02/27/10 - “Uncharted waters once again,” said Champlin’s Marina attorney Robert Goldberg in reaction to last week’s state Supreme Court decision to remand the marina’s expansion application back to the Coastal Resources Management Council for a new vote.

The high court decision overruled a Superior Court ruling that allowed the marina a 3-acre expansion into the Great Salt Pond.

Four members of the Supreme Court — Chief Justice Paul Suttell, Justice Francis Flaherty, Justice William Robinson and former Chief Justice Frank Williams — affirmed in part and reversed in part Superior Court Judge Netti Vogel’s previous decision. Justice Maureen McKenna Goldberg, wife of the Champlin’s lawyer, recused herself from the matter.

Vogel’s ruling itself had reversed a previous CRMC denial of the expansion. Vogel held weeks of evidentiary hearings that led her to rescind the votes of three CRMC members, Chairman Michael Tikoian, Vice Chairman Paul Lemont, and former commissioner Gerald Zarrella, for improper procedure and bias.

All four justices agreed with Vogel that Zarrella and Tikioan had expressed bias or engaged in improper ex parte communication — i.e. discussing the issues outside the record. However, they disagreed with her in regard to Lemont. The majority also disagreed with her remedy, which was to simply subtract three votes from the original tie vote, resulting in a 4-3 count in favor of the marina.

By so doing, Vogel granted permission for an expansion along the lines of an earlier CRMC subcommittee recommendation.

Champlin’s originally applied in 2003 to expand by four acres, 240 feet seaward in the Great Salt Pond. In 2005 the CRMC subcommittee recommended three acres and 170 feet. An alternative 100-foot plan, created by CRMC staffer Dan Goulet, was discussed and became controversial because it was never formally entered into evidence.

The majority of the justices, excepting Williams, agreed that the case should be remanded back to the CRMC for another vote, with instructions that the Goulet plan be included in the record; in his separate dissent Williams argued that the matter could be handled by the Superior Court without going back to the CRMC.

“In our opinion,” reads the majority decision, “the trial justice erred when she simply subtracted the votes of the members that she held to be biased and when she elevated the subcommittee recommendation to become, in effect, a final decision of the CRMC, because the recommendation was untainted by the Goulet plan.” Instead, the court writes, the only appropriate remedy is remand to the CRMC for supplementation of the record.

(In a footnote it points out that Vogel incorrectly called the subcommittee recommendation a decision numerous times.)

Tikoian won’t vote

As part of the remand order, Tikoian is barred from taking part in the new CRMC proceedings or vote.

The Supreme Court agreed with Vogel that Tikoian’s meeting with the governor to discuss the Champlin’s matter was problematic. The justices therefore “declined to disturb” Vogel’s findings that Tikoian’s contacts with the governor and his staff constituted impermissible ex parte communication.

“Tikoian, as a decision maker on the CRMC, sought an off-the-record opinion from a third party about the merits of the application when he took the initiative to engage the governor and determine the governor’s feelings about the pending application,” reads the decision. It goes on to say the consultation was never made part of the record.

Attorney Goldberg now holds Tikoian responsible for the entire chain of events to date.

“After all the time and effort all sides put into this, it’s absolutely horrendous what Tikoian did here,” Goldberg said Wednesday. “He did a disservice to everyone.”

The Champlin’s attorney went on to say that he didn’t understand how any side could claim a victory when a “bad apple skewed the outcome for everybody.”

He said he’s confident that the marina would prevail if given a “fair shake.”

Tikoian offered his own statement on the decision.

“All Rhode Islanders should be happy the Supreme Court overruled this extraordinary decision of Judge Vogel. I am disappointed the court upheld my disqualification. However, I realize that the limited scope of review of a trial justice’s decision tied the hands of the Supreme Court… Justice Robinson recognized my attempt to bring compromise on a highly controversial application. My main objective has always been, and will continue to be, to protect the sanctity of the Rhode Island coastal environment and in this case, Block Island.”

In his dissent Justice Robinson credited Tikoian for having modified his position as the application traveled through the hearing process.

“It is clear from the record that Mr. Tikoian showed an ability to modify his thinking about the proposed project as time went by. Significantly, it appears from the record before us that Mr. Tikoian wished to subject the petition of Champlin’s to an immediate vote of the full CRMC when the petition was initially proposed. Moreover, it was Mr. Tikoian who appointed Mr. Zarrella (who the record reveals to be at all times favorably inclined towards the proposed project) to the subcommittee…. In plain English, Mr. Tikoian’s thinking evolved over time.”

Justice Williams, however, had a different point of view.

“The trial justice’s fact-finding efforts in this case are commendable and largely indisputable,” Williams writes in praise of Vogel. He then excoriates the CRMC chair based upon testimony that Tikoian tried to force CRMC members to vote a certain way by threatening their continued membership on the council.

“Once [Tikoian] threatened a fellow subcommittee member in his campaign to gain support for the so-called ‘Goulet plan,’ he ceased to function as an impartial trier of fact,” Williams writes.

Quasi-judicial immunity

Another area where the Supreme Court differed with the Superior Court was in the realm of quasi-judicial immunity. This is the concept that judges, or quasi-judicial officers such as CRMC members, cannot be cross-examined to explore their mental processes. Vogel dismissed Lemont’s vote, the court said, after allowing his thinking process to be exposed in the evidentiary hearing.

“The problem here, as we see it,” reads the decision, “is that even though the trial justice properly recognized the dangers inherent in this type of hearing, she repeatedly disregarded her own ground rules.” As a result, the mental processes of quasi-judicial officers such as Tikoian and Lemont were subject to cross-examination on the stand. “It is our opinion that the quasi-judicial immunity of the CRMC members repeatedly was violated over objection by the CRMC,” reads the decision.

Lemont will be allowed to take part and vote when the expansion application comes before the commission next.

What now?

On Tuesday all sides met with presiding judge of the Superior Court, Alice Gibney, and Judge Vogel will soon convene a conference to decide the steps involved to effect the remand.

The Supreme Court order calls on the three new CRMC members to read the entire Champlin’s transcript to date, nearly 4,000 pages. Only after that and the new evidence and testimony in regard to the Goulet plan is weighed can another vote be taken.

Of the eight current CRMC members, five took part in the original Champlin’s vote; of those, four voted against it, including Tikoian and Lemont.

Either side would be able to appeal the outcome of the new vote, said R. Daniel Prentiss, attorney for the town and the island environmental groups.

The Supreme Court agreed that all the intervenors — the Conservation Law Foundation, The Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy — had standing in the matter (which Champlin’s disputed).

Prentiss said he was “very gratified” by the court’s decision, which he said provided “exactly the remedy” he and his clients had argued for.

Committee for the Great Salt Pond President Corrie Heinz said the organization was indeed pleased with the results. “It would not be possible without all the people and organizations who support us. Although the Supreme Court decision stopped Champlin’s from proceeding with the marina expansion for now, the decision actually set the clock back four years, to a point just before the CRMC voted to deny the Champlin’s application. So now we have to once again prepare to oppose [the expansion] at the CRMC, and will need even more of their support, to prevail, from this point on.”

First Warden Kim Gaffett said she was “happy” with the decision, which she said was “the most advantageous” result from the town’s standpoint.