Magistrate's powers called into question

Posted on December 22, 2007


Magistrate's powers called into question

SECTION: LOCAL NEWS; Pg. A-02

LENGTH: 1139 words

House Republican leaders say that giving William R. Guglietta the power to appoint other magistrates would violate the constitutional amendment on separation of powers.

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PROVIDENCE - William R. Guglietta, chief legal counsel for the House Democratic majority leader, is tentatively scheduled to be sworn in as chief magistrate of the Traffic Tribunal next month, but he might not end up with the power to appoint other traffic court magistrates, at least not for long.

State officials are now talking about giving that power to Governor Carcieri Governor Carcieri -Search using: News, Most Recent 60 Days

or Supreme Court Chief Justice Frank J. Williams.

The General Assembly created the chief magistrate's job earlier this year after removing the Traffic Tribunal from under Chief District Judge Albert E. DeRobbio. In doing so, the Assembly gave the chief magistrate a base salary of $132,062, a 10-year term and the power to appoint other Traffic Tribunal magistrates.

But now House Republican leaders are objecting, saying that giving Guglietta appointment powers would be a "patent violation" of the "separation of powers" constitutional amendment that voters approved in 2004. And they are calling for either Carcieri or Williams to make those appointments.

When contacted by The Journal this week, the House speaker, the Senate president, the governor and the chief justice said they either were open to making changes or shared concerns about the constitutionality of that provision.

Late last week, House Minority Leader Robert A. Watson, R-East Greenwich, and House Minority Whip Nicholas Gorham, R-Coventry, called the Traffic Tribunal magistrate appointment process "constitutionally deficient," and said they were working on legislation to fix it.

"In my opinion, the appointment of all Traffic Tribunal magistrates should be made by one of our state's constitutional officers; the governor or the chief justice of the Supreme Court," Gorham said. "The current law misplaces the authority to make appointments."

Williams, who selected Guglietta for the chief magistrate's job, wrote back to Watson and Gorham on Monday, saying, "I fully understand your concern about these appointments. Allowing the Chief Justice to make such appointments would remedy this concern and provide for uniformity of the magistrate appointment process within the courts. We are presently in the process of working on legislation to address this and other issues relating to magistrates."

Carcieri spokesman Jeff Neal said the Republican governor "agrees with leader Watson and Representative Gorham that the new law allowing magistrates to appoint magistrates is unconstitutional."

House Speaker William J. Murphy, D-West Warwick, said, "I'll be happy to work with Representative Watson. We have looked at restructuring language in the magistrate bill and I have no opposition to having someone other than the chief magistrate make those appointments."

And Senate President Joseph A. Montalbano, D-North Providence, issued a statement Thursday, saying, "We're not sure whether the language is constitutional as the law is currently written and respect the opinion of those who do not think it's constitutional. If possible, the Senate would prefer to clarify the existing law through the passage of the bill, rather than to have a constitutional issue on our hands that would have to be settled by the courts."

Christine Lopes, executive director of Common Cause of Rhode Island, the watchdog group that has pushed for years for separation of powers, said, "The root of the problem is that all magistrates should be selected through the Judicial Nominating Commission process. That needs to be solved first."

Keven A. McKenna, a Providence lawyer who has challenged the constitutionality of state magistrates, said the 2004 separation of powers constitutional amendment and the 1994 judicial merit-selection amendment give the power to appoint Traffic Tribunal magistrates to the governor. "Over a quarter-million people voted in 1994 that judges - i.e. people who enter judgments, including magistrates - are to go through the JNC, and that includes Guglietta," he said.

McKenna said to now give that appointment power to the Supreme Court chief justice would not fix the constitutional problem. "If anybody doesn't deserve more unconstitutional power, it's Frank Williams," he said. "The people want the governor to be in charge."

Last year, DeRobbio said he was "stunned and shocked" when the Assembly cut two Traffic Tribunal magistrate jobs less than two months after he had nominated people for those positions. Legislators said DeRobbio had failed to demonstrate a need to fill the vacancies.

This year, the Assembly removed the Traffic Tribunal from under DeRobbio and created the chief magistrate's job. Legislators denied they were exacting revenge for DeRobbio's failure to pick magistrate candidates favored by Assembly leaders. They said the change was part of a budget article that created more uniformity among the state's 18 magistrates.

This week, a courts spokesman confirmed there are now two magistrate vacancies in the Traffic Tribunal.

Candidates for the new chief magistrate job did not go through the JNC, which screens candidates for state judgeships. Instead, the Assembly put Williams in charge of the appointment. Williams created a three-member screening committee that interviewed the five candidates for the job and decided to send Williams all five names.

In October, Williams chose Guglietta, and the Senate confirmed him later that month. Guglietta will earn about $155,000 in the new job. Guglietta, 47, of Cranston, has been legal adviser to House Majority Leader Gordon D. Fox, D-Providence, since January 2003. He is a former state prosecutor who has been a part-time Cranston Municipal Court judge since January 2007.

Guglietta is tentatively scheduled to be sworn in by Williams at the State House on Jan. 16, House spokesman Larry Berman said.

On Nov. 21, Williams issued an executive order stating that "all magistrates shall be required to take an oath of office and file a written engagement prior to undertaking their duties." The order said, "The oath shall be administered by the appointing authority upon written notice to the Chief Justice of the Supreme Court."

The executive order also said the "Chief Justice shall be immediately notified in writing by the appointing authority of the applicable court of any vacancy or prospective vacancy of a magistrate position within the unified judicial system."

The order noted the Assembly "recently enacted widespread reforms to the process of magistrate selection, rights, duties, terms and conditions of service." And it said, "These reforms were intended to increase uniformity and consistency among magistrates serving in each of the courts in the unified judicial system."

efitzpat@projo.com / (401) 277-7368

Date: 12/22/2007 12:00:00 AM

Office: Common Cause Rhode Island

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