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Secret Court Proceedings on the Horizon, RI ACLU Warns

Posted: December 23, 2008|Category: Open Government

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A 25-year-old state law that could be formally implemented next month significantly undermines the principle that court proceedings should be open to the public, the RI ACLU said today. The ACLU will instead seek to have the statute repealed before it is implemented.

The R.I. Supreme Court has scheduled a public hearing for January 15th on proposed rules to implement the “Retired Justice Trial Act,” a two-sentence statute first enacted in 1984 that allows litigants to hire retired judges to hear publicly-filed court cases in secret. The ACLU said it was unaware whether the statute had ever been used since its adoption a quarter of a century ago.

RI ACLU executive director Steven Brown said today: “This statute appears to have been moribund for 25 years, and we believe it should stay that way. The notion of privatizing our judicial system is extremely disturbing on many levels. Among the most troubling are its creation of a two-tiered system of justice that allows for swift resolution of cases only for those wealthy enough to afford it, and its direct impact on the fundamental right of the public to monitor court proceedings.

“This statute establishes a judicial process that is, by definition, secret. It is important to emphasize that people who wish to conduct legal business in private already have the means to do so. Private arbitration proceedings have long been available to litigants, and mediation programs can serve the same function. It is precisely the availability of these alternative remedies that makes the process established by this Act so troubling. The ‘retired justice program’ has all the earmarks of regular court cases conducted under the auspices of the judicial branch, with one glaring difference – the proceedings are kept hidden from the public. Closed-door justice is, and should be, anathema to our judicial system, which has long been guided by fundamental principles of transparency.”

Brown noted that, in theory, a judge presiding over a “private” court case could issue a ruling on, for example, the constitutionality of a state law. Brown said the ACLU would encourage the Supreme Court to withhold adoption of any rules in order to allow the Court to consider its constitutional implications, and to give the General Assembly an opportunity to consider repealing the law when it convenes next month. If the Court proceeds with implementation of the law, the ACLU will urge the Court to adopt rules that limit secrecy to the greatest extent possible. In that regard, the ACLU will urge that, among other things, any proposed rules prohibit judges in these cases from imposing “gag orders” on witnesses, and require that any judgments entered in private cases be made public, and that all records contained in the public file also remain public despite the case’s presentation to a “private” judge.

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