PROVIDENCE – The American Civil Liberties Union jumped into the Champlin’s lawsuit against the R.I. Coastal Resources Management Council this week, filing an “amicus curiae” or friend of the court brief.
Steven Brown, executive director of the ACLU’s Rhode Island affiliate, said the ACLU has no interest in the case itself, now before Judge Netti C. Vogel in R.I. Superior Court, in which Champlin’s Realty Associates is seeking to reverse the CRMC’s rejection of a permit for a marina expansion on Block Island.
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“Our brief addresses a very narrow interest in this case that concerns the availability of the so-called deliberative process privilege to restrict the testimony that may be offered,” Brown said. The brief compares the issues in the Champlin’s case to those in the Watergate coverup, saying “claims of presidential executive privilege and deliberative process privilege often are closely affiliated.”
Asked how the ACLU became involved, Brown replied: “We were in touch with the Conservation Law Foundation, which is involved in the suit, and we learned of the court’s consideration of the deliberative process privilege to restrict the proceedings.
“The ACLU has long had an issue about the use of executive privilege,” especially in civil rights cases, he said. “Based upon our understanding of this particular privilege, it’s simply not a privilege the court should be recognizing in this kind of case.”
R.I. Superior Court is preparing to hold hearings into alleged misconduct by the CRMC in its handling of the application.
The Conservation Law Foundation has participated in the case from the start, because it opposes the expansion of Champlin’s Marina. The proposal rejected by the CRMC last March would “nearly double the marina’s capacity, displace 25 percent of the town’s public mooring field, privatize 13 acres of water … and restrict the public’s access to and use of the [Great Salt] Pond,” the CLF says on its Web site.
“The case has been exciting,” said Jerry Elmer, the CLF’s lawyer. “This was a routine permit application by Champlin’s Marina,” yet it has spawned two contentious lawsuits, this one and a civil rights suit against the governor that was quickly rejected.
In January, when the CRMC talked about privileges it might assert, Elmer recalled, “CLF said we’d object very strongly to any attempt to assert the deliberative process privilege in this case.” The group questions not only whether that privilege would be appropriate in this particular case but whether it should be used at all, he said.
The CRMC eventually filed papers asserting the quasi-judicial privilege, he said, but did not assert the deliberative process privilege. “The CRMC lawyers made a careful, deliberate, well-thought-out decision” not to assert the deliberative process privilege, Elmer said. The CLF therefore did not file the memo it had prepared objecting to the use of that privilege.
To the CLF’s surprise, Elmer said, the judge then rejected the use of quasi-judicial privilege in the case but granted the CRMC the use of the deliberative process privilege. After a heated courtroom discussion, he said, Judge Netti C. Vogel told the CLF it could file a motion for reconsideration of that privilege.
“The matter is extraordinary for a number of reasons,” Elmer said. “It is very, very rare that a court reaches out and grabs a solution that no one has requested.” And although amicus curiae briefs such as the ACLU’s are relatively common, “they are fairly rare in Superior Court in Rhode Island.”
On Wednesday, the CLF filed a motion entitled “Motion of Conservation Law Foundation for ‘Reconsideration’.” The title bears a footnote that says “CLF styles this motion as a motion for reconsideration at the express instruction of the Court. In fact, this is not a motion for reconsideration at all, as the matter under consideration – whether a deliberative process privilege ought to be recognized in Rhode Island – was never the subject of any prior motion.”
The motion itself says, in part: “Respectfully, this Honorable Court was mistaken to rule on an issue of privilege that was not before it, had not been briefed or argued, and where the applicable burden on a moving party was neither recognized nor met. For these reasons, and for those set forth in CLF’s memorandum attached hereto, CLF respectfully requests that this Honorable Court reconsider its apparent ruling recognizing the deliberative process privilege.”
Asked for comment on the CLF motion, Laura Ricketson, CRMC’s public educator and information coordinator, said: “The CRMC does not understand this filing because no one is asserting that privilege in this case.”
“It’s bizarre,” said Champlin’s lawyer Robert D. Goldberg. “I need them [the ACLU] like Custer needed another Indian. I don’t really understand what they’re up to or trying to do; it’s utterly out of context in this case.”
Goldberg said he planned no response to the ACLU and CLF filings. “I don’t think it warrants a response from me at this time, and I haven’t seen any of the other lawyers responding, either.”
Separate issues in the case were heard Thursday by the R.I. Supreme Court, which rejected a motion by Attorney General Patrick C. Lynch to limit or cancel the lower-court hearing, clearing the way for it to begin March 19.
Brown, when asked whether he foresees any further involvement by the ACLU, replied: “If this case ends up before the R.I. Supreme Court, I expect we’d file a similar brief at that level as well.”
The current R.I. Superior Court case consolidates “Champlin’s Realty Associates v. Michael Tikoian, individually, and in his capacity as chairman of Coastal Resources Management Council, et al.” with “Town of New Shoreham v. Coastal Resources Management Council.” Additional information on the parties involved can be found at www.champlinsresort.com; www.crmc.ri.gov; www.town.new-shoreham.ri.us; www.riaclu.org; and clf.org.
