The South Kingstown Town Council has interviewed a potential Probate Court judge after the seated judge, Merlyn P. O’Keefe, criticized Town Council President Abel Collins in a July decision, for allegedly interjecting himself in a case.
In response, Collins issued a memo to the Town Council in August, offering a scathing assessment of O’Keefe’s judicial abilities and calling for the appointment of a new probate judge. On Aug. 24, the Council interviewed former Probate Court Judge Stephen R. White for the position.
The Council may appoint a probate judge to serve a term concurrent with the Council’s two-year term. White served 18 years under multiple councils until 2013, when the former Council appointed O’Keefe to the position. O’Keefe, a former public defender, was in private practice, focusing on personal injury and maritime law, at that time.
O’Keefe’s comments came in an order in the Estate of Ralph W. Browning, docket 2009-146, which had been before the Probate Court for nearly six years – since White presided over it. The case included a claim by Christopher and Mary Ellen Browning that Thomas and Susan Browning misused thousands of dollars of assets in the estate for personal use. Thomas Browning lives in Ralph Browning’s former home on Matunuck Beach Road, and ran unsuccessfully for House District 36 and Town Council as a Moderate. Collins lives nearby.
In a July 29 order, O’Keefe ruled against Thomas Browning and included in his order that “the newly elected Counsel [sic] president” had accused him of “incompetence” and recounted a meeting between the pair when Collins threatened to fire him.
O’Keefe did not return a request for comment by press time Wednesday.
“After wave of this Court’s rulings had gone against Thomas and Susan, the newly elected counsel [sic] president [Collins] initiated a meeting with the [O’Keefe], in which he accused [O’Keefe] of incompetence relying on some unnamed lawyers and another, likewise unnamed, probate judge, and compared his work unfavorable to his predecessor [former Probate Judge Stephen White] (for whom the undersigned has the highest regard), threatened to gear up the machinery to fire him and asked if [O’Keefe] would voluntarily resign or fight his termination if it came to that,” O’Keefe wrote.
Collins was unable to comment on the matter by press time, but referred the Independent to the memorandum he wrote to the Town Council.
“I respectfully request that we consider appointing a new probate judge at our next regular meeting,” Collins wrote. “I make this request after careful deliberation about how the Probate Court is currently being presided over by Merlyn O’Keefe. The issue first came to my attention during the [council] campaign when a couple of constituents complained about what they felt were arbitrary and unnecessarily drawn out cases before the Probate Court. At their suggestion, I sat in on the court one day, and followed that up with a meeting with Mr. O’Keefe.”
During that conversation, Collins wrote, the pair discussed another of O’Keefe’s decisions – one overturned on appeal in Superior Court – that O’Keefe was proud of, saying it was the same case others cited as an example of O’Keefe’s incompetence.
In the decision, O’Keefe called Collins’ meeting with him “gross overreaching” and referenced state law regarding “obstruction of the judicial system,” which prohibits individuals from “corruptly” or “maliciously” intimidating or interfering with a judge.
“The president’s gross overreaching on behalf of a litigant before the Court played no role whatsoever in any subsequent decision including this one,” O’Keefe wrote in the June 29 order.
“To characterize our chat as a ‘gross overreaching on behalf of a litigant’ is at best a delusion and at worst dishonest, insubordinate and spiteful. He was the one who pressed me for information on where these complaints arose, and he guessed the Browning case,” Collins wrote in the memo. “I regret now that I yielded him any such information, as I fear he may have tried to exact retribution via his decision in the case. Moreover, I feel that his vindictiveness will spread to others in the community that he may feel are associated with me, regardless of the questions of justice and fairness that are before him.”
Collins alleged that “Merlyn O’Keefe embodies qualities that I don’t believe we should have representing the Town. I’m certain we can do better.”
It is not the first time a party in a probate case has sought out Town Council assistance. In July 2010, the sons of Edward C. “Bud” Browning appeared before the Town Council during public comment to ask for an investigation into their father’s estate, which had been in White’s court for years without resolution. At that time, Town Solicitor Michael Ursillo issued a memo to the Council outlining their ability to act in the matter.
“Please be advised that the Town Council does not have jurisdiction to investigate this matter as requested,” Ursillo wrote. “The Town Council appoints the probate judge pursuant to Section 4630 of the town charter. It also has the ‘power to inquire unto the conduct of any office...’ pursuant to Section 3131. However, this provision of the charter is not applicable in this instance. Any official actions taken by the probate judge while sitting in the capacity of probate judge are subject to the exclusive review of the Rhode Island Superior Court.
“Furthermore, if you believe that there have been any ethical violations committed by the probate judge, such complaint should be brought to the Commission on Judicial Tenure and Discipline. [Rhode Island General Law] provides the commission with the authority to investigate a probate judge who allegedly violates the canon of judicial ethics. Again, jurisdiction over such complaints are not with the Town Council.
Consequently, it is my opinion that the Town Council is without authority to investigate actions of the probate judge in his official capacity due to the jurisdictional mandates outlined above.”
In his memo to the Council, Collins said, “Overall, he left me with the impression of being both unqualified and not particularly dedicated to his position, which is in following with what I had heard of him. Without ever reaching back out to me, O’Keefe has now chosen to inject politics into his Court by deciding to mention our conversation over coffee in a decision that he recently handed down.”
Collins ends the memo by saying, “Before appointing a new judge and essentially firing him, I do feel it would be appropriate to first ask for O’Keefe’s resignation.”