Fortunato to Step down from His 'Dream Job'

By Tracy Breton
Providence Journal
January 4, 2007

Providence — Superior Court Judge Stephen J. Fortunato Jr., one of the state's most controversial jurists, is retiring, effective Feb. 1 — the day after he turns 65.

He says he plans to continue teaching law school classes and is also interested in teaching on the undergraduate level. He also wants to spend more time writing scholarly articles about the law, politics and world affairs and to craft more op-ed pieces.

Fortunato said he is also looking forward to more volunteer work with the Family Life Center, which helps to integrate prisoners back into the community. He currently serves on the center's board of directors.

"For me this was a dream job. I continue to enjoy my job every day but there is a world beyond the judicial system," Fortunato said in an interview yesterday. "I've been in a courtroom every professional day of my life for nearly 33 years."

Fortunato, a former Democratic state senator and civil-liberties lawyer who says he would prefer to be known as "a leftist, not a liberal," sent his letter of resignation to Governor Carcieri Tuesday. "It has been a pleasure and honor for me to work with and for the people of Rhode Island since 1994 in what I believe is one of the premier trial courts in this nation," he wrote. "Despite occasional differences with your administration over points of legal interpretation, I have enjoyed being a justice during your tenure; and I remain everlasting grateful to one of your predecessors, the Honorable Bruce Sundlun, for having appointed me to this position. Naturally," he said, "my gratitude also extends to the legislature for its support in confirming me."

Fortunato, who now lives in Warren, was among the first group of state judges appointed under Rhode Island's merit-based screening system. Based on his years of service and age, Fortunato will retire with 75 percent of his $153,198-a-year pay — an annual pension of $114,898.

Fortunato has sat on some of the most newsworthy calendars during his tenure on the bench and has issued some of the most controversial decisions, irking politicians and sparking nasty letters to the editor. One Rhode Islander called him "loony" in a letter to The Providence Journal.

But in an editorial written in 1998, Fortunato said that "the judicial branch of government in which the judges serve is and must be independent from the mob in the street and the editorial writer at his or her word processor." And yesterday, he added to that view:

"To those who may criticize me, I say, 'Read the decision. I believe it is the obligation of judges to give justifications as to why they rule the way they do. They should look at what I write or what I say from the bench. These are principled decisions. The Supreme Court may not agree and the editorial writers may not agree." But judges, said Fortunato, have a duty to make hard and sometimes unpopular decisions.

For Fortunato, one of those came in 1994, three years after one-third of Rhode Island's residents were left for months without access to their savings during the state's credit-union crisis. Fortunato acquitted Peter A. Nevola, the former head of RISDIC, the now-defunct financial institutions' insurer, of defrauding his employer of thousands of dollars by lying about his political campaign contributions, saying the state had not met its burden of proof.

But perhaps his most controversial decision came in 1997, when Fortunato overturned his verdict that Monsignor Louis Ward Dunn was guilty of raping a sexual-abuse victim who had sought counseling from him and ruled that the priest was entitled to a new trial. Some called for the judge's impeachment. The state Supreme Court later reinstated the conviction. Fortunato, citing Dunn's "gross physical problems and mental frailties," sentenced the 79-year-old retired priest, who was in a nursing home, to a 10-year suspended prison sentence and ordered him to register as a sex offender.

The judge's published commentary pieces sometimes sparked controversy, too. In 1999, he lashed out at those calling for the impeachment of President Clinton for having sex with a White House intern, referring to the affair as "sexual encounters between consenting adults in the Oval Office" and "the private sexual adventuring of a president." Some readers of The Providence Journal, including a juror who had sat on a case in his court, wrote in to complain.

But Fortunato, who was an honors student at Moses Brown, Providence College and George Washington University Law School and is viewed by many as an intellectual (he regularly writes provocative law review articles for well-respected law reviews in Rhode Island and elsewhere), was unfazed by the criticism. He said what he believed, whether it was politic or not.

When Mary M. Lisi, the new chief judge of the U.S. District Court in Rhode Island, was being considered for a seat on the federal court in 1994, Fortunato wrote a letter to Senate Judiciary Committee Chairman Joseph Biden saying she was unqualified for the federal trial court.

In a 2004 commentary piece, he lashed out at Rhode Island Chief Justice Frank J. Williams and Attorney General Patrick C. Lynch for what he considered to be the inappropriate mingling of religion and the justice system. That same year, he wrote a national magazine article questioning the ability of Williams to be fair in his role as a member of a military review panel that was appointed to hear appeals from suspected terrorists.

Fortunato felt he had a duty to speak out. He wrote a Georgetown law review article entitled "On a Judge's Duty to Speak Extrajudicially: Rethinking the Strategy of Silence." Yesterday, in an interview, he said he was never uncomfortable with criticism directed his way and he elaborated what he felt his job was as a justice of the Rhode Island Superior Court: "I think there are people in larger society and within the legal community who forget that the Constitution is directed against governmental power and that the Bill of Rights puts restrictions on what the government can and cannot do. Freedom of expression and due process will go out the window if judges and editorialists are not breathing life into these ideas every day. The Constitution does not automatically enforce itself. Some human being has to do it and that is the judiciary."

He continued: U.S. Supreme Court Justice Antonin Scalia and the Bush administration "and their neo-conservative supporters — this notion that judges have to genuflect every time the legislative or executive branch does something is absolute nonsense "

Asked how he would respond to those who say that he sometimes tried to make law from the bench, he replied: "Believe me. If I legislated from the bench, you would not recognize this place."

He says he has no regrets about any of his decisions, including the many that were overturned. He said he agreed with the opinion expressed by the late U.S. Supreme Court Justice Robert Jackson: "Appellate courts are right because they're final. They're not final because they're right."


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