Yashar, In re

• Decision Date: 19 June 1998
• Docket Number: No. 98-122-M,98-122-M
• Citation: 713 A.2d 787
• Parties: In re Marjorie R. YASHAR, Associate Judge of the Administrative Adjudication Court of the State of Rhode Island. P.
• Court: Rhode Island Supreme Court

Page 787

713 A.2d 787

In re Marjorie R. YASHAR, Associate Judge of the Administrative Adjudication Court of the State of Rhode Island.

No. 98-122-M.P.

Supreme Court of Rhode Island.

June 19, 1998.

John F. Dolan, Elizabeth Flynn Sullivan, Providence, for Petitioner.

J. Renn Olenn, Warwick, for Respondent.

Before WEISBERGER, C.J., and BOURCIER and FLANDERS, JJ.

OPINION

PER CURIAM.

This is a petition for certiorari filed by Judge Marjorie R. Yashar (Judge Yashar), an associate judge of the Administrative Adjudication Court (AAC). Judge Yashar's petition challenges an order entered on December 29, 1997, by Chief Judge Vincent Pallozzi of the AAC. The order directed that Attorney Richard S. Humphrey (Humphrey) and members and associates of his law firm "shall not appear before the Honorable Marjorie Yashar in any hearings, trials or other matters." We issued a writ of certiorari to review this order and requested the parties to show cause why we should not rule summarily on Judge Yashar's petition. After reviewing the memoranda filed by the parties in support of and in opposition to the petition and after hearing oral argument, we conclude that no cause has been shown and that the issues raised can be resolved at this time.

The immediate factual background events for this dispute began on October 6, 1997. By a letter bearing that date, Humphrey wrote to Chief Judge Pallozzi, requesting that he enter a proposed form of order prepared by Humphrey that would exempt Humphrey and other members and associates of his law firm from appearing before Judge Yashar in any future AAC matters handled by his firm. The letter made reference to unspecified "circumstances that are already known to you" and stated that Humphrey's request was "due to the unsettling rulings issued during trial by Judge Yashar in the case styled State of Rhode Island ex rel. Town of Scituate v. Frank Finn, Summons No. 97-203-0346 Appeal No. B 97-0059." Humphrey was referring to a recently concluded AAC case in which an appellate panel of three AAC judges (including Chief Judge Pallozzi) had reversed a judgment entered by Judge Yashar that Humphrey's client, Francis Finn (Finn), had illegally refused to submit to a breathalyzer test in violation of G.L.1956 § 31-27-2.1. The appeals panel concluded that Judge Yashar had acted arbitrarily in rejecting a police officer's testimony concerning the date of the incident (May 6, 1997) "without offering reasons for rejecting the testimony." Notwithstanding the officer's testimony, Judge Yashar had looked to the Law Enforcement Report (report) and to the Rights for Use at the Station form (form) to determine the date of the incident in question. Although the form indicated that the defendant was informed of his rights at the station and that he had refused to take the breathalyzer on May 5, 1997, the appeals panel concluded that this document was not probative in ascertaining the date of the charged incident because "[t]here is nothing in the document which establishes that the accident occurred on May 5, 1997." Because of the apparent evidentiary inconsistency in the date of the challenged conduct, the panel reversed Judge Yashar's order that upheld the breathalyzer-refusal charge against Humphrey's client. ¹

Humphrey enclosed a copy of the panel's decision in the Finn case with his October 6, 1997 letter to Chief Judge Pallozzi and asserted that his client had not been given a fair hearing in that case by Judge Yashar. He further claimed that the circumstances surrounding that case were "so extraordinary that I believe that it would be best for all involved--my clients, lawyers in my firm, me and Judge Yashar--that neither I nor my associates or members of my firm appear before Judge Yashar in the future."

After receiving this letter and another of the same tenor signed by Finn but prepared by Humphrey, Chief Judge Pallozzi conferred with Judge Yashar. Although Judge Yashar denied that she was biased against Humphrey, Chief Judge Pallozzi claimed that she initially agreed that it might be better for all concerned if she would recuse herself in the future from hearing any of Humphrey's AAC cases or those involving clients represented by his firm. Judge Yashar, however, denied that she ever agreed to Humphrey's request or offered to allow the entry of any such order as had been requested by Humphrey.

On December 19, 1997, Judge Yashar sent a letter to Chief Judge Pallozzi, with a copy to Humphrey, setting forth the grounds for her position that the Chief Judge should not and could not accede to Humphrey's request to bar her from sitting as a judge on all of Humphrey's future AAC cases. Her position was that Humphrey was free to raise her alleged bias against him by filing a recusal motion in any future individual AAC case in which he was involved as an attorney when she was the designated trial judge and to seek appellate review if he was dissatisfied with her decision in any respect. But Judge Yashar told Chief Judge Pallozzi that she did not believe that Humphrey should be allowed to obtain a blanket order from the Chief Judge that would effectively preclude her from serving as the trial judge on any and all AAC cases whenever Humphrey or a member of his law firm was an attorney of record.

On December 29, 1997, Chief Judge Pallozzi responded to Judge Yashar's December 19, 1997 letter. In his written response he again asserted his belief that Judge Yashar had previously agreed to Humphrey's request that he no longer be required to appear before her in AAC cases. He claimed that in light of Judge Yashar's earlier agreement to this request, he was completely surprised by her letter of December 19, 1997, which took...