PROVIDENCE — The ACLU is opposing a state Supreme Court proposal that would allow litigants in civil cases to hire retired judges to hear cases in secret, charging the process would create a “two-tiered system of justice” that “allows for swift resolution of cases only for those wealthy enough to afford it.”

Steven Brown, executive director of the Rhode Island Affiliate of the American Civil Liberties Union, said he stumbled upon a scheduled Jan. 15 public hearing on the proposal while viewing the Supreme Court’s Web page.

The proposal refers to a state law, passed in 1984 but never used, that allows litigants to hire retired judges to hear publicly filed court cases behind closed doors.

A court spokesman said the process would not be much different from current mediation and arbitration processes and that about 25 other states already employ systems where civil cases are “privately judged.”

Under Rhode Island’s Retired Justice Trial Act, litigants decide where the case would be heard and pay all costs — including the fee for the retired judge whose decisions, the law states, would “have the same force and effect as if it had been entered or made by an active judge of the court.”

“The notion of privatizing our judicial system is extremely disturbing on many levels,” Brown said. “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 that affects the general public.

“This is definitely troubling,” said Brown, “and I can only hope the Supreme Court is proposing a public hearing because members of the court are concerned about it as well.”

Court spokesman Craig Berke said the Supreme Court put the matter down for a public hearing after Family Court Judge Howard Lipsey, who is scheduled to retire next year, “expressed an interest in the statute.”

Berke said the process of deciding cases by private judge is not much different than the processes of mediation and arbitration that are also handle privately.

“What does Mr. Brown think happens when cases are settled out of court and there is agreement through the parties… and the terms are often not disclosed?”

Said Berke: “Keep in mind that the decision does get entered into the [public] record and could be subject to appellate review if one of the sides is not happy with the outcome … This is simply one more way of resolving disputes.”

“This could conceivably speed up the normal trial calendars,” said Berke, “if it’s taking some other cases out of the pipeline.”

But, Brown said, “The big question is, since mediation and arbitration are available, what is the point of this new process? I’m certainly not aware of private mediation services being able to file direct appeals to the Rhode Island Supreme Court when the parties disagree which is what happens in these cases. This statute treats these private cases identically from public court cases except for the fact that they are not public and that’s what makes it so troubling.”

Brown said the ACLU would urge the Supreme Court to withhold adoption of any rules, to allow the court to consider its constitutional implications and give the General Assembly a chance to consider repealing the law when it convenes next month.

The Supreme Court is scheduled to hold the public hearing at 9 a.m. on Jan. 15.

tmooney@projo.com