Less than two weeks before the case Carcieri v. Kempthorne comes before the Supreme Court, lawyers Theodore Olson and Joseph Larisa Jr. are still at an impasse over which one of them will argue the case for the plaintiffs.
Larisa has the backing of the town council of Charlestown, R.I. to argue in the case as he has in courts below, but Rhode Island Gov. Donald Carcieri and Attorney General Patrick Lynch want Olson, the former solicitor general and now partner at Gibson, Dunn & Crutcher, to appear before the justices Nov. 3. The case is a dispute over an Indian land claim in Charlestown.
On Oct. 15, Olson filed a standard argument form with the Supreme Court clerk's office stating he would be the one to argue. But the next day Larisa filed an argument form with his own name on it. Since the Court has already denied motions for divided argument, the clerk was faced with the dilemma of two lawyers claiming they will argue at the same time for the same party, when only one lawyer can do so.
On Monday Denise McNerney, the merits cases clerk for the Court, sent the two an identical letter telling them sternly that "The decision as to which attorney will argue on behalf of the petitioners in this case is now to be made amongst the parties." She gave Olson and Larisa until noon on Oct. 30 to tell her who will be arguing.
Larisa, who wants the choice made by a coin toss, said Tuesday afternoon that the governor has once again refused to decide it that way. "They have not suggested any other option other than 'Ted wins,'" said Larisa this afternoon. "Less than 13 days to go until oral argument and we cannot agree on a simple coin toss. It is the town's position that the AG and governor are now affirmatively hurting preparation for oral argument." Olson could not be reached for comment.
First reported in The BLT: The Blog of Legal Times