PROVIDENCE -- Before agreeing to serve on a military panel that will hear appeals from suspected terrorists, Rhode Island Supreme Court Chief Justice Frank J. Williams looked into whether he would violate a section of the state Constitution that limits dual office holding.
Williams concluded that he could serve on the review panel without giving up his seat on Rhode Island's high court. A Roger Williams University law professor and the Rhode Island Bar Association president reached the same conclusion after reviewing the matter at The Providence Journal's request.
At issue is the same section of the Constitution that kept former Gov. Dennis J. Roberts from becoming a United Nations delegate. Former Superior Court Judge Thomas H. Needham and former Gov. Bruce G. Sundlun also confronted the section's prohibitions before the state Supreme Court gave them clearance to hold dual roles.
Article 3, Section 6 of the Constitution aims to ensure the undivided loyalty of state officials.
"No person holding any office under the government of the United States, or of any other state or country, shall act as a general officer or as a member of the General Assembly," the Constitution states. "And if any general officer, senator, representative or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated."
The Rhode Island Supreme Court cited that section in 1955 when it told Roberts he would "immediately vacate" the governor's seat if he accepted President Eisenhower's appointment as a U.S. representative to the United Nations.
In its advisory opinion to Roberts, the high court noted that "from the beginning Rhode Island has been exceptionally jealous of its independence and sovereignty as a state."
The Supreme Court said the "essential question" was whether Roberts would be able to "exercise some portion of the sovereignty of another government," and the court concluded that Roberts would wield that power in the United Nations post.
Roberts decided to turn down the appointment and remain governor. "I chose the worst position," Roberts joked years later, after he was out of office.
IN 1956 -- one year after the Supreme Court issued the Roberts opinion -- Rhode Island passed a law that created an exception to the constitutional prohibition.
The law states, "Any citizen of this state may hold a commission in the militia of this state, the national guard of the United States, or any reserve component of the United States armed forces without thereby vacating any civil office, position or commission held by that citizen."
Williams cited that law in explaining why he may remain chief justice while serving on the federal review panel.
In December, Defense Secretary Donald Rumsfeld named Williams and three others to a panel that will hear appeals from suspected terrorists being held at Guantanamo Bay, Cuba. None of the 660 detainees has been charged, but the Pentagon is expected to begin military trials soon, which would mark the first use of U.S. military tribunals since World War II.
Yesterday, Williams said the tribunals remain "a work in progress," and he has not been sworn in yet.
Members of the review panel will be commissioned as Army major generals, serving two-year terms as "nonactive reserve officers," Williams said. "We only serve intermittently -- we are not full-time government employees. We are citizen soldiers."
Williams said he expects to make some trips to Washington, D.C., but will handle many of his review-panel responsibilities by e-mail and by phone. Williams said he will not take a case if it conflicts with his Supreme Court duties. "This is my number-one job here," he said.
Williams said he will not exercise any U.S. sovereign power, because the review panel can only make recommendations.
Williams emphasized that when he took an oath as judge, he promised to uphold both the United States and Rhode Island Constitutions.
"Serving in the military, especially part-time, is not divided loyalty. In fact, it's a continuation of my judicial duties."
Bruce I. Kogan, a law professor and former interim dean at the Roger Williams University law school, said some would argue that the 1956 law contradicts the state Constitution, but he considers it a clarification.
Kogan said the 1956 law was probably passed in reaction to the Supreme Court's 1955 advisory opinion to Roberts. "I wasn't there," he said. "But a number of state legislators or members of the executive branch must have looked around and said, 'We are in the reserves -- no one could mean you are disqualified because you are in the reserves.' "
HISTORICALLY, Rhode Island has allowed state employees to serve in the military reserves, Kogan said.
"Military service is not making economic policy that could conflict with the interests of the state," he said. "I don't see how this review panel, from a functional standpoint, is incompatible with the chief justice's normal state duties.
Kogan said it would be tough to get people to join the reserves if they had to give up their regular jobs. "Our defense structure -- lately and historically going back to the militia in the Revolution -- has relied at least in part on citizen soldiers," he said.
Two decades after its enactment, the 1956 law was challenged in a case involving Needham, the Superior Court judge, who later gained fame presiding over the 1982 attempted-murder trial of Claus von Bulow.
In a civil complaint, Henry V. Davis charged that Needham had violated the Constitution by serving as both a Superior Court judge and a colonel in the Army Reserves. He argued that the 1956 law contradicted the Constitution, and he asked the court to order the state treasurer to stop paying Needham's salary.
In its 1977 ruling, the state's high court said the Constitution did not bar Needham from holding both roles, because he was in the Army Reserve before he was a judge.
Kogan said the Supreme Court "took an easy way out" by basing its ruling on the timing issue. "They were able to weasel out of the bigger question," he said. "I don't think that opinion completely answers the situation with Chief Justice Williams."
But the opinion did go on -- in what Kogan called nonbinding but authoritative "dicta" -- to note that Davis never claimed a conflict of allegiance between the Army Reserve and judicial posts. The court also noted that "no provision in the Constitution expressly prohibits the appointment to the judiciary of individuals who are members of the militia."
The opinion concluded by saying, "A majority of those jurisdictions addressing the issue support the proposition that membership in the judiciary is not incompatible with a military commission and, therefore, not prohibited under similar constitutional provisions."
So ultimately, Kogan said, the decision bolstered the 1956 law. "I tend to think, if faced with this question again, the Supreme Court would give the statute the presumption of validity."
The Supreme Court did face the issue again in 1991, when Sundlun asked the high court whether the Constitution barred him from being both governor and a board member for the Communications Satellite Corp., known as COMSAT. Former President Kennedy had appointed Sundlun to the board years earlier.
The high court said the test of what constitutes an "office under the government of the United States" was whether Sundlun would wield a portion of U.S. sovereignty. The court found the answer to that question in an affidavit stating that COMSAT was a private corporation and not a U.S. agency, and in a 1962 advisory opinion from Attorney General Robert F. Kennedy stating that COMSAT board members were not U.S. officers. The court concluded Sundlun could continue as governor and a COMSAT board member.
Williams cited both the Needham and Sundlun court decisions, and he said another precedent involves former Gov. Robert E. Quinn, who left the Superior Court bench to enter the Navy during World War II and later returned to the bench.
After reviewing the law and the Supreme Court decisions, Kogan concluded that, "I don't think we should read this [section of Constitution] in such a way that we should boot Judge Williams out of office."
John M. Roney, president of the Rhode Island Bar Association and a former state senator from Providence, agreed, saying, "I don't see anything in the Constitution that would prevent him from accepting a reserve commission."
Roney said that while the Supreme Court emphasized that Needham was in the Army Reserve before he was a judge, it cited cases from California and other states in which people were judges before they accepted military appointments. And in those cases, the courts ruled that the judges were not violating constitutional limits on holding dual offices, he said.
Roney added that Williams' appointment "is not only a great honor for him but for the state of Rhode Island."
