the climate in which he was convicted, as WRNI’s Scott MacKay reported in 2008:

The [Gordon] trial came at a time in the state of anti-immigrant hysteria against Irish Roman Catholics, the first group to immigrate here in large numbers and threaten the hegemony of the Yankee Protestants that ran Rhode Island as their duchy. …

Every time there was a serious attempt at the State House to bring the death penalty back to the state — the last was in the 1990s by then-Rep. Antonio Pires, D-Pawtucket — Gordon’s trial is invoked and measures to reinstitute capital punishment are defeated. …

John Gordon walked to the gallows from his cell at the state prison, which in those days was located in Providence, where the Providence Place mall now stands. Sixty community notables attended the hanging, along with another 1,000 or so people — [URI Professor Scott] Molloy says they were most likely Irish immigrants — who stood on the outskirts of the prison but were too far way to see the gallows, which were in the jail courtyard.

The Rev. John Brady, a Catholic priest, shocked the elite observers by saying to Gordon before the hanging: “Have courage, John. You are going to appear before a just and merciful judge. You are going to join myriads of your countrymen, who, like you, were sacrificed to the shrine of bigotry and prejudice.”

The General Assembly abolished the death penalty seven years later, making Rhode Island a pioneer in doing so along with Michigan and Wisconsin, former Supreme Court Justice John Paul Stevens noted recently.

Capital punishment was legalized again in 1872, and remained the law of the land until a 1979 Rhode Island Supreme Court decision declared it unconstitutional; lawmakers abolished the death penalty once more five years later.

Gov. Lincoln Chafee opposes capital punishment, but Peter Kilmartin, the state’s new attorney general, told The Providence Journal last year he is in favor of reinstating it for some offenses.

“I support the death penalty but only for particularly heinous crimes such as the intentional killing of a police officer, murder in the first degree with an aggravating factor such as torture or mutilation, and 1st degree sexual assault with an aggravating factor,” Kilmartin said. “In addition, the death penalty should not be automatic. It should only happen after a finding of guilt and an evidentiary hearing seeking the death penalty.”

You can be sure the ghost of John Gordon would loom large in any renewed debate over legalizing executions in Rhode Island. As an aside, former Cranston resident Ken Dooley has written a play about the Gordon trial that’s being put on through Feb. 27 at the city’s Park Theatre.

(photo: “Brotherly Love: Murder and the Politics of Prejudice in 19th-Century Rhode Island” cover)

“Is Law School a Losing Game?”

That was the question The New York Times asked over the weekend in a big story about whether it makes sense for law students to be taking on six-figure debt-loads to enter a field that’s apparently overcrowded already. (Slate published a similar, shorter piece in October.)

One of the issues highlighted by The Times is the questionable ways schools go about boosting and maintaing their spots in U.S. News and World Report’s annual rankings. Suffice to say, the statistics they provide about how many of their graduates are working and how much they’re making should be taken with a grain of salt:

In 1997, when U.S. News first published a statistic called “graduates known to be employed nine months after graduation,” law schools reported an average employment rate of 84 percent. In the most recent U.S. News rankings, 93 percent of grads were working — nearly a 10-point jump. …

Many schools, even those that have failed to break into the U.S. News top 40, state that the median starting salary of graduates in the private sector is $160,000. That seems highly unlikely, given that Harvard and Yale, at the top of the pile, list the exact same figure.

Rhode Island only has one law school, the private Roger Williams University School of Law in Bristol, which was established in 1993 and accredited by the ABA four years later. (The state isn’t likely to open a public law school anytime soon.) U.S. News doesn’t rank RWU Law numerically but classifies it as a fourth-tier program.

I pulled RWU’s latest employment report [pdf], which showed 82% of its 2009 graduates were employed nine months later. An additional 9% were pursuing another degree, while the rest were unemployed.

Nearly half of RWU Law graduates with a job were in private practice. Among the rest, 15% were clerking for a judge, 15% were in business, 11% were in government, 7% were doing public interest work and 2% were in academia.

The average first-year salary among the 159 graduates who responded to the survey was $66,074, while the median salary was $46,000. The Times story cautions that those numbers may be inflated by the fact that less successful graduates are also less likely to fill out the survey.

I suspect these numbers will keep improving for RWU as the school continues to establish itself and its graduates make names for themselves in law and politics – although it may also face a bit of regional competition now that Southern New England School of Law in Dartmouth has become part of UMass.

Update: Economist Michael Mandel points out one reason people are still going to law school: the legal sector was one of the relatively few that added jobs over the last 10 years.

(photo: RWU)

R.I. Superior Court Justice Michael Silverstein this morning upheld the state’s new municipal receivership law and the Carcieri administration’s using it to put Central Falls under the control of retired judge Mark Pfeiffer.

As I mentioned back in July, the big constitutional question here was whether or not putting a city or town into receivership represented a permanent change in a municipality’s form of government. Administration lawyers and Pfeiffer argued it does not, and therefore the new law would withstand judicial review under a 1994 R.I. Supreme Court precedent. Central Falls Mayor Charles Moreau and four out of five City Council members argued the opposite, and lost.

I left a message for Michael Kelly, the attorney who represented Central Falls, to see if he plans to appeal Silverstein’s ruling. I’ll update when I hear back.

I’ve been reading Silverstein’s 48-page decision [pdf], and it paints a dire, if unsurprising, picture of Central Falls’ finances – huge deficits this year and next, more than $10 million in debt, and just $4 million saved to cover more than $35 million in promised pension benefits. Here’s how the judge explains why state leaders freaked out after Central Falls’ unilateral decision to file for standard receivership in May, which led to quick passage of the law upheld today:

State officials were told by municipal finance advisors and rating agencies, that as a result of such receiverships, the capital markets would view debt financing to Rhode Island municipalities as extremely risky and it would become more expensive for municipalities to borrow in the capital markets.

Silverstein is particularly enamored of the law’s five-step process for dealing with a financially troubled city. It’s a bit like choose your own adventure for municipal finance. If things are bad but not terrible, the state can appoint a fiscal overseer with limited powers; if it’s worse than that, the state can create a budget and review commission; and if it’s really bad, the state can put in a receiver like Pfeiffer.

After that, one of two things can happen depending on how events unfold – if the city’s finances stabilize, a new finance department is appointed to watch over them for five years; and if even the receiver can’t solve the problem, the city or town can file for Chapter 9 bankruptcy in federal court.

The judge also noted that cities and towns’ right to self-government “is not unfettered,” because matters of statewide concern remain in the General Assembly’s hands even if they affect municipalities. With that in mind, he agreed with the administration that an individual community’s financial collapse would be a matter of statewide concern because of the cascade effect it would have on other places’ finances.

Silverstein slapped down Moreau and co.’s argument that the new receivership law singled out Central Falls – which would be unconstitutional – and, as the administration had expected, cited that 1994 R.I. Supreme Court decision as precedent. He writes:

Although the Act may have applied retroactively and affected Central Falls differently than other municipalities, on its face and by its terms the Act applies equally to all cities and towns, including Central Falls, and is therefore a statute of general application.

Silverstein did reject the administration’s argument that Moreau and co. were acting in bad faith by challenging the law’s constitutionality after they themselves had filed for receivership in May, agreeing that their original filing did not automatically mean they were OK with the law that passed soon after.

All in all, an interesting day for students of Rhode Island law and the state’s centuries-old debate over local control.

Update: Kelly, Central Falls’ lawyer, told the Associated Press he plans to appeal the ruling. So the legal battle may not be over yet.

Update #2: Steven Brown, longtime executive director of the American Civil Liberties Union’s Rhode Island chapter, issued a statement criticizing the ruling. “This is a sad day for democracy in Central Falls and every other municipality in Rhode Island,” he said, adding that “there are virtually no limits” on the powers of the receiver and that Central Falls residents have “effectively been disenfranchised.”

Back in 2004, Rhode Island – along with seven other states, New York City and three land trusts – filed a lawsuit aimed at forcing the nation’s five biggest power companies to curb their greenhouse gas emissions. This past March, the 2nd Circuit Court of Appeals agreed that the suit could move forward, setting up a fight between the two sides in the U.S. Supreme Court.

On Thursday, the Obama administration sided with the power companies (which include the Tennessee Valley Authority, a federal agency), and asked the Supreme Court to overturn the 2nd Circuit’s ruling. The White House’s top lawyer argued the U.S. Environmental Protection Agency is taking steps that make the suit unnecessary.

But environmentalists were angered by other parts of the administration’s brief, as The Washington Post reports:

Moreover, environmental groups said, the government’s brief went beyond that, employing arguments that threatened to undercut a basis for legal action that have been used for a century, since Georgia sued over damage a Tennessee copper smelter was inflicting on Georgia’s forests.

“We’re very angry and very disappointed that they would take this tack,” said David Doniger, policy director of the climate center at the Natural Resources Defense Council.

An administration official, speaking on the condition of anonymity, replied that the EPA has been taking “a series of regulatory actions indicating that it’s moving forward on greenhouse gases and really making it inappropriate for the courts to step in and take on this issue.”

Attorney General Patrick Lynch joined an environmental organization and two businesses on Monday in asking the Rhode Island Supreme Court to throw out the R.I. Public Utilities Commission’s Aug. 11 decision to sign off on a deal between National Grid and Deepwater Wind.

And in his statement asking the court to take up the case, Lynch draws an eye-popping historical parallel:

Not since the events surrounding the case of Trevett v. Weedon [sic] (1786) – in which the Justices of this Court’s predecessor were summoned to the floor of the General Assembly to face firing for non-implementation of an enactment that abridged specific trials and stripped the court of jurisdiction – has the judicial function been so threatened in this state. …

So too, the current affair – featuring an attempt at retroactive legislative dictation of the result of a case-specific fact question that had been adjudicated – will have an impact far beyond the parties. This case provides an opportunity for the Court to illuminate Rhode Island’s ongoing exploration of the separation-of-powers.

Now that’s what I call a rip-roaring writ of certiorari.

Update: So, what happens next? First, the Supreme Court has to decide whether to take the case. If it does, the two sides will have to file their opposing briefs and then argue the case before the justices. Considering that Deepwater wants to get going on building the wind farm, they may ask for an expedited review, which would likely see the case decided before the end of the year. But that’s just an informed guess.

Updated #2: Turns out the AG’s office was writing a little too hastily – the correct name of that post-Revolutionary War case they referred to was Trevett v. Weeden, not Weedon. But Wikipedia reports (and other sources confirm) that Weeden was one of the cases that set the stage for Marbury v. Madison, the famous 1803 U.S. Supreme Court case that established the principle of judicial review.

Between Central Falls and WLNE-TV ABC 6, not to mention a number of lesser-known entities, the bankruptcy-like section of Rhode Island state law known as receivership has been getting quite a workout lately.

Not being a lawyer, I have been curious why insolvent organizations were turning to receivership rather than the federal bankruptcy courts. (Though in Central Falls’ case, doing so was not possible until the governor signed the new law on municipal finances last month.)

During an interview for a story that will come out next week, I put that question to Allan Shine, the Providence attorney who is representing WLNE’s current ownership in its case. The bottom line? Receivership is simpler. Here’s what he said:

With a Chapter 11 [aka, a business bankruptcy filing] – which you and your colleagues talk about in the news with companies such as GM or Enron or United Airlines – you’re dealing with huge, huge legal and accounting fees – millions and millions and millions of dollars a month in big Chapter 11s. It’s the nature of the beast with a huge company that has assets in every state and sometimes around the world, and everyone has lawyers and they can be tremendously expensive.

In Rhode Island, we don’t have United Airlines at least, and so we don’t have huge, mega-Chapter 11s. And over the years, members of the bar and the bankers and the people who are interested in creating value and helping out distressed companies, they have actually made use of the receivership process as a means for smaller and middle-sized companies to reorganize or to be sold as a going business, without the expense and the formalities of the federal court proceedings.

As an example, Shine pointed to Bess Eaton, the Westerly-based coffee chain that filed for bankruptcy in 2004 and was bought by Tim Hortons. Bess Eaton had to file in federal bankruptcy court because it had locations in a number of different states, and receivership only covers cases where everything is in Rhode Island, he said. (Shine represented Bess Eaton in its filing.)