RI top court to revisit private judging issue

PROVIDENCE, R.I. — Divorce can be a time-consuming process, often requiring couples to miss work to meet with lawyers or make court dates.

But a state law being considered by Rhode Island’s highest court would allow divorcing couples and people involved in other types of lawsuits to pay a retired judge to preside over a private trial or other hearings — on their own time and out of public view.

Supporters say private judging speeds the legal process for people who want quick resolutions to personal disputes.

But civil liberties groups and open government advocates are concerned it would cut off access to the courts and thrust issues of public interest behind closed doors, creating a “two-tiered” system where people able or willing to pay for a judge can get faster service.

“The public has the right to know about any court proceedings, period,“ said Barbara Meagher, who teaches journalism at the University of Rhode Island.

A Rhode Island law enacted in 1984 allows retired judges to be hired for private trials and grants their rulings the same authority as those of sitting judges. But the statute remained dormant and effectively untested until last year when a retiring Family Court judge, Howard Lipsey, sought guidance from the state Supreme Court on how to implement it.

The issue is in limbo now that the court, which heard arguments in January, adjourned for the summer without finalizing guidelines. A bill that would have repealed the law, known as the Retired Justice Trial Act, was shelved, leaving the question with the court.

Lipsey, who still hears cases four days a week for free and wants the right to continue working after he’s fully retired, said private judging would most benefit couples seeking an uncontested divorce who have agreed on custody rights and property and want their dissolution finalized.

“I see people waiting and waiting and waiting” to have their cases heard, Lipsey said. Many people, he added, say “I would love to be able to go in at 5 o’clock or 5:30 or on Saturday, when I’m not working.“

Forms of private judging have existed for years in other states, including California, and some say it’s becoming more accepted as a way to ease case backlogs.

“What we’re watching is an increasing interest in enabling people to use private systems in lieu of public systems,“ said Judith Resnik, a professor at Yale Law School. “What can be lost is the possibility of public understanding of ordinary conflicts.“

Under a draft of the Rhode Island guidelines, both sides in “any pending civil action” may hire a mutually agreed upon ex-judge to decide either all or part of a court case — without a jury and in private. The parties would cover the costs of any supplies, such as a transcript, as well as the judge’s fees.

Lipsey said cases of extreme public interest would invariably play out through the ordinary court system because society would demand transparency. But divorces and domestic cases are different, he said.

“Why should a husband and wife have to bare their souls in public for something that they’ve agreed upon they don’t want impacting upon their children?“ Lipsey asked.

He likens private judging to mediation and arbitration, which traditionally are held in private. But the Rhode Island law would allow for full-blown trials — presided over by a former judge rather than lawyer — on varied civil issues to be conducted in private, with decisions subject to appeal to the Supreme Court.

And Resnik said even domestic cases that may at first appear to concern private affairs — such as the rights of a same-sex couple — could still include issues of public significance.

The issue would have been moot had state lawmakers passed a bill repealing the private judging statute. Its sponsor, Rep. Al Gemma, attributes the bill’s failure in part to the large number of lawmakers who are lawyers and don’t want to aggravate judges.

The Supreme Court was awaiting the outcome of that bill before acting, and now expects to revisit the issue this fall and possibly hold another public forum, said court spokesman Craig Berke.

Miriam Weizenbaum, a Rhode Island attorney who opposes the law, said the statute as written lacks safeguards for ensuring that the hired judges are accountable and impartial. She said she was troubled that decisions made in a private trial could, upon review by the Supreme Court, form the basis of established precedent.

“It’s like giving a private person the power to issue orders,“ she said. “Private people shouldn’t have the power of the court system.“

Though Lipsey and other retired judges stand to benefit financially by being rented out, Lipsey insisted money wasn’t his motive, joking that he could work in a shoe store or open a Kosher deli if that was the case.

“We already have what we have,“ Lipsey said. “This is something that gives the public another option.“