What reference letters and JNC hearings reveal about Family Court

In May the Judicial Nominating Commission (JNC) interviewed nine candidates for two vacant positions on the Family Court bench. I attended the interviews, read the reference letters supporting each candidate, and returned a week later for public testimony.

Attorney Kerry Rafanelli received letters from 69 supporters. That was 17 more than all the other candidates combined. People who sent those references may have great respect and affection for the candidate. But their letters raise concerns.

One-third of Mr. Rafanelli’s references came from lawyers. Others came from psychologists whose business is to produce court-ordered evaluations. Thirteen came from judges. A Family Court judge noted that he was writing “at the behest” of Mr. Rafanelli.

The General Assembly established the Judicial Nominating Commission in 1994 to vet candidates and nominate them on merit in order to move Rhode Island beyond elevating judges primarily as political rewards. Candidates should demonstrate that they understand ethical boundaries required of judges before they ascend to the bench.

Here’s the dilemma: If a candidate asks for a reference letter, it puts colleagues in an awkward place. If those colleagues have ethical scruples or simply do not want to recommend this candidate, they might fear that declining would put them at a permanent disadvantage if this person becomes a judge destined to rule on their cases.

One of Mr. Rafanelli’s letters came from a lawyer who practices in Family Court and chairs the Supreme Court’s Ethics Advisory Panel and yet does not seem to recognize the conflict of interest in sending such a letter.

Will letter-writers gain an edge over their opponents? Do their endorsements place psychologists on a short list from which this judge will force litigants to get evaluations costing thousands of dollars?

One parent came to praise Mr. Rafanelli, but others claimed his actions traumatized their families. A teenager testified that Rafanelli had insisted she and her brother must end their sessions with long-term therapists and meet only with court-ordered psychologists--including Dr. Judith Lubiner, who sent a four-page endorsement of Rafanelli. The teens’ father wrote a letter affirming Rafanelli’s zealous representation. Their mother said Rafanelli advised the judge to send both teens to Texas for “deprogramming” that their father had found on the Internet.

Another mother told Commissioners that Rafanelli, once again working with Lubiner, had entered their case as guardian ad litem and ended a decade of relatively successful co-parenting. The mother has had no contact with her daughter for two years since then. The two lawyers opposing this mother had sent a joint letter endorsing Rafanelli’s candidacy.

Judges in both of these cases wrote letters of support for him.

Family Court suffers from a widespread public perception that it is corrupt with cronyism and thick as thieves. The Rhode Island Supreme Court repeatedly raises strong objection to Family Court decisions made in chambers without proper records. Too many judges believe without evidence what they are told by lawyers, guardians ad litem, and psychologists who have curried favor with the Court.

We need the Bench, Bar, and Judicial Nominating Commission to spell out more clearly why letters of support should be discouraged from anyone who might stand to gain professionally if this candidate becomes a judge.

The Commission has been hard-pressed: The sheer number of judicial vacancies has drastically multiplied their meetings. As chairperson, Dr. Herbert J. Brennan, a healer by profession and demeanor, has welcomed the public and patiently heard their pain. He notes that JNC meetings on Family Court judgeships bring out a larger audience than other courts.

In their May 4th interviews, some Commissioners raised the standard for questioning candidates. Commissioner Jeffrey M. Grybowski asked about specific problems in Family Court—about the court overreaching its resources to set up specialty courts, about chaos and bullying in the court, the problems of truancy court, the offensive use of restraining orders, about the court’s interaction with the Department of Children, Youth, and Families, and the court’s overwhelming bias to keep families together regardless of domestic violence.

Commissioner Richard M. McAuliffe, Jr., asked a question handed to him during a break by a member of the audience about the offensive use of psychological evaluations in Family Court. He told me later that he considers it important for him as a Commissioner to try to represent the public in these interviews.

David Bazar, editor of the Rhode Island Bar Journal, had an outstanding interview as he expanded on Commissioners’ questions with thoughtful comments on the larger significance of the law. He had two strong letters supporting his application from people who are not in the Judiciary and do not practice in Family Court.

I don’t know Mr. Bazar. I remember seeing him once in court, when he walked through a nearly empty courtroom where a distraught mother was fearful for the safety of her daughters. He did not know her, but he stopped and spoke to her with kindness and concern. That’s not what we expect in Family Court, but it is what we need.

After several rounds of balloting, Commissioners sent two alphabetical lists to Governor Lincoln Chafee, with four nominees appearing on both: David Bazar, Rossie Lee Harris, Jr., Susan Fink Hirsch, and Sandra Lanni. Patricia Asquith and Jane Fearing Howlett each also appeared on one of those lists.

Children often speak of their court-ordered experiences as “torture.” Many parents have told me they would never have gone to Family Court if they had known the lasting harm it would cause.

The Institute for the Advancement of the American Legal System (and their current issue of Transparent Courthouse Quarterly online) notes “remarkable consensus on the nature of the problems” in civil courts. They are calling on state rules committees to innovate and find urgently needed reforms.

The Judicial Nominating Commissioners have done their part. Now Governor Chafee must name judges able to envision effective roles they can play to help bring essential changes to Rhode Island Family Court.