Court observers also note tha the Rhode Island Supreme Court issues fewer anonymous opinions than in previous years.

01:00 AM EDT on Sunday, July 23, 2006

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Rhode Island Supreme Court justices are issuing fewer dissents and no longer writing anonymous opinions, an analysis of the court's most recent term shows.

The 2005-2006 term, which ended last month, included 7 full or partial dissents -- down from 14 such dissents in the 2004-05 term and 13 dissents in 2003-04 term, when former Justice Robert G. Flanders Jr. alone issued 11 full dissents.

Supreme Court Chief Justice Frank J. Williams said the drop in dissent reflects the ability to reach consensus and the collegiality among the five current members of the state's high court.

"I'm glad that in most cases we can reach consensus. I've always been troubled by the 5-4 decisions from Washington," Williams said of the U.S. Supreme Court.

Williams said the state Supreme Court achieves consensus in part by focusing on what legal issues need to be addressed to reach a decision. "You only decide what you have to decide," he said. "You may not have to agree on every issue raised at argument."

Williams said dissent is healthy. "I'm not troubled by it because there really is a lot of thought by all five justices and their clerks," he said.

But Williams said he was troubled by the tone of dissents by Flanders, who resigned from the court in 2004. "The tone was troubling to the members of the court, not so much the dissents themselves," he said.

While declining to characterize Flanders' dissents, Williams said their tone is not present in dissents by the court's current members. "They are very respectful, which is important to me and other members of the court," he said. "And it's important for the public, lawyers and litigants -- the attitude, the civility. You can disagree without being disagreeable."

When asked to comment, Flanders, who has been nominated for the 1st U.S. Circuit Court of Appeals, referred to his 1999 Roger Williams University Law Review article titled "The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents are Valuable."

The article begins by saying appellate judges don't like writing a dissent in part because it means more work and judges would prefer to be on the prevailing side. He said some appellate judges have gone to great lengths to discourage dissents, and others "are apt to accuse dissenters with having committed the dastardly crime of incivility or with having poisoned the well of collegiality."

But, Flanders said, a dissenting opinion "serves the interest of truth" by showing that judges are not unanimous, and dissents can improve the quality of the majority opinion. He said a draft dissent can sometimes change a majority's opinion, and even if that doesn't happen, a dissent can form the basis for a winning argument in a future case.

"Of course, a dissent need not be uncivil in its substance or its tone," Flanders wrote. But, he said, "a dissenter should feel free to express the precise degree of his or her disagreement -- or, if warranted, outrage."

"The substance of appellate judging -- providing the best possible judicial responses to the legal problems posed by the cases and controversies that are appealed to courts of last resort -- must never be sacrificed to appease the unslakable gods of collegiality and civility," Flanders wrote. Substantive dissents should be encouraged, he said, because "the filing of such dissents is an important hallmark of a thinking, independent and hardworking appellate court."

Observers offered various views when asked about the decrease in state Supreme Court dissents.

Loren E. Jones, an appellate lawyer who frequently appears before the Supreme Court and a former chairman of the state Bar Association, said, "Civility is up. The court seems to be working at a more civil level in [its] opinions. There is less internal sniping. There are still dissents, but they are not as vituperative."

Thomas M. Dickinson, another appellate lawyer who frequently appears before the court and chairman of the Bar Association's Supreme Court Bench/Bar Committee, said the extent of dissent might depend on the types of cases a court hears during a term. He said Rhode Island's Supreme Court has far fewer dissents than the U.S. Supreme Court, which regularly deals with highly controversial matters.

Roger Williams University law Prof. Andrew Horwitz called the decrease in dissenting opinions "sad."

"I think we all lose out when justices don't write dissenting opinions," Horwitz said. "In history, great dissents eventually have become law." As an example, he cited former U.S. Supreme Court Justice John Harlan's dissent in Plessy v. Ferguson, the 1896 case that was overruled a half-century later when the Brown v. Board of Education ruling banned racial segregation in public schools.

Horwitz said there's no great value in having one frequent dissenter on a court. "But it is valuable to have a culture of dissent," he said. "Many issues reach the Supreme Court level because there is serious disagreement, and it's just hard to believe that in 95 percent of the cases there's no disagreement among the justices."

One explanation might be that the court considers consensus more important than "an intellectual dialogue in public," Horwitz said. If so, that's unfortunate, he said, because "there is nothing uncivil about two smart people, educated in the law and acting in good faith, having different viewpoints on a legal issue."

Horwitz said, "If the desire to avoid unpleasantness stamps out dissent, we've lost what the court is about. We've lost intellectual honesty."

The judge who replaced Flanders on the Supreme Court, Justice William P. Robinson III, said, "I don't think any one of us would surrender our intellectual integrity for the sake of unanimity, but if you are able to dialogue well with people, you can sometimes find narrow grounds on which you can all agree."

Both Robinson and Williams cited U.S. Chief Justice John Roberts' philosophy of deciding cases on the narrowest possible grounds. "This court has tried not to issue sweeping decisions but instead to decide the cases before you today and let the law evolve incrementally," Robinson said. With that approach, he said, "you are less apt to have dissents."

Robinson said there are times when common ground cannot be reached. For example, he noted that in March he dissented from a ruling that said the Johnston school committee doesn't have the right to hire its own lawyers and must use the town solicitor. "I don't mean to sound arrogant, but I don't think any persuasive power on earth could persuade me otherwise," Robinson said of his dissent.

Robinson said he can't speak to how the court functioned before, but he's been impressed by "how genuinely collegial" the justices are now. Still, he noted the justices don't always agree, saying, "You don't want five puppets."

The Supreme Court's 2005-06 term saw five full dissents: two by Justice Francis X. Flaherty, two by Robinson and one by Justice Paul A. Suttell. There were also two partial dissents by Flaherty.

The 2004-2005 term saw eight full dissents: three by Flaherty, two by Robinson, one by Suttell, one by Goldberg and one by Williams. Also, there were six partial dissents: two by Suttell, two by Robinson, one by Flaherty and one by Goldberg.

The 2003-2004 term saw 13 full dissents: 11 by Flanders and 2 by Flaherty. Flanders also issued four concurrences for reasons other than those of the majority.

Another trend that emerged over the past term was the disappearance of anonymous opinions.

During the 2004-05 term, 88 opinions were issued per curiam, a Latin term meaning "by the court." But there were no per curiam opinions during the 2005-06 term. Instead, each ruling identified the judge who wrote the opinion on behalf of the court's majority.

Justice Robinson said that last year he attended a Washington and Lee University conference that discussed per curiam decisions and found that "there was no question Rhode Island was in the minority by having so many per curiams."

Williams said those findings confirmed what he'd heard from other New England chief justices. He said the full court discussed the matter during a retreat and decided "to make the per curiam decisions the exception instead of the rule," he said.

Williams said per curiam decisions had been designed for routine matters, but in recent years they'd come to include "very extensive decisions with citation of many cases and interesting legal issues."

The Journal had noted, in a January 2005 article, that more than half of the Supreme Court's opinions were being issued per curiam, that the unsigned opinions were running 20 pages or longer and that the opinions were being issued in highly controversial cases. The story quoted lawyer Girard R. Visconti asking, "Who is this Judge Per Curiam?"

Last week, Visconti said, "I'm happy to see the court has reduced the per curiam decisions for the benefit of the attorneys and the public. Per curiam decisions have the same force and effect, but it's nice to know who the authors are." For one thing, he said, citing the opinion of a particular judge can carry more weight than citing an anonymous opinion.

Visconti is chairman of the state Judicial Nominating Commission that screens judicial candidates, but he said he was speaking only as a practicing lawyer. He joked that "Judge Per Curiam" is now semiretired, and "I'm sure there's no vacancy for him."

Jones, the former Bar Association president, said, "By knowing who the author is you get insights into what that justice thinks. And in oral arguments, you can say, 'As your honor wrote in the Smith case.' "

Professor Horwitz praised the new practice, saying, "I think it's good in the message it sends in terms of accountability. When an opinion is per curiam, there's a sense of anonymity, that someone might be hiding behind the per curiam."

Also, Horwitz said, "It gives you a little more information about the leanings, the thinking of a particular justice."

efitzpat@projo.com (401) 277-7368