R.I. officials fed up with squabble over speaking time at U.S. Supreme Court

John O'Brien Oct. 30, 2008, 4:17pm


PROVIDENCE, R.I. (Legal Newsline) - The State of Rhode Island is calling on noted attorney Theodore Olson to express its stance on a land trust case that goes before the U.S. Supreme Court on Monday.

Attorney General Patrick Lynch and Gov. Don Carcieri asked the Court to approve their choice after they were unable to reach a compromise with another attorney that wanted to take the lead during oral arguments, Charlestown Solicitor for Indian Affairs Joseph Larisa.

The Court requested a decision between Larisa, representing the town, and Olson, representing the Governor's Office.

"What an embarrassment for the State of Rhode Island," Lynch said, adding that Larisa and Charlestown officials "have led us to the edge of this cliff."

The case is a challenge to 31 Charlestown acres being given trust status for the Narragansett Indian tribe. The land would be mostly under federal and tribal control.

Lynch said he wants the law authorizing the trust status removed because, he said, a person who was assaulted on the land would not be protected by any civil or criminal state laws. He also said it could result in unregulated businesses that do not have to pay state taxes being in competition with other state businesses that do.

The State has lost at every stop the case has made. Twenty-one other states joined in an amicus brief supporting its stance.

"This case has always been far more important... than any one of its three parties, let alone the personal interests of one lawyer," Lynch said.

"It is beyond exasperating, and is actually astonishing, that one man's egomania has put us in this dire position. I hope that the actions the Governor and I have taken will help ensure that Rhode Island's voice is heard on Monday.

"The last thing that Rhode Island needs or wants is for a bad circuit court decision to become our law by default."

The letter to the Court, authored by Assistant Attorney General Neil Kelly, summarized the final hectic week as the parties tried to reach a compromise.

On Monday, Larisa filed an Emergency Motion for Divided Argument, asserting that a coin flip that was suggested must not include Lynch's office.

Larisa then refused to participate in a three-way draw, and only half of the town's council showed for an emergency meeting Thursday morning.

"The Governor and the State have done everything possible to resolve this issue, both through the democratic process and through the offer of a random draw," Kelly wrote.

Olson is a former U.S. Solicitor General who is preparing at least one other case for argument before the Court.

He is representing now-bankrupt Harman Mining Co., which had won a $50 million judgment from Massey Energy in West Virginia before the state Supreme Court overturned it.

Olson is arguing Justice Brent Benjamin should have recused himself from participating because he benefited from more than $3 million spent by Massey CEO Don Blankenship in the 2004 election.

The questions presented in the Rhode Island case can be found here.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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