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Will Supreme Court Resolve Attorney Deadlock at the Eleventh Hour?
Legal Times
October 28, 2008
Exactly one week before oral argument in the case of Carcieri v. Kempthorne, agreement over which lawyer will argue for the appellants before the Supreme Court still seemed far away -- so far in fact, that the Supreme Court itself may decide.
Rhode Island Gov. Donald Carcieri and state Attorney General Patrick Lynch want former Solicitor General Theodore Olson, a veteran of 50 arguments before the Court, to argue in the Indian land trust case, but the town of Charlestown, where the disputed land sits, wants its Indian affairs lawyer Joseph Larisa, a novice at the Court but the lawyer who has argued the case in courts below, to handle it.
After the Court rejected motions for divided argument and both sides refused to back down, both Olson and Larisa filed conflicting forms with the Court stating they alone would argue for the full half-hour. The Court clerk's office sternly told the two to resolve the issue and submit one name by Thursday. The state wants to draw straws among the three parties, but Larisa says there are only two sides, so a coin should be flipped giving each side a 50-50 chance.
On Monday, Larisa filed a letter with the Court telling it that because he understands "there will be no change whatsoever in the position of the governor and the attorney general," there appears to be no way the two sides can comply with the request to submit a single name by Thursday. As a result, Larisa has filed an emergency motion to reconsider the possibility of divided argument, for placement on the agenda of the Court's private conference this Friday. On Monday afternoon, Court officials confirmed Larisa's motion will be placed before the Court on Friday.
"It's most unfortunate that we have been unable to pick a name," says Larisa, who adds that "the town of Charlestown does not want to wave the white flag." With the state unwilling to budge, Larisa saw no other choice but to ask the Court to decide.
"Unless they want the two of us jockeying for position on Nov. 3, someone has to resolve this," says Larisa, who is reconciled to the fact that he won't know until one business day before the Court session whether or not he will be arguing. Referring to the original authors of the book Supreme Court Practice, the 1,427-page tome on the rules and customs of practicing before the high court, Larisa adds, "They're going to have to write a new paragraph in Stern and Gressman for this case."
First reported in The BLT: The Blog of Legal Times
