Defendant, SherwinWilliams Company, (hereinafter SherwinWilliams, has moved that I recuse myself from this matter and cites as its reason my ownership (with my wife as tenants by the entirety) of our home situated in Lincoln, Rhode Island which we caused to be built in 1968-69. SherwinWilliams contends that that ownership creates an economic interest by me in the subject matter of the controversy and also makes me a party to this proceeding both the alleged economic interest and party status preclude my participation in this case according to Sherwin Williams. Further, and in any event, it is claimed by that defendant that a hypothetical, reasonable third person would deem my service as a judge in this matter as improper or, at least, as giving the appearance of impropriety. SherwinWilliams asserts the disqualification thus is mandated by reason at least of Article VI, Rule 1, Canons 2 and 3 of the Rhode Island Supreme Court Rules, the Code of Judicial Conduct, (hereinafter Code). C. A.
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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.
Filed August 11, 2005
STATE OF RHODE ISLAND
By and through PATRICK LYNCH
ATTORNEY GENERAL
V.
LEAD INDUSTRIES ASSOCIATION,
et al.
SUPERIOR COURT
:
:
:
:
: C. A. NO. 99-5226
:
:
:
DECISION
SILVERSTEIN,
J.
Defendant,
Sherwin·Williams
Company,
(hereinafter
Sherwin·Williams, has moved that I recuse1 myself from this matter and cites as its
reason my ownership (with my wife as tenants by the entirety) of our home situated in
Lincoln, Rhode Island which we caused to be built in 1968-69.
Sherwin·Williams
contends that that ownership creates an economic interest by me in the subject matter of
the controversy and also makes me a party to this proceeding – both the alleged economic
interest and party status preclude my participation in this case according to Sherwin·
Williams. Further, and in any event, it is claimed by that defendant that a hypothetical,
reasonable third person would deem my service as a judge in this matter as improper or,
at least, as giving the appearance of impropriety.
Sherwin·Williams asserts the
disqualification thus is mandated by reason at least of Article VI, Rule 1, Canons 2 and 3
of the Rhode Island Supreme Court Rules, the Code of Judicial Conduct, (hereinafter
Code).
The case was commenced by complaint filed with the Office of the Clerk of the
Providence County Superior Court on October 12, 1999. By order dated January 31,
1
The words “recuse” and “disqualify” are used herein interchangeably.
1
2000, the Presiding Justice assigned this matter to me “… for all matters.” Since that
time, in fact, I have presided over all matters in connection with this extremely
contentious case.
Those matters have included countless substantive and discovery
motions, many dealing with novel issues of law, and a seven-week jury trial to an
ultimately hung jury. A number of the rulings of this Court2 have resulted in petitions
seeking review by our Supreme Court. Indeed, at one point shortly before the jury trial
referred to above, the United States Supreme Court was asked by the defendants to stay
these proceedings while review of a decision and order of this Court was undertaken.
That request was denied. Presently pending before our Supreme Court is a writ of
certiorari reviewing an order of this Court with respect to the propriety of the State’s
engagement of outside contingent fee counsel in connection with this public nuisance
suit. Some evidence of the contentiousness with which this matter has been pursued both
by plaintiff and defendant is seen in the Court’s docket which covers more than one
hundred and twenty pages.
The travel of the recusal/disqualification issue is reflected in certain recent
correspondence found in the record. Specific reference is made to: (1) letter of July 7,
2005 Paul Michael Pohl, Esquire (of the firm of Jones Day, one of the attorneys for
Sherwin·Williams) to the Court, (2) letter of July 12, 2005 from the Court to Paul
Michael Pohl, and (3) letter of July 25, 2005 from Paul Michael Pohl to the Court.
At a previously scheduled hearing in this case on another issue held on July 26,
2005 in open court, I indicated that I was treating the July 25th letter as a motion to
recuse. At the hearing on that date I invited responses from all parties who desired to so
respond and set a deadline for filing such responses. Within the time frame set, I
2
The words “I” and “me” and “Court” and “it”, (referring to the Court), are used herein interchangeably.
2
received responses from defendants American Cyanamid and Cytec, expressly not
joining in Sherwin·Williams’ motion. On the other hand, defendants Atlantic Richfield
Company and NL Industries, Inc. filed a brief joint memorandum in which they stated
that “it appears (to them) that the provisions of the Code of Judicial Conduct noted by
Sherwin·Williams in its analysis apply.” Plaintiff, the State of Rhode Island, filed a
lengthy opposition to the motion to disqualify, complete with, for lack of a better term,
affidavits from three professors of law (which, on motion of Sherwin·Williams, the Court
has ordered stricken from the record). The State’s opposition addressed not only its view
of the merits of Sherwin·Williams’ position, but suggested certain nefarious or
inappropriate grounds for the Sherwin·Williams’ motion noting that trial on the merits
was scheduled to commence in early September. The Court also notes that third-party
defendant, Rhode Island Housing and Mortgage Finance Corporation, filed a brief
objection to Sherwin·Williams’ motion giving reasons and joining in part with the State’s
objection. On August 4, 2005 Sherwin·Williams filed with the Clerk’s Office a
Memorandum of Law and Supplemental Authorities which did not reach this Court until
Tuesday, August 9th (despite standing instructions in this matter that bench copies of all
filings be served on chambers.) No other submissions were received by the Court.
On August 5, 2005 the Court heard extensive argument from counsel for Sherwin·
Williams in favor of the disqualification motion, and from counsel for the State in
opposition thereto.
This Court starts its discussion of the disqualification issue by noting that what
probably often occurs when a judge is asked to disqualify him or herself from sitting on a
matter – that is to say - for however short a period of time the judge becomes central to
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the case and to the controversy among the parties rather than simply serving as a referee
of the dispute. That fact itself, for fact it is, and indeed it has occurred in this case
detracts from the role of the judge envisioned by the Preamble to the Code which inter
alia sets forth that:
The judge is an arbiter of facts and law for the resolution of
disputes and a highly visible symbol of government under
the rule of law.
Here the movant, joined by two other defendants contend that recent discovery
has fleshed out the relief sought by the State in this now almost six year old case.
Essentially movant states that it believes that remedies sought by the State with respect to
pre-1978 homes in Rhode Island, possible inspection and remediation, would have an
economic impact on my home and upon me. Further, Sherwin Williams claims that
previous rulings by the Court (without disclosure of the facts as to my house) have
prevented defendant’s discovery efforts as to pre-1978 homes generally, and that this
Court’s July 3, 2002 Decision denying defendants’ motion for an order requiring
individual notice to each property owner and specifying the manner in which owners
shall be heard, together with the Order entered in connection therewith are glaring
examples of actions which required disclosure of the alleged economic interest of the
Court in the outcome of the case.
The State counters Sherwin·Williams’ position by suggesting that the Court’s
interest here is no different from that of any other member of the public. The thrust of
plaintiff’s case is one of public nuisance resulting from the manufacture, distribution
and/or sale of lead pigment by defendants and/or by their predecessors in interest for use
in lead paint or coatings, and while not all members of the Rhode Island public own pre-
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1978 homes (in fact it is estimated that between 250,000 and 331,000 or somewhere
around 80% of the housing units in the State of Rhode Island were built before 1978),
plaintiff contends that all members of the general public have been impacted. The State
seeks money damages for its expenditures resulting from the alleged public nuisance and
seeks abatement as equitable relief in order to rid the State of the alleged public nuisance.
Plaintiff presses upon the Court the concept that an interest shared with the general public
is not a disqualifying interest and need not be disclosed. Plaintiff tells us that at most
such an interest is “remote, contingent, indirect or speculative”. The State points to cases
in which a judge is asked to review utility matters which may impact rates charged to the
public by the utility where the judge is a consumer of the utility services. Under such
circumstance, recusal is not required because the judge has no position that differs from
that of any member of the general public. In such cases recusal is not required and
indeed may be prohibited.
This Court believes that in this case there is no cause for recusal. The Court
believes that his position is as a member of the general public only and under the
circumstances neither disclosure nor recusal are required.
Harkening back to the
Preamble to the code “The canons and sections are rules of reason.” The Court here, not
having any interest beyond that which is held by the general public, believes it was not
obligated to disclose even the facts that were disclosed in the July 12, 2005 letter.
Further as to that letter, I offered (with my wife) “… to execute an appropriate waiver in
connection with the issues implicated in the lead pigment case.”
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There follows this Court’s analysis of the specific provisions of the Code which
movant seems to believe are implicated in its motion.
The primary basis for Sherwin·Williams’ contention as understood by the Court,
is that Code Cannon 3E in pertinent part provides:
E. Disqualification.
1. A judge shall disqualify himself … in a proceeding in
which the judge’s impartiality might reasonably be
questioned, including but not limited to instances where:
(c) the judge knows that he … individually … or the
judge’s spouse …has an economic interest in the subject
matter in controversy … or has any other more than de
minimis interest that could be substantially affected by the
proceeding;
(d) the judge or the judge’s spouse …
(i)
is a party to the proceeding …
(iii) is known by the judge to have a more than
de minimis interest that could be
substantially affected by the proceeding;
…
While Rhode Island precedent is scarce, numerous other courts applying either
their version of the Code or in the case of the Federal Courts, the statutory codification
thereof as enacted by Congress have been called upon to rule under somewhat analogous
factual patterns.
The Court suggests that the factual patterns are only somewhat
analogous because it has found no case nor has any been called to the attention where the
issue at hand dealt with proposed recusal or disqualification of a judge in the face of a
claimed statewide public nuisance.
While a great number of cases have been called to the Court’s attention by each
side, the Court does not believe under the unique circumstances of this case that a
detailed examination of the cited judicial thinking is helpful. Rather the Court notes and
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relies on the language expressing the thought of the Tenth Circuit Court of Appeals in a
1980 opinion reversing a United States District Court judge who sua sponte had recused
himself in connection with certain anti-trust litigation:
“…an interest shared by the judge in common with the
public is distinguishable (from cases where the judge has a
specific interest) for at least two reasons. First, the policy
to promote public confidence in the impartiality of the
judicial system is not served to as great an extent by
disqualifying a judge who would receive only such a
benefit. It is not simply a question of de minimis effect; a
personal benefit or detriment shared in common with the
community at large is perceived to have a different
psychological effect on a judge than would a benefit or
detriment not so shared.” In re New Mexico Gas Antitrust
Litigation, 620 F. 2d 794, 797.
Incidentally, that Court went on to address as its second reason the burden placed
on the Court’s system when a recusal is necessary. For example, anecdotal evidence
suggests here that many members of the judiciary both at the trial court level and at the
appellant level are similarly situated with respect to their homes as am I.
While Sherwin·Williams notes that issues of this nature oft times come up in class
action proceedings (see my letter of July 12, 2005 discussing how in a recent class action
matter involving suits in the United States District Court for the District of Rhode Island,
and in the Superior Court, the federal judge and I, together with our spouses, waived any
entitlement to benefits resulting from the settlement of those cases which will benefit
slightly in excess of 116,000 Blue Cross subscribers.)
The case presently before the Court is, of course, not a class action.
It is an
action brought on behalf of the State of Rhode Island. The claim for damages herein by
the State is not a claim to which the members of the general public each have their own
separate entitlement, and as a matter of law and fact, the damages asserted here inure to
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the benefit of the plaintiff state. So too the equitable remedy sought of abatement directly
will benefit the state, and as to any individual property owner it is at most “remote,
contingent, indirect or speculative.”
The Code as embodied in the Rhode Island Supreme Court Rules, of course, does
not specifically provide for a waiver. As noted above the Preamble provides inter alia
that the Code and its constituent elements are rules of reason. This Court believes that
reason dictates that a waiver should be permitted (although the Court does not believe it
necessary) in order to obviate any possible appearance of impropriety.
As explained
above, the Court believes that within the contemplation of the Code none of the
provisions relied on by Sherwin·Williams, in fact or in law, result in the need or indeed
the right of the Court to disqualify or recuse itself. In Kelly v. Rhode Island Public
Transit Authority, 740 A.2d, 1243, 1246 (R.I. 1999), our Supreme Court stated:
“It is a well recognized principle that a trial justice should
recuse himself or herself in the event that he or she is
unable to render a fair or an impartial decision in a
particular case. (Cite omitted). It is an equally well
recognized principle that a trial justice has as great an
obligation not to disqualify himself or herself when there is
no sound reason to do so as he or she has to disqualify
himself or herself when a proper occasion to do so does
arise. (Cite omitted).”
In keeping with that admonition, I respectfully deny the motion of
Sherwin·Williams joined in by two of the other defendants and reiterate my intention,
together with my spouse, to execute an appropriate waiver as aforesaid.
The Court believes it would be remiss if it failed to comment on the suggestion by
the State of nefarious grounds for the filing of the motion dealt with above. While the
Court is cognizant of the fact that the motion was filed approximately a month and a half
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before the trial after a almost six-year span of time from the original filing of this case, it
holds that no evidence has been presented to it by which it could hold that an improper
purpose motivated Sherwin·Williams filing of the motion to disqualify.
An order consistent with the provisions of the above decision simply
incorporating the decision and denying the motion shall be presented by the State
forthwith.
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