UPDATE: Judge Fortunato Rules in Favor of the Beacon Board Labor Reps
As I mentioned earlier, Beacon Board members George Nee and Henry Boeniger are trying to prevent Governor Carcieri from removing them from the board. As luck would have it for Nee and Boeniger, their appeal is being heard by pro-labor (according to Dan Yorke, though Andrew would characterize him as a bit more radical) Judge Stephen Fortunato. The ruling should come down soon. Stay tuned.
MORE: Dan Yorke was there and thinks that Judge Fortunato is going to rule in favor of Nee and Boeniger because the Governor’s lawyers “got boxed” by that of Nee and Boeniger and because of some statements made by the Judge.
Yorke quoted Fortunato, who said “we cannot ignore as judges what we know to be true as men” and that he point was clear that this case has a legal and political dimension. In short, it was is a legal mess.
According to Yorke, Judge Fortunato–who Yorke also said admitted he didn’t know much about the case (!)–seems inclined to support the idea of a hearing for Nee and Boeniger to better explain why they were being removed. However, he doesn’t think that the Governor can give them a fair hearing because he seems to believe that the Governor is already predisposed against Nee and Boeniger.
The Governor’s lawyers said that no such predisposition existed, but according to Yorke they missed their chance with that line of defense because they should have asserted that the Governor has the statutory rights as the Executive to remove them for cause: no hearing was necessary.
VERDICT: According to WPRO (here’s a link to the ProJo report), Judge Fortunato issued a 30 minute decision granting a temporary restraining order until a hearing was held in his court next Friday. He said the Governor was acting as the investigator, prosecuter and “judge” all rolled into one and that the Governor couldn’t be impartial. He suggested the go to arbitration. The hearing next week will be to determine whether to issue a permanent injuction.
Dan Yorke offered that Judge Fortunato is either way over his head on this one or acting too ideologically. Yorke also said that Fortunato’s characterization of the Governor’s action indicates that the Judge just didn’t get the conclusions of Beacon’s own internal audit. I would add that he doesn’t appear to understand the proper function of the executive in government. (This isn’t the first time I’ve taken issue with Judge Fortunato, incidentally). Yorke later pointed out that instead of relying on a Constitutional reading of the role of the Executive and the Beacon by-laws, the Judge basically fell back on his ideology.
FINAL UPDATE: This morning’s ProJo has more, especially with regard to Judge Fortunato’s thinking:
Among the issues raised at the hearing was the legal rights of Beacon’s board members considering the company’s unique status as a nonprofit mutual created by the legislature.
“The question is, what is the status of this company?” Fortunato said.
It appears, he said, that Beacon is “in a class by itself.”
“The governor, by statute and by the [company] bylaws, is involved in ultimate control of this company,” Fortunato said, “at least in his power to remove board members, at least for cause.”
Four of Beacon’s seven board members are gubernatorial appointments.
Fortunato said, however, that Governor Carcieri’s general charges that the board either engaged in misconduct or was negligent are not specific enough to justify removing Nee and Boeniger from the board.
“I’m not saying whether there has or has not been some dereliction of duty at Beacon,” Fortunato said, “but it must be determined by an impartial fact-finder, and the governor does not fit into that category.”
Our system “doesn’t allow someone to function as investigator, prosecutor and judge,” he continued, “and that’s what the governor has done here.”
Hodgkin, the governor’s executive counsel, said, “that assumes that an evidentiary hearing is required.” Hodgkin argued that the board members are not state employees and therefore are not entitled to an evidentiary hearing.
“The plaintiffs have no contractual rights with their position,” added Carlotti, the governor’s co-counsel.
Fortunato, however, asserted the two men’s right to a hearing with an impartial hearing officer, saying that even if the bylaws grant the governor the authority to remove board members, “he cannot do so arbitrarily or capriciously for any reason. He must do so for cause.”
Again, I would think that the results of the internal audit would be “cause” enough.
More proof that Beacon Mutual is a proxy for everything wrong in this state.
It was Judge Fortunato who dismissed the Board of Elections case against Governor Carcieri, so I have to give him credit for making fair rulings.
Still, I don’t think it’s out-of-line to point out that someone who describes the job of a judge as being “a part-time referee in the class struggle” might bring certain biases to particular cases.
Typical Fruit Loops Fortunato.
He’s not a judge he’s an ideologue in a robe with a strong socialist/leftist/wanking off with unions history.
Next Friday’s hearing is for show.
That’s all it is.
Doesn’t matter what case the Gov’s lawyers bring Fruit Loop will side with his union hack friends.
Gov’s lawyers should not put much effort into next Friday.
The fix is in!
They should concentrate on the legal arguments they will make before the Supreme court on appeal.
Beacon Mutual and its’ ugly under belly are a reminder of just how far and wide the corruption goes in this state.
Don’t forget Judge Fundberg. She refused the Dept. of Business regulation request to look at the computer hard drives at Beacon.
That was widely considered to be a terrible judicial decision.
The corruption runs wide and deep and on both sides of the aisle.
It’s not a Democrat/Republican game.
It’s an insiders game.
Why would anyone be surprised by that ruling. Once again the mob rules and the law sits on a shelf. These board members had a contractual obligation with the taxpayers of the state to look out for the interest of the policy holders. There contract had clear language that allowed the Govenor to remove them for cause. I guess murder is the only just cause in RI.
It is amazing that we sit on the outside and do nothing to make a difference. Where is the outcry from the small business owner? This State and it’s citizens are pathetic!!!!
Those two guys’ terms are almost up. Carcieri could’ve quietly let them expire, then appointed his people. Instead, a governor who has shown terrific political instincts over the past four years has overplayed his hand.
Unfortunately, this Beacon saga shows just how broad and deep go the roots of Rhode Island’s “culture of corruption.” Indeed, it has become so ingrained in the culture that many people who live here (as opposed to observers from other states) sincerely cannot see why the behavior on display is wrong. Moreover, as RI’s economic pie shrinks, we should logically expect this type of behavior to intensify, as different factions fight to hold onto their respective slices of it. As evidenced by the latest Rasmussen poll, the “system” in Rhode Island now seems to be very closely split between those that want to change the system, and those who will resist this at all costs, because they believe change represents a loss for them (be it political, ideological, or economic). Sad to say, as in all similar cases, the advantage lies with the latter group, because the former can simply leave (and improve their lives in the process, with less aggravation and risk). I therefore believe that the outcome of the battle now raging in RI utlimately depends on the results of the federal and state anti-corruption investigations that have been underway for so long (and which now look like they have been extended by Beacon). If the indictments are wide and deep, they may provoke sufficient outrage to fundamentally alter the political culture in RI (either through legislative changes or change in the membership of the General Assembly). If this doesn’t happen, I think a lot of people will simply leave the state over the next few years, after concluding that the outlook for change is hopeless.
Let’s not get carried away here. Judge Fortunato, who I have argued before a number of times, did as expected. He issued a TRO and kept the status quo until the issues before him could be sorted out. He needs to have briefs prepared so that he fully acquaint himself with the situation. It’s clear that he sees Beacon as a unique entity, neither exactly a public agency or a private company. It’s an interesting legal issue.
Dan Yorke and others are way out of line attacking the Court for this ruling. Whether or not you like Nee and Boeniger, the Court House door is open for them, just like anyone else. Fortunato is most assuredly not in anybody’s pocket. The Couts issue many TROs that end up dissolved when an examination of the issues determines that the plaintiff ultimately can’t win. All the judge was saying that as of yesterday he didn’t know enough, and therefore a TRO was appropriate and predictable.
Hey I heard that Judge Fortunato was out drinking last night with Patrick.
J Mahn
Andrew, you say you’re giving Fortunato credit for fair rulings?!?! If Fortunato had ruled against Carcieri on the Board of Elections case, it would have been simply outrageous and no doubt overturned by a future court.
This ruling is merely giving Nee and Boeniger an additional procedural step. Carcieri hasn’t overplayed his hand, he’s right and in the end Nee and Boeniger will be history.
That’s called being courageous.