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O’Connor hears R.I. land dispute

01:00 AM EDT on Tuesday, May 6, 2008

By Edward Fitzpatrick

Journal Staff Writer

O’CONNOR

BOSTON — Justice Sandra Day O’Connor, the first woman to serve on the Supreme Court of the United States, yesterday began a two-day stint on the federal appeals court in Boston, delving into issues ranging from the bloody murder of a former priest in Massachusetts to a dispute over prime real estate in Barrington.

O’Connor, 78, who retired from the Supreme Court in 2006, is sitting by designation on the 1st U.S. Circuit Court of Appeals at the invitation of a federal judge from Providence, Senior Circuit Judge Bruce M. Selya.

With her familiar bob of white hair, O’Connor yesterday joined Selya and Chief Circuit Judge Michael Boudin in peppering lawyers with questions in a half-dozen cases, including the Rhode Island case of James H. Reyelt v. William B. Danzell and Louisa F. Beenker Danzell.

So how did it feel to appear before the woman who is arguably the world’s best-known judge?

“It was a very cool thing,” said Dana Curhan, a Boston lawyer who represented Reyelt.

“I am honored,” said Marc DeSisto, the Providence lawyer representing the Danzells. “I think it’s great when a senior Supreme Court judge lends a hand to circuit courts. It’s a great benefit to the court. It’s a great benefit to the bar. And it generates a lot of interest.”

Curhan and DeSisto have handled many appeals, appearing before the 1st Circuit four or five times a year, and Curhan said the identity of the judges really doesn’t come into play once an experienced lawyer steps up to the podium and begins making a client’s case.

DeSisto said he didn’t approach this case any differently. “You have to be prepared,” he said. And even when you’re prepared, judges can fire unexpected questions at you, so “you have to concentrate on the core issues,” he said.

In reviewing the core issues in the Rhode Island case, O’Connor heard a lot about the Barrington Zoning Board. And Selya noted federal courts were handling the case because it involved parties from different states, saying, “When I became a member of the Rhode Island bar in 1960, if you had told me that the Barrington Zoning Board would be the focal point of high-profile litigation in the United States Court of Appeals, I would have thought you had been smoking something that wasn’t quite legal.”

As O’Connor heard the cases, about 160 people packed the courtroom — up from the usual 20 or so spectators. After the hearings, O’Connor met with court staff, giving “an inspirational talk” and fielding questions, Selya said.

“It’s been a wonderful thing for the court because she’s been so good for the morale and is a role model for so many people — particularly women in the legal system,” Selya said. “Secondly, just sitting and talking with her is in a sense like becoming a part of history because she has been so central in so many important moments in American judicial history over the last 25 years.”

Selya said he and Boudin relished the chance to work with O’Connor. “It’s like someone who fancies themselves a pretty good golfer being told, ‘OK, you can play in this tournament and your partner is going to be Tiger Woods,’ ” he said.

When there is a need, federal judges from the Supreme Court, circuit courts and district courts can sit by designation on appellate courts, and the 1st Circuit has been short-handed since Selya assumed senior status on Dec. 31, 2006, Deputy Circuit Executive Susan J. Goldberg has explained.

The 1st Circuit regularly uses visiting judges from other circuits and from district courts within the 1st Circuit, which includes Rhode Island, Massachusetts, New Hampshire, Maine and Puerto Rico. But the court has never had a visiting judge as well known as O’Connor, Goldberg said. She said O’Connor is declining to speak with reporters during her visit.

O’Connor asked numerous questions during yesterday’s hearings. One case involved Ronald Leftwich, who was convicted in the 1996 slaying of a former Roman Catholic priest who was attacked at a monastery and dumped in a ditch in Brimfield, Mass.

The dispute in the Rhode Island case began in 2003 when Reyelt accepted an offer to sell property on Payne Road, just north of Barrington Beach, to the Danzells for $1.425 million. The Danzells retracted their offer after discovering the property was classified as a legal “non-conforming” use because there were two houses on one lot — meaning town approval would be required to make changes to either house.

The Danzells renewed their offer, with one change: They would pay $1.225 million at the closing and provide a $200,000 promissory note. If the Danzells received a variance to construct a new house or add on to one of the existing houses by the end of the year, they would pay the note in full. If a variance was denied, they would pay only $100,000 from the promissory note.

In his September 2007 ruling, Senior U.S. District Judge Ronald R. Lagueux said the Danzells only had to pay $100,000.

During yesterday’s arguments, DeSisto said, “I think this case highlights the distinction between desire and obligation.” Curhan said, “I actually agree with virtually all of [Lagueux’s] findings but I dispute his legal conclusions.”

While it’s not clear who will write the decision in that case, O’Connor is expected to produce about four opinions from the 1st Circuit cases.

This morning, O’Connor will hear arguments in another Rhode Island case. Assistant U.S. Attorney Donald C. “Skip” Lockhart and Providence lawyer George J. West are expected to square off in a case involving Anthony Lipscomb, a Providence man who has been sentenced to 16 years and 3 months in prison for cocaine trafficking and firearms offenses.

efitzpat@projo.com