Complaint against Justice Moves Forward

By Patrick Anderson
Providence Journa
November 20, 2018

http://www.providencejournal.com/news/20181120/complaint-against-justice-moves-forward

But at hearing Tuesday, defense lawyer attacks commission, saying it oversteps its authority

PROVIDENCE, R.I. — Rhode Island Supreme Court Justice Francis X. Flaherty’s defense against an ethics complaint accuses the State Ethics Commission of overstepping its legal authority and its chairman of displaying an “obvious negative predisposition” toward the Catholic Church in his criticism of child sexual abuse scandals.

In a tense hearing Tuesday, the Ethics Commission refused to throw out a complaint that Flaherty should have disclosed his position as president of the St. Thomas More Society of Rhode Island when he ruled on an appeal of a priest sexual abuse lawsuit against the Roman Catholic bishop of Providence. The St. Thomas More Society of Rhode Island is a nonprofit organization promoting Catholic legal work.

Representing Flaherty, lawyer Marc DeSisto questioned whether the non-lawyer members of the commission could rule on his motions in the short time span since they were filed and asked them whether they had read the case law.

It got more contentious from there.

DeSisto argued that the Ethics Commission’s financial disclosure regulations, which it uses to try to prevent conflicts of interest, “exceed the powers given to you by the legislature.”

He argued the Commission’s practice of deciding whether an investigation has probable cause to proceed with a complaint prejudiced its final ruling on a case.

And he called on Ethics Commission Chairman Ross Cheit, a Brown University political science professor, to recuse himself from the case because he has written extensively about priest sexual abuse cases like the one that triggered the Flaherty complaint.

“Mr. Cheit, you should have recused yourself to avoid the appearance of impropriety,” DeSisto said. “You write a blog called the Recovered Memory Project. In that blog you have rebuked those that advance technical defenses. You have criticized the Catholic Church.”

“There are no issues before us that involve the Catholic Church or statues of limitations or repressed memory,” Cheit responded. “Those aren’t issues before us.”

DeSisto: “That’s what you say... In this particular case you have expounded, criticizing the Catholic Church. That’s the basis of the complaint.”

Cheit: “No. The basis of this complaint is that the judge left something out of his financial disclosure.”

Cheit said he had never read the case that sparked the Ethics Commission complaint against Flaherty and had asked for attachments related to it to be removed from the complaint to prevent it from becoming entangled in this case.

The complaint against Flaherty was initiated in 2016 by Helen Hyde, a woman who had sued the Roman Catholic bishop of Providence — unsuccessfully — seeking damages from alleged sexual abuse by the Rev. Brendan Smyth more than four decades ago. Hyde appealed to the state Supreme Court where Flaherty wrote the decision denying her appeal.

Hyde complained to the Ethics Commission that Flaherty willfully failed to disclose that from 2010 to 2015 he was president of the St. Thomas More Society of Rhode Island on the annual financial disclosure forms government officials file each year with the Ethics Commission.

The St. Thomas More Society’s mission is “to promote the study by Catholic Lawyers of the application of Christian principles to modern problems, especially insofar as they are connected with the civil of ecclesiastical law,” according to its corporate filing with the secretary of state’s office. It raises money for the annual Red Mass for the state’s legal community.

Other pieces of Flaherty’s defense are that the commission rule requiring disclosure of executive roles with all non-profits goes beyond the scope of state law and that, even if it didn’t, Flaherty’s failure to disclose was not “willful and knowing.”

Commission prosecutor Katherine D’Arezzo fired back saying the requirements are consistent with state law and, even if they weren’t, the commission has the authority from the state Constitution to expand on the statute.

The commission’s decision to deny Flaherty’s motion to dismiss the complaint means it will go forward to the equivalent of a public trial, likely this winter.

If the commission finds Flaherty did violate the Code of Ethics, he could appeal the decision to Superior Court and theoretically, the Supreme Court.

DeSisto declined to comment after the hearing on whether an appeal was being contemplated, but during his arguments mentioned putting things on the record “if this proceeds to another forum.”