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, succeeded 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).
The new merit selection process creates a nine-member Judicial Nominating Commission(JNC) appointed by the Governor and leaders of the House and Senate from the two major political parties. The JNC’s statutory (RIGL 8-16.1-4) mandate is to select candidates based on, “intellect, ability, temperament, impartiality, diligence, experience, maturity, education, publications, and record of public, community, and government service.” They are required by statute to “exercise reasonable efforts to encourage racial, ethnic, and gender diversity within the judiciary of this state.”
The JNC publicly advertises court vacancies and accepts applications for those positions. After a deliberative process they interview finalists and take public testimony, in open sessions. Using a voting procedure laid out in regulations the JNC votes for a list of three to five finalists which is then sent onto the governor. The governor then selects a nominee and submits the name to the Senate for Advice and Consent.
The amendment ended the centuries-old system of the election of Supreme Court justices by the General Assembly in Grand Committee. 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 Margaret Curran, a highly regarded appellate lawyer, to the state Supreme Court.
The hard-won reforms have been subject to attack from the beginning. In addition to the rejection of Lincoln Almond’s nominee in 1996, 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 creating a so-called “look back” loophole. (2007 PL Ch. 120 and Ch. 220.) This weakened merit selection by expanding the pool of potential nominees way beyond the former limit of three to five names.
Legislative leaders, who control five of the nine appointments to the Commission, have allowed their appointees to remain long after their expiration of their terms. In one instance a commissioner was reappointed, contravening best practices, prompting a change in the statute in 2008.
The JNC process has seen numerous improvements since the inauguration of Governor Gina Raimondo in 2015. That year the “look back” loophole was allowed to sunset. Attorney Sarah Dowling was appointed to chair the JNC and she began, for the first time in the Commission’s history, to publish the required reports on the diversity of applicants.
Magistrates
The most egregious attack on the merit selection process has come in the form of an end-run by the General Assembly. Almost immediately after the 1994 constitutional amendments were enacted the legislature began creating judicial magistrate positions. Magistrates are judges of limited jurisdiction and are selected not through merit selection, but by the presiding judge of the respective court (except for the Traffic Tribunal which is selected by the Chief Justice of the Supreme Court). Quickly Rhode Island had more than 20 magistrates in our court system, many former legislators, close relatives of legislators, or former legislative employees. While limited reforms were enacted to their selection, including ten-year renewable terms in place of lifetime appointment, the General Assembly continues to expand their ranks, contravening the will of the voters in 1994. Common Cause Rhode Island has pushed legislation to required magistrates be selected via merit selection for almost two decades, with little success.
Common Cause Rhode Island proposes putting magistrates under our merit selection system. When Rhode Islanders amended our constitution in 1994 to create merit selection of judges there were only a handful of judicial officers known as magistrates in the court system. Two decades later, there are almost two dozen magistrates. These judicial officers, who possess many of the same powers as judges in Rhode Island, are selected through an opaque process that is subject to political manipulation. We propose using the Judicial Nominating Commission to recruit and vet a diverse pool of candidates, with the final selection being made by the governor with advice and consent from the state Senate.
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 served 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:
In 2007, the General Assembly enacted statutes which standardize the appointment of magistrates as follows:
The flaws in this appointment system are obvious. Two require comment:
In 2023 it came to light that magistrates in the Family Court were presiding over trials in contested divorces, despite having no authorization to do so. The day after the Supreme Court of Rhode Island issued a ruling that sidestepped the issue, the Family Court introduced legislation that would retroactively grant Family Court magistrates the power to conduct trials in contested divorce cases. That legislation passed in the 2024 legislative session, and became effective without the governor’s signature.
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