Olson

Larisa

In a highly unusual move, the U.S. Supreme Court will be asked Friday to weigh in again on the unrelenting dispute over who should argue the state’s case to keep control over 31 acres of Narragansett Indian land in Charlestown.

The state and the Town of Charlestown have been engaged in a bitter war of words since the nation’s high court rejected requests just weeks ago that Rhode Island’s half-hour of arguing time be split among several lawyers.

Charlestown’s assistant solicitor of Indian affairs, Joseph S. Larisa Jr., proposed settling the issue by tossing a coin, but Governor Carcieri and Attorney General Patrick C. Lynch refused. They both back former Solicitor General Theodore B. Olson as the best choice to argue the case.

The court clerk has ordered the parties to submit a letter, signed by Larisa and Olson, choosing a single attorney by noon Thursday. The court is set to hear the case Monday.

But Larisa made a final pitch for relief yesterday by filing an emergency motion asking the justices to reconsider the town’s request to divide arguing time with the state or order the parties to flip a coin. The court will weigh Larisa’s motion in conference Friday morning.

In it, he noted his 10 years’ involvement with the case and overtures to settle the issue based on merit through a moot court.

Lynch late yesterday sent the court a letter opposing Larisa’s request.

“For the Town of Charlestown to think that the court is going to change its position on this issue now, a month later and a week before the oral argument, is sheer lunacy,” attorney general spokesman Michael J. Healey said in an e-mail. “This remains one of the most important states’ rights cases to come before the U.S. Supreme Court in recent times. The Town of Charlestown, through its part-time lawyer — who has zero experience arguing before the U.S. Supreme Court — is holding the State of Rhode Island’s interests hostage.”

Olson, too, wrote the court, noting that the governor would support a split that would give Olson 20 minutes of arguing time and Larisa 10.

If the court opts not to consider Larisa’s motion, Olson asks that he be designated as counsel since he has the support of two of the three parties.

He added, however, that if the court compels a game of chance, the governor, Lynch and Charlestown each get “an equal voice in that process.”

“[I]n cases of multiple parties, complete agreement may not always be possible, and the wishes of a majority of the parties should not be permitted to be foreclosed by a minority, particularly where, as here, the majority of the petitioners are constitutionally authorized to represent the entire State and its interests, whereas the minority party is not,” Olson wrote.

Larisa last night supported Olson’s proposal for divided time.

The conflict exposes a debate about who is better equipped to argue before the U.S. Supreme Court: a lawyer with more time spent on a case; or one with more experience before the high court. It would be Larisa’s first Supreme Court appearance, though he has argued the issue through the lower courts over the past decade. Olson has tried 50 Supreme Court cases, including the one that decided the 2000 presidential election in George W. Bush’s favor.

Supreme Court rules allot each side a half-hour for oral argument and specify that only one lawyer on each side will be heard, unless the court decides otherwise.

The court typically will not designate who should argue when parties can’t agree, according to a guide on practicing before the Supreme Court. The clerk’s office advises counsel that if they cannot agree, the matter should be resolved by drawing lots. The guide cites only two instances in which the court selected the lawyer.

There is very little precedent about how the court might settle the issue because such fierce conflict, particularly so close to the court date, is rare, said Steven H. Goldblatt, director of the Supreme Court Institute at the Georgetown Law Center.

“They usually get resolved quietly and internally,” he said, adding “From the standpoint of preparation, you would want to know who was going to argue [by now].”

Both Olson and Larisa are preparing. Larisa observed the court earlier this month and says he primes well into each evening. Olson could not be reached for comment immediately.

Rhode Island brought the suit against the Department of Interior almost a decade ago after the department agreed to place 31 acres in Charlestown in trust for the Narragansett Indian tribe. Trust status would free the land from most state and local laws and place it under federal and tribal control. Rhode Island and Charlestown leaders fear it could open the door to a casino or other venture immune to state oversight.

The state, which was joined in the suit by Charlestown, has lost in all the lower courts.

kmulvane@projo.com