Scott Mayerowitz of the Projo gives a concise explanation of the “slippage” formula that applies to Rhode Island’s existing gambling facilities…
The deal the state struck with Lincoln Park protects it through 2020; Newport Grand is protected through 2015.The slippage clause was one of two incentives for Lincoln Park and Newport Grand operators considered by the General Assembly in 2005. The other was a deal in which the percentage of revenues paid by Lincoln and Newport would automatically drop if the legislature allowed a new casino to operate in Rhode Island at a lower tax-rate.
The slippage clause takes the average revenue at each facility in the two years prior to a casino opening [in Rhode Island] and assumes that income there should grow each year by inflation. If revenues drop below that figure, the state has to make up the loss.
In a Projo letter to the editor, State Representative Larry Ehrhardt argues that while the slippage clause remains in effect, the only fiscally sane way to authorize a new casino in Rhode Island is to make the new casino owners directly responsible for the slippage payments…
Since the future is unknowable, the only way the state can protect itself would be to require Harrah’s to take full responsibility for the slippage payments to Lincoln and Newport. Deputy Finance Chair Paul Crowley stood and reinforced my remarks, by agreeing that any new operator must be required to take that risk.From the other side of the aisle, Representative Gordon Fox also believes this is an idea worth discussing…
If this vote should pass, nothing prevents a discussion with the casino, with Harrah’s, that if there is slippage . . . that they make it up,” Fox said last week.However, given the language of the current version of the casino amendment, it may not be that simple. Could the real reason that casino supporters are so intent on specifying property-tax relief in the constitution be to block the legislature from being able to make a casino owner take responsibility for slippage payments? In other words, if the General Assembly tries to pass legislation (if the current casino amendment passes) making Harrah’s directly responsible for payments to Lincoln and Newport, would Harrah?s (and their lawyers) say “sorry, can’t be done”. “The Constitution says any revenue you collect from us can only go towards property tax-relief”?
We’ve now got at least two questions that should be asked if a casino debate happens:
- If circumstances work out so that Harrah’s and the Narragansetts end up taking huge profit checks at the same time their business is driving the state in the shortfall, will their response be “sorry, a deal-is-a-deal”. “We got ours, and budget shortfalls are your problem”, or is there a contingency plan?
- Do Harrah’s, the Narragansetts, Tim Williamson, Stephen Alves, William Murphy and/or any other casino supporter that would like to chime in agree or disagree that the current language of the casino amendment allows the state to hold Harrah’s directly responsible for slippage payments?
Up until Friday, the quasi-official narrative of the disposition of the Derderian trial was that all sides wanted a plea deal, but could not agree on a sentence. Becoming frustrated with an impasse in the negotiations (and perhaps with some confusion within the Attorney General’s office), Judge Francis Darigan directly negotiated a sentence with the defendants, over the objection of the Attorney General, in return for a nolo contendre plea.
However, in his formal sentencing statement on Friday, despite taking “full and total responsibility for the acceptance of these pleas and for the sentences which will be imposed on the Defendants”, Judge Darigan described a process different from the quasi-official line. Here is the relevant part of Judge Darigan’s statement (via The Dan Yorke Show’s document archive)…
This Court was well aware that all parties desired to conclude these cases without a trial. As the structure of theses (sic) cases and the issues for the trial became clearer and more crystallized, the Court began to share this opinion.In legal parlance, “the parties” usually refers to both sides, the prosecution and the defense. If that is the meaning here, something different from a judge taking it upon himself to negotiate with the defense in order to resolve a case is being described. Instead, we have both sides — Attorney General and Defense — asking Judge Darigan to step in and end the case.
As the date for the trial approached, the Defendants clearly indicated to the Court and the Attorney General’s Office that they wished to change their pleas.
It was at this time that the parties asked the Court if it would accept a change in the pleas and impose sentences to which the State, if it wished, could object.
There is the qualifier — Judge Darigan says that the State retained a right to “object” even after they asked him to impose a sentence. Does that mean that when the Attorney General’s office asked Judge Darigan to impose a sentence, they thought they were retaining the right not to accept a deal (but if they were worried that they would not like the Judge’s decision, why ask the Judge to step in in the first place?) or does retaining the right to “object” simply mean that the AG’s office remained free to express displeasure with the sentences imposed by the Judge (but why does the AG’s office need the permission of the Judge to express their opinion after a case has been decided?).
Despite Judge Darigan’s attempt to lay out the provenance of this ruling in detail, it is still unclear whether he believed he was acting in concert with both parties or in concert with just the defense at the time he decided on a sentence. [Open full post]
On his WPRO-AM website, Dan Yorke has posted the state’s sentencing recommendation in the Derderian brothers case. The sentencing memo casts serious doubt on whether defense efforts to shift the blame to the foam-manufacturer were at all credible. The prosecution investigated this issue thoroughly and would have made the case that no evidence supported the claim that fire-retardant foam had been ordered, but a different product was shipped…
When the Defendants bought the Station, they bought both the assets and the liabilities of the business. One of the nightclub’s liabilities was its eroding good will in the residential neighborhood that abutted its location on Cowesett Avenue. For years, neighbors had complained to the authorities about the way the club had been run, including, but not limited to, the amount of noise that emanated from the club….The memo suggests that Michael Derderian received the harsher of the two sentences because he was the one who made the actual decision to purchase the foam. [Open full post]
The Defendants visited the closest and most vocal neighbor shortly after purchasing The Station. In an effort to ease the neighbor’s concerns and complaints, the Defendants offered to buy him an air conditioner so that, even when it was warm, he could keep his windows closed, thereby reducing the amount of noise that he actually heard from The Station. The neighbor declined the offer.
During the same visit, which took place on the deck of the neighbor’s house, the neighbor casually informed the Defendants that he worked for a company that sold polyurethane foam. At the time, the neighbor was involved almost exclusively in the sale of such foam for use as packing material to protect products during shipping. The neighbor nevertheless offered his thoughts about sound deadening options, including the fact that foam had sound deadening qualities.
Documents show that soon after the visit to the neighbor?s house, Michael Derderian purchased the highly flammable polyurethane foam that line the south and west walls of The Station from the foam company for which the neighbor worked. The investigation of the fire revealed, and the trial evidence would have shown, that no person from or on behalf of the company from which Michael Derderian bought the foam every made any representations to Michael Derderian about the flammability of the foam. Indeed, the evidence shows that neither the neighbor nor any other person at the foam company with whom Michael Derderian may have dealt ever told him that the foam was fire retardant. Sadly, and conversely, it is equally true that none of these individuals ever advised Michael Derderian that the foam was not fire retardant.
Most significantly, as it relates to the counts on which the Defendants are about to be sentenced, Jeffrey and Michael Derderian never asked for objective proof that the foam that they bought and installed was flame resistant or otherwise satisfied the Rhode Island Fire safety Code…
I had been thinking about a Robert Whitcomb column earlier, and it could not have been more timely. Writes Whitcomb:
The terminology has been successful in cutting taxes for the wealthy and reducing programs that particularly assist the middle and lower classes. More generally, it makes Americans forget that the socio-economic walls are getting higher. Meanwhile, although traditional GOP views have included (to me admirably) balancing the budget, the budget deficits swell and areas of government grow like Topsy (in part, of course, because of 9/11), but the “conservative, small-government” Republicans don’t seem particularly self-conscious about that. They can change the subject to, say, gay marriage.
However much the bulk of that paragraph might raise questions worthy of consideration, the closing sentence betrays a bias that undermines all the rest. The Republicans (much less conservatives) are not the ones pushing the subject of same-sex marriage into the light. Moreover, one cannot fault them for seeking to write something explicitly into law when judges seem inclined to leverage the lack of such explicitness in order to codify the opposite policy.
As for whether conservatives are “self-conscious” of the Republicans’ abandonment our other priorities, I’d suggest that Mr. Whitcomb keep his eyes open during elections to come.
Rhode Island’s marriage law is astonishingly specific when it comes to which relatives men may not marry:
Men forbidden to marry kindred. — No man shall marry his mother, grandmother, daughter, son’s daughter, daughter’s daughter, stepmother, grandfather’s wife, son’s wife, son’s son’s wife, daughter’s son’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s son’s daughter, wife’s daughter’s daughter, sister, brother’s daughter, sister’s daughter, father’s sister, or mother’s sister.
Indeed, the legislature is so specific as to add an entirely separate section to spell out the same for women:
Women forbidden to marry kindred. — No woman shall marry her father, grandfather, son, son’s son, daughter’s son, stepfather, grandmother’s husband, daughter’s husband, son’s daughter’s husband, daughter’s daughter’s husband, husband’s father, husband’s grandfather, husband’s son, husband’s son’s son, husband’s daughter’s son, brother, brother’s son, sister’s son, father’s brother, or mother’s brother.
And it added yet another section to affirm the status of marriages if somehow contracted in contravention of the law:
Incestuous marriages void. — If any man or woman intermarries within the degrees stated in 15-1-1 or 15-1-2, the marriage shall be null and void.
So why, given all of this specificity, would the Rhode Island legislatures of the past not have specified whether men could marry men and women women? Well, a person not set on bending culture and law to his or her social ideology might reasonably suggest that the legislatures of yore did not deem it necessary to legislate what they thought to be a clear and unambiguous definition.
Unfortunately, the Massachusetts Supreme Judicial Court is not, apparently, populated by reasonable people who are not set on bending culture and law to their social ideology. When determining whether a Massachusetts law that denies the granting of marriages to couples whose home states would forbid them, that court determined (PDF):
… that same-sex marriage is not prohibited in Rhode Island. No evidence was introduced before this Court of a constitutional amendment, statute, or controlling appellate decision from Rhode Island that explicitly deems void or otherwise expressly forbids same-sex marriage; and, after an exhaustive search, this Court has found no such prohibitory positive law.
The problem, it seems to me, is one that is sure to pop up whenever a court declares the English language to be void: we imaginative creatures can concoct all sorts of things that are not explicitly stated in amendment, statute, or appellate decision for the reason that nobody ever believed they had to be. It’s possible that some obscure case would prove me wrong, but I don’t see how the Massachusetts SJC could conclude otherwise than that Rhode Island does not prohibit men from marrying their fathers, grandfathers, sons, and so on. (Indeed, a very quick look at Massachusetts’ laws reveals the same for that state.)
Of course, what I’ve found in discussions on this topic before is that those who disagree with me on principle, having leveraged the absence of specific language to get their way, will fall back on the vagaries of “understanding” in order to reapply historical standards and intentions to the newly created “marriages.” In other words, once a court has asserted that the government has previously acted through inaction in such a way as to leave same-sex marriages possible, it then will turn around and interpret the statutes’ failure to ban same-sex incestuous marriages as clearly an oversight that needn’t be perpetuated in the law.
Why such a lackadaisical legislature would feel it necessary to write and enact equivalent statutes for each gender is a question beyond my ability to answer. Sadly, I fear that the Rhode Island judiciary, which will soon be poring over newly minted Massachusetts marriage licenses, will offer their rubber stamp without even asking the question.
I wasn’t intending to post anything on the Station fire victims’ impact statements, but I feel the continuing judicial over-reaching by Judge Francis Darigan that now extends to today’s proceedings requires comment. According to the Projo’s 7-to-7 blog, Judge Darigan has told the victims that they cannot use their impact statements to comment on the legal process that has brought them to this point…
Jay McLaughlin, related to Sandy and Michael Hoogasian, said he felt a sense of “pain caused by disrespect, apathy, betrayal, all of which have victimized us over and over again.”Judge Darigan is out of line here. If he didn’t want people to discuss the sentences in their statements, he shouldn’t have decided on sentences before the statements were given. There are limits to how much reality judges can demand that people ignore.
McLaughlin, who is married to Michael Hoogasian’s sister Paula, then criticized the sentence and Judge Francis Darigan called a recess. Darigan has told fire victims family members and friends to restrict their comments to memories of their loved ones and the effect their death has had on them.
Darigan told the people in the courtroom that he understands their frustration, but that the hearing isn’t an opportunity for a diatribe against the proceeding.
He later allowed McLaughlin to return and continue.
Again, members of the audience applaued when McLaughlin finished. Darigan asked them to refrain.
In our system of government, judges are insulated from popular accountability. This is for a sound purpose, to give them the freedom they need to make decisions that are unpopular with the public but legally correct. But the protection of judges from popular passions was never intended to protect the type of action Judge Darigan took in accelerating the resolution of the Derderian brothers’ case. The Judge was not making a decision that was legally necessary when he inserted himself directly into sentence negotiations and accepted a plea deal over the formal objection of the Attorney General.
This doesn’t mean that Judge Darigan’s decision was wrong, but it does make inappropriate his use of his judicial position to hide from and even stifle questions and criticism about his role in what happened. Had there been a trial, victims would have been allowed to comment in their impact statements on things said during the proceedings. Since Judge Darigan has gone far beyond adjudicating questions of law and made himself a substantive part of the resolution of this case, statements regarding his actions should be considered fair game.
If the final stage of a court proceeding isn’t the appropriate forum for crime victims to discuss how the courts have failed or served them, then where is that place?
UPDATE:
Prior to formally announcing the sentence, Judge Darigan is outlining in detail how the Derderian plea deal came about; he certainly can’t be accused of hiding from describing his role in the disposition of the case at this moment. Why this information couldn’t have been made public at the same time that the plea deal was announced is unclear. People may have had more confidence in the system if it had been. [Open full post]
Karen Salvatore is running for State Representative in Rhode Island’s 33rd district, which includes South Kingstown, Narragansett, and North Kingstown. This is Ms. Salvatore’s second try at the seat. Two years ago, she lost to 17-year incumbent Donald Lally by just 156 votes. Her run for office is the natural continuation of her efforts to bring good ideas and good people to state government…
Ms. Salvatore is the founder of Food And Truth, a non-profit organization dedicated to inform, educate, motivate and organize people around food ingredient issues. She was the Executive Director for the John Hazen White Sr. Red Alert program which encouraged citizen awareness of issues and involvement in government. In 1990, Ms Salvatore founded DOT Watch, a citizen advisory group on transportation issues.Anchor Rising recently had the opportunity to interview Ms. Salvatore…
Anchor Rising: What’s motivating your run for office?
Karen Salvatore: What’s motivating me is good government. We need that. My opponent has been in the House of Representatives for seventeen years. I believe that our Founding Fathers created a system where we would leave the family farm or the family business for a few years, serve, and then go home. I think that’s the way it should be. I don’t think we should turn government into a career.
AR: Your opponent, Donald Lally, is the chair of the House Judiciary Committee and a vocal opponent of voter initiative. What are your thoughts on voter initiative?
KS: I am very much for voter initiative. I think people should have the right to put something on the ballot. 28 states have voter initiative. Our neighbors in Massachusetts have had it for many, many years, and they have lower taxes and better voter turnouts than we have. Many states that have voter initiative do have better voter turnout.
AR: I know you’ve run for office once before, but you’ve also been involved with government through DOT (Department of Transportation) Watch, correct?
KS: I founded DOT watch, a citizen advisory committee on transportation issues. We promoted mass-transit alternatives.
AR: Tell us about how DOT Watch was ahead of the curve on some of the state’s major transportation issues.
KS: Seventeen years ago, when we started DOT watch, people were saying “fuggedaboutit” to the things we were promoting. For example, there was skepticism about water transport. Now we have a high-speed ferry on the bay. We were promoting train stations in Warwick and Wickford. People asked us if we were crazy. They claimed we didn’t have the density for trains. Of course we have the density. Now, the Warwick and Wickford train stations will become a reality.
AR: What other issues are important to you?
KS: Our taxes our too high, we spend too much money. If you want to lower taxes, you have to stop spending. Our spending exceeds the cost-of-living increases. We have to stop that. I want to lower health and property insurance costs. I want to help increase the number and the quality of jobs in Rhode Island, by making the tax structure more attractive for families and business that want to come here. And, of course, education that is affordable and of good quality is a top concern of mine. [Open full post]
The Associated Press (via the Washington Post) is reporting that the nomination of John Bolton as United Nations Ambassador will not be sent to the Senate floor anytime soon…
John R. Bolton’s quest for a longer lease on his temporary job as U.S. ambassador to the United Nations remained elusive Thursday as the Senate shied away from a vote to confirm him.The Senate could still vote to confirm Bolton, after its electoral recess, when it reconvenes in November. However, Bolton’s best scenario for confirmation appears to be for Senator Chafee to be defeated in November’s election while the Republicans remain control of the Senate, allowing a different Republican Senator to take a seat on the Foreign Relations Committee. [Open full post]
Sen. Richard Lugar, chairman of the Foreign Relations Committee, said the Senate likely would recess later this week without voting on his nomination….
Lugar said that if one Democratic senator were to step forward and support Bolton, he might be able to set a committee vote before the recess. In the meantime, Lugar added, Sen. Lincoln Chafee, a Rhode Island Republican, is holding up the nomination with questions about the Bush administration’s Middle East policy.
Specifically, Chafee wants the administration to restrain Israel from expanding settlements in Palestinian areas on the West Bank. Bolton, as U.S. ambassador, has taken a strong and visible role in across-the-board support for Israel.
It appears that much the Derderian brothers legal defense in a Station Fire trial would have focused on who was most responsible for the presence of flammable sound-proof foam in the building. The defense, according to Mark Arsenault et. al. in Sunday’s Projo, was going to argue that the Derderians believed they had installed fireproof foam, but had been defrauded by a foam company that sent a different product than was ordered and actively concealed that fact. Furthermore, according to the defense, the Derderians were never alerted to the problem despite multiple-fire inspections…
“We hung the foam in the nightclub but there are so many extenuating circumstances that we would have brought out,” [Kathleen Hagerty] said. The [Derderian brothers], she said, had ordered “sound foam,” which in any place of public assembly must be fire-retardant.We have no idea how strong that defense would have been. On the one hand, Attorney General Patrick Lynch hasn’t indicted anyone from the foam company, indicating he doesn’t believe that the case against them is strong. On the other hand, the lenient sentence accepted by Judge Darigan could be an indication that he believed that shifting the blame to the foam-company (or to Larocque) would have been effective.
“But instead of getting the sound foam they’d ordered,” said Hagerty, “they got packing foam and were never told that they weren’t getting the sound foam they had ordered.”
Foam is sold with a material data warning safety sheet, Hagerty said, but that information was never given to the Derderians by the salesman from American Foam.
“And we would have presented testimony from employees of American Foam who would have told the jury that they were under orders from the owner not to supply that sheet unless the buyer specifically asked for it,” Hagerty said. “But the manufacturer of the foam had sent a letter to the distributors encouraging them to give the safety sheet to the end-user.”
Hagerty also said that the defense would have presented evidence that [West Warwick Fire Inspector Denis Larocque] had inspected The Station six times after the foam was installed but never cited the Derderians for having flammable foam in their club.
Whatever the answer, when there is such a discrepancy between the prosecution’s and the defense’s version of events, shouldn’t the judge wait to see the case presented at trial before deciding on a sentence? [Open full post]
RI Law Journal has a firsthand report on what sounds like a push-poll commissioned by the Elizabeth Roberts campaign for Lieutenant Governor.
Jon Pincince (primary contributor to RILJ) told a pollster who had called him that he’d likely be voting for Robert Healey. Here’s what happened next…
Then I was asked for whom I would vote if Healey were not running (to which I answered neither, for no particular reason), and I was then bombarded with negative statements about [Reginald Centracchio] and asked whether those statements would change my mind.Apparently Ms. Roberts campaign staff doesn’t think that their candidate has any positive accomplishments or interesting ideas that will sway undecided voters. If her own campaign staff is unimpressed by her platform, then why should you be? [Open full post]
