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Why a RI Supreme Court justice has been fighting a $200 ethics fine for over a year

Target 12

PROVIDENCE, R.I. (WPRI) – The woman who successfully filed an ethics complaint against one of Rhode Island’s most powerful judges says the man’s yearlong administrative appeal over a $200 fine is childish.

“It has all the appearances of a child who’s been caught doing something he shouldn’t be doing,” said Helen Hyde, an attorney who filed an ethics complaint against R.I. Supreme Court Justice Francis Flaherty in 2016.

But for Flaherty, who has served on the high court since 2003, the violation stemmed from an unknowing mistake, which ultimately resulted in a wrongful decision by the R.I. Ethics Commission that denied him due process.

Superior Court Judge Brian Stern

“They acted as the legislature, they acted as the prosecutor, the executive branch, then they decided – the judicial branch – all with no oversight,” said attorney Marc DeSisto, who argued on behalf of Flaherty during a Wednesday hearing in front of R.I. Superior Court Judge Brian Stern.

DeSisto, who has represented Flaherty for more than a year, is paid in part by a taxpayer-funded insurance policy that covers legal expenses for state judges. Court spokesperson Craig Berke did not immediately know how much Flaherty’s legal fight has cost so far, but confirmed the insurance policy will cost taxpayers $142,000 this year.

Flaherty’s appeal of the Ethics Commission’s decision is wide-ranging, but a key question in the case boils down to whether the justice made a reasonable mistake when he failed to disclose his position as president of the St. Thomas More Society of Rhode Island when he filled out annual disclosure forms with the commission between 2010 and 2015.

The nonprofit, which DeSisto described as a “loosey-goosey” operation with no annual budget, is affiliated with the Roman Catholic Diocese of Providence. And Flaherty’s failure to disclose his relationship with the group came at the same time he penned a unanimous Supreme Court decision ruling against a lawsuit that alleged sexual abuse at the hands of Fr. Brendan Smyth of the Catholic church more than 40 years ago.

Hyde, who was one of the alleged victims in the sexual assault case, filed the ethics complaint within months of the decision made against her and a second plaintiff.

“He was president of the society for five successive years, some of those years involved him sitting on cases involving the Diocese of Providence,” Hyde said earlier this week during an interview with Target 12.

“This is the very reason the Ethics Commission compels that kind of disclosure,” she added. “He should have acknowledged that, and he didn’t. Instead, he concealed it for five straight years.”  

The Ethics Commission largely agreed with Hyde, ruling last year that Flaherty should have known better than to repeatedly omit his position at the religious nonprofit. After nearly three years of consideration, the commission determined he violated the ethics code and fined him $200.

“We sent these forms. They are very clear,” Jason Gramitt, the Ethics Commission’s executive director, argued in court. “The regulations are very clear. For him to say, ‘I never thought about it. It never occurred to me’ – your honor, it’s not reasonable.”

The issue would have ended there, but Flaherty instead decided to appeal the decision to the Superior Court, which is unusual but not without precedent. Other prominent Rhode Island public officials have made similar moves in the past, including former Gov. Edward DiPrete in the 1990s and former Senate President William Irons in 2009.

In addition to arguing that Flaherty’s omission was a reasonable mistake, DeSisto insisted the appeal was necessary because Ross Cheit, the former chairman of the Ethics Commission, allegedly had a conflict of interest.

Cheit, a Brown University professor of political science who specializes in repressed memory and child abuse, has written extensively on the topic, including some cases involving sexual abuse of minors and the Catholic church.

DeSisto argued that Cheit – in his professional life – had been critical of the church, specifically referencing a post he wrote about Professor Elizabeth Loftus, a cognitive psychologist that specializes in memory, who was hired by church leaders in the case involving Hyde. As a result, DeSisto argued, Cheit should have recused himself from the Ethics Commission decision on Flaherty.

“A number of factors dictate that Mr. Cheit should have recused himself from the deliberations in the matter, including, but not limited to, his background in repressed memory, his public comments criticizing the Catholic church and the expert retained in the Hyde case,” DeSisto wrote in the appeal. “By failing to recuse himself, Mr. Cheit violated Justice Flaherty’s due process rights.”

Gramitt fired back at the hearing Wednesday, pointing out that the commission members had no prior knowledge of Loftus’s involvement in the Hyde case, adding the accusations that Cheit is anti-Catholic are disparaging.

“The idea that a person who writes on issues of sexual abuse is anti-Catholic is absurd and scurrilous,” Gramitt said. “There is no evidence on the record that he harbors any anti-Catholic sentiment whatsoever.”

Hyde, who is watching the Superior Court case unfold from her home across the country, has raised questions about how DeSisto even knows about the Loftus connection, claiming the witness was never called or even mentioned publicly in her case.

“How did the judge find out that the Diocese of Providence was going to use this expert – that she was waiting in the wings when she was never even disclosed as a witness in my underlying case?” Hyde asked. “How did he find out something that wasn’t of public record?”

DeSisto declined to comment outside of the courtroom Wednesday.

The hearing marks the end of arguments allowed in the case and Stern is expected to make a final decision in the coming months. Either side will be allowed to appeal that decision to the Supreme Court, which – unlike criminal proceedings – can decide whether to consider a decision of an administrative appeal.

If the Supreme Court does end up considering the case, it’s possible only three of the five justices would consider the decision, as Justice Gilbert Indeglia has announced he will retire in June, and Flaherty would — presumably — have to recuse himself.

Eli Sherman (esherman@wpri.com) is a Target 12 investigative reporter for WPRI 12. Follow him on Twitter and on Facebook.

Send tips to Target 12 Investigator Walt Buteau at wbuteau@wpri.com and follow him on Twitter @wbuteau.

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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