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R.I. attorney general declines to represent McKee in challenges to order to clear homeless encampment from State House

“Not having been previously consulted in any manner regarding their decision to evict and the way those evictions would be effectuated, we declined their request for representation,” a Neronha spokesman said

Homeless people and advocates took to occupying the interior steps of the Rhode Island State House Dec. 9 as they protested the impending removal of the tents occupied by homeless people on the Rhode Island State House plaza.John Tlumacki/Globe Staff

PROVIDENCE — Rhode Island Attorney General Peter F. Neronha’s office declined to represent Governor Dan McKee in cases related the state’s attempt to evict the encampment of homeless people from State House grounds, the Globe has learned.

The governor’s office first contacted the attorney general’s office to request legal representation when it learned that it would be served with a lawsuit on Dec. 8, when Warwick-based attorney Rick Corley filed a suit requesting a temporary restraining order, which was issued by Superior Court Judge David Cruise the following day.

“Not having been previously consulted in any manner regarding their decision to evict and the way those evictions would be effectuated, we declined their request for representation,” said Brian Hodge, a spokesman for Neronha.


After being pressed by the Globe, Hodge said since Neronha took office in 2019, the policy of the office has been “straightforward” and has been communicated to the governor’s office.

“Should the [governor’s office] wish that this office defend in court the governor’s discretionary policy decisions where it is foreseeable that litigation likely will result, it is critically necessary that [McKee] involve this office in the policy decision in advance of it taking effect, so that [McKee] may provide in-depth advice and guidance,” wrote Hodge in a statement. “Failure to consult with this Office in advance is likely to result in a declination of representation, as occurred here.

“The attorney general is an independently elected constitutional general officer, and as such represents the people of Rhode Island, protecting and advancing their interests,” wrote Hodge. “He works for the people of Rhode Island, and for them alone.”

Rhode Island Attorney General Peter Neronha speaks after winning a second term during an election night gathering of Rhode Island Democratic candidates and supporters, Nov. 8, 2022.Mark Stockwell/Associated Press

McKee is being represented by attorneys R. Bart Totten and Stephen D. Lapatin of Adler Pollock & Sheehan P.C., who have not responded to the Globe’s repeated requests for comment. It’s unclear why McKee or his office hired private counsel instead of being represented by attorneys who are state employees in his own office.


“The Governor’s Office represents itself from time to time in legal matters particularly when defending its own discretionary policy decisions and is doing so here,” said Hodge in a statement. “The decision to retain outside counsel, as opposed to utilizing staff attorneys in the governor’s administration, is a question best directed to the governor’s office.”

Andrea Palagi and Matt Sheaff, both spokespeople within the governor’s office, did not respond to requests for comment on hiring private counsel or the case itself.

On Tuesday, the American Civil Liberties Union of Rhode Island and the Center for Justice also filed a suit against the governor, claiming the state’s attempt to clear homeless Rhode Islanders living in tents from State House grounds was both unconstitutional and a violation of the Homeless Bill of Rights. Judge Cruise said during a hearing on Wednesday morning that the new filings were “much more significant that the complaint on Friday.”

The next hearing is scheduled for 11:30 a.m. on Friday.

ACLU of Rhode Island cooperating attorney Lynette Labinger first read the statement from the attorney general’s office in front of a Globe reporter on Wednesday morning after the court hearing and said, “In other words, they’re washing their hands of the whole matter, which I think is inapt.”

“If they think the position taken by the Department of Administration and the governor’s office is incorrect, then they should come in and articulate it,” said Labinger.


When asked for comment on Labinger’s assessment, Hodge said, “The ACLU’s view of the course of action that this Office should take is of no moment to the attorney general.”

The complaints were filed in response to notices handed out by McKee staff on Dec. 7 giving the people who have been sleeping outside in tents 48 hours to vacate the State House grounds or face fines or arrest. The ACLU’s complaint states that some or all of the plaintiffs wish to convey that they are in need of and unable to access adequate shelter, and that they believe that message is “best conveyed by their continuing physical presence at the seat of the Rhode Island government.”

The complaint also states that some people living in the encampment on State House grounds believe staying there “affords them more safety and security from exposure to crime and greater access to social services” than they would normally receive being in secluded, isolated locations such as woods or parkland.

On Tuesday, state housing Secretary Josh Saal issued a statement through his spokesman Chris Raia to the Globe in response to the lawsuit: “Just as we have been, we’re focused on continuing to do outreach and offer shelter to the individuals and couples who are camped outside the State House.”

Prior to filing a suit, ACLU executive director Steven Brown sent a letter to McKee on Dec. 8, demanding that he rescind his order to evict the homeless individuals living in tents in light of “the serious legal and policy concerns raised by such an action on the state’s part.”


According to the notices handed out, the state promised to provide people in the encampment with beds in an emergency shelter and transportation from the State House.

On Monday, when questioned by members of the press at an unrelated event, McKee said the state was short “close to 200 shelter beds.” But according to data provided by the Rhode Island Coalition to End Homelessness, as of Dec. 10, there were approximately 511 people, including children, living in places not meant for habitation while they waited for spaces in shelters.

Brown said the state does not have any formal rules or regulations that would allow for such an eviction. Labinger said the ACLU’s letter was “largely ignored” by the governor, who did not respond to the letter.

This story has been updated with a statement from Attorney General Peter Neronha’s office.

Alexa Gagosz can be reached at alexa.gagosz@globe.com. Follow her @alexagagosz and on Instagram @AlexaGagosz.