01:00 AM EST on Thursday, January 6, 2005

EDWARD ACHORN recklessly expressed the fear that our courts could be governed by the will (and perhaps the whim) of the legislature, rather than by the rule of law. ("Your vote means nothing to Murphy and Montalbano," Commentary column, Dec. 21; "Legacy of a power grab," Commentary column, Jan. 4). Of course, Mr. Achorn is entitled to his opinion. And, of course, he is entitled to criticize anything and everything about government, something that he does with both alacrity and regularity. Ironically, our courts -- the same ones he criticizes -- protect that right.

Generally, I try to ignore Mr. Achorn's columns, not only because of what he says, but also because of how he says it. Unfortunately, I have come to realize that I cannot wholly ignore his columns. This is not because what he says is important, but because what he says is dangerous. Apparently, we have different worldviews.

Mr. Achorn rants against abuses in government, whether they be actual, perceived or imagined. I prefer to deal with real problems in a productive and reasoned way, rather than through a confrontational, take-no-prisoners style. Consequently, although I often disagree with what he writes, until now I have chosen not to voice my opposition.

My view has changed. Why? Because his most recent columns do more -- far more -- than criticize actions of legislative leaders with whom he disagrees. He is upset by questions raised by Rhode Island House Speaker Willian Murphy and Senate President Joseph Montalbano about the effect of the separation-of-powers amendment on the Lottery Commission and the Coastal Resources Management Council.

I am one of two lawyers retained by the Lottery Commission to analyze how the separation-of-powers amendment affects that commission's makeup and governance. I have been asked for an honest opinion, not for an advocate's piece. I am working on that analysis. Whatever my view ultimately may be, it will be what I believe is legally correct. Some may agree with my analysis; others may not. That is not surprising. It happens all the time, and particularly when, as here, complex issues are raised and analyzed.

There are no clear-cut answers to many constitutional questions. That is why they often end up in the courts to be resolved. By the way, that is a good thing, not a bad thing. The courts are the places where these difficult issues should be resolved. Our courts, not our legislature, not our lawyers, and certainly not our newspaper columnists, should decide constitutional questions.

The courts have a hard and often thankless job. However, it is their job to decide legal questions presented, whether they like them or not, and whether they would like to defer on them or not. That is one reason why Mr. Achorn's columns disturb me as much as they do.

He asks: Why would Speaker Murphy and President Montalbano raise such "flimsy" questions about the separation-of-powers amendment and seek judicial answers? He then answers his own question by impugning the integrity not only of the legislative leaders, but of the entire judicial system and all of its participants. He suggests that our courts may be tempted to "shade" their constitutional rulings in favor of the legislature.

Why? Because the legislature decided last year to allow Chief Justice Frank Williams the ability to exercise greater control over the judiciary's budget. Now, for those who truly are interested in separation of powers, isn't that a good thing? Shouldn't the judiciary have greater control over its budget? It seems to me that an independent judiciary (something we all want) is better served when the chief justice has reasonable control over the court's budget.

Mr. Achorn apparently thinks otherwise. In a number of columns, he has described the process whereby Chief Justice Williams gained some budgetary independence as a "power grab." I view what happened differently: as a sharing of budgetary control along lines that make sense.

What disturbs me most about Mr. Achorn's columns is his drive-by-shooting style. He blasts away at the entire judicial system, implying that legal decisions could be made on a partisan or political basis, rather than on their merits. That is innuendo of the worst kind. He laments that "the way politics is conducted in Rhode Island, unfortunately, forces decent people to raise such awful questions." Mr. Achorn is right. The questions he raises are awful.

He is wrong, though, in stating that decent persons would raise them. Decent persons base their decisions on fact, not innuendo. They fairly criticize; they do not seek to inflame, outrage and slander. Decent persons target problems for resolution; they do not take target practice at the judiciary. Finally, decent persons will want to see how the issues Mr. Achorn complains about are presented, make their way through the courts, and ultimately are decided before they pass judgment.

As a lawyer, I appear almost daily in our courts, state and federal. I take pride in my work; and I try my best to represent clients zealously and ethically. As a lawyer, I am also honored to be an officer of the courts. Consequently, when Mr. Achorn worries that judicial decisions may be "shaded" in a certain way based on perceived extrajudicial influences, he insults not only our judges, but, in my view, all judicial-system participants.

Although I don't always agree with every court decision (especially when I lose), whether I win or lose a case, I know that the win or the loss is merits-based. I have great confidence in my abilities as a lawyer, but I have even greater confidence in our courts. They work well, laboring tirelessly and fairly for all our people.

I pray that the public never loses faith and confidence in our courts. History teaches us that when courts fail, tyrants rule. That is why I hope and trust that the people of our state are, in fact, decent and wise enough not to accept Mr. Achorn's unwarranted and unfair personal attacks on our courts and our chief justice.

John A. Tarantino, of East Greenwich, is a lawyer who practices in Providence.