from ProJo (H/T SCOTUSBlog):
The fate of 31 acres in Charlestown owned by the Narragansett Indian tribe will be argued before the U.S. Supreme Court in November, but first a nasty local dispute must be resolved: Who should represent Rhode Island’s interests before the nation’s highest court?
At play is whether the privilege should go to the attorney general’s office, a high-powered lawyer hired by Governor Carcieri, Charlestown’s assistant solicitor on Indian affairs or a combination therein?
The Supreme Court is scheduled to hear arguments Nov. 3 on the state’s challenge of a federal appeals court ruling that the U.S. Department of Interior can hold the land in trust for the Narragansetts.
Trust status frees the property from most state and local laws, placing it under tribal and federal control. State and local officials fear it would open the site up to a casino or some other venture outside of state oversight.
From the state’s perspective, Rhode Island’s arguments should be left to Theodore B. Olson, former U.S. solicitor general, and an as-yet-unnamed lawyer from the attorney general’s office.
Governor Carcieri hired Olson shortly after the Supreme Court agreed to hear the state’s appeal in February. Olson, who has appeared before the Supreme Court more than 40 times, won the case that settled the 2000 election in favor of George W. Bush.
In Charlestown’s view, Joseph S. Larisa Jr. should be given equal time. Larisa, chief of staff for former Gov. Lincoln Almond, has been involved in the case since its inception a decade ago.
Although the state and the town are on the same side, the sparring has sparked sharply worded court filings and personal jabs.
The tribe bought the land at issue, which is just north of Route 1, in 1991 to build housing for its elderly. The tribe then successfully petitioned the federal Interior Department to take the land into trust. The state, then under Almond; the town; and the attorney general’s office filed suit after the federal agency agreed to do so in 1998.
The three parties lost their challenge in U.S. District Court, and again before a federal appeals panel, and again before the full Circuit Court of Appeals in Boston.
The three parties together sought the high court’s review last year. But that’s where the unity appears to end.
In June, Olson, the attorney general, and Charlestown filed separate briefs contesting the Interior Department’s right to place the land in trust.
Larisa says he tried to persuade the parties to file one “powerful” joint brief that would show solidarity. Olson agreed but Lynch did not, he said.
Larisa accuses Lynch’s office of filing separately as a means of ensuring that the attorney general’s office got “face time” before the court.
“He was trying to protect a political and institutional interest that says the attorney general must present oral arguments in the case regardless of whether others are better able to present the case before the court, namely Mr. Olson and myself,” Larisa said earlier this week.
Lynch’s office dismisses Larisa’s claims, saying the decision was driven by the belief that three briefs would make a stronger case than one. Lynch’s spokesman, Michael J. Healey, said that James Lee, chief of the civil division, does not recall conversations about a joint brief.
Olson did not return a phone call seeking comment yesterday.
SUPREME COURT RULES allot each side a half-hour for oral argument and specify that only one lawyer on each side will be heard, unless the court rules otherwise. Lawyers may file briefs requesting to split the time, but guidelines state “Divided argument is not favored.”
Nevertheless, on Aug. 18, Lynch’s office and Olson filed a motion seeking to split their half-hour to give Olson 20 minutes and the attorney general 10. They argued that the governor and attorney general “have substantial and complementary interests in preserving the state’s sovereignty against encroachment by Indian trust acquisitions.” They added that oral arguments from Charlestown were not necessary because the town “does not possess sovereign interests distinct from those of the state itself.”
A week later, Charlestown filed its own brief, with Larisa seeking half of the allotted time. In that motion, Larisa asserted that the governor and the attorney general did not need to present separately because they have the same interest. He added that the town has a unique perspective and that the court would gain from his legal analysis.
In addition, Charlestown last week filed an objection to Lynch and Olson’s motion, pointing out that for years the three parties had filed jointly. “The 10 minutes of oral-argument time now requested is, with all due respect, little more than a request for ‘face time’ before this court,” Larisa wrote of the attorney general’s role.
On Tuesday, Lynch’s office filed a response. “The town’s assistant solicitor for Indian affairs overlooks the interests and issues confronted by the state and governor, instead choosing to elevate individual efforts that do not advance any substantive matter before the court,” the attorney general’s office wrote. The response was not signed by Olson.
“It’s not just about Charlestown,” Healey said. “If we lose this case the entire state is fair game for the Department of Interior and federally recognized tribes. It’s not just about Charlestown at all.”
Lynch, he said, has not decided which state lawyer would argue the case, but that Assistant Attorney General Neil F.X. Kelly, Assistant Attorney General Rebecca T. Partington, and Lee are preparing.
Kelly wrote the briefs before the court and has worked on the case for the past decade.
“They are working hard to master the issue and think about possible lines of questioning that could be coming our way,” Healey said. Whoever is selected would represent not only Rhode Island’s interests but those of the 18 other states that filed friend of the court briefs, he said.
It is not uncommon for lawyers to spar over who will appear before the high court.
According to a guide on practicing before the Supreme Court, the court normally will not designate who should argue when parties can’t agree. The clerk’s office advises counsel that if they cannot agree, the matter should be resolved by drawing lots — a suggestion that generally seems to produce agreement.
The court is scheduled to consider the motions Sept. 29 in chambers. If they reject the arguments from both sides, it would be left to the three parties to decide by drawing straws, according to Larisa.
Whoever wins will face a lawyer from the Department of Justice, who will represent the Interior Department.
Meanwhile, the Narragansett Indian tribe has hired Thomas C. Goldstein, of Akin Gump Strauss Hauer & Feld, to write a friend of the court brief. He also is seeking 10 minutes for oral argument. The court will also consider that motion Sept. 29.
Turtle Talk 