It is unconstitutional to serve both as Rhode Island chief justice and as a member of a military review panel, a lawyer asserts.

01:00 AM EDT on Saturday, April 9, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- A lawsuit filed Thursday claims that Frank J. Williams is no longer chief justice of the Rhode Island Supreme Court because he is on the military review panel that will hear appeals from suspected terrorists in Guantanamo Bay, Cuba.

The suit cites a section of the Rhode Island Constitution that says that "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 suit was filed by Keven A. McKenna, a former state representative and Providence mayoral candidate who chaired the state's last constitutional convention in 1986. It states that the chief justice's office was automatically vacated when Williams was sworn in as a review panel member on Sept. 21, 2004.

"The Constitution is clear as a bell," McKenna said in an interview yesterday. "I've given this [section] to children, and they understand you can't work for the state and the federal government at the same time. We no longer should allow a person to break the state Constitution who reviews the state Constitution."

Williams issued a written response yesterday, saying, "I will defend myself vigorously against the allegations made in this lawsuit. We researched this issue thoroughly prior to my accepting the appointment as an appellate judge to sit on the Military Review Panel created by the President and Secretary of Defense."

McKenna's suit asks the state Superior Court to declare the chief justice's office vacant and restrain Williams from occupying the office. A status conference is set for May 4 and oral arguments before Superior Court Judge Daniel A. Procaccini are scheduled May 23.

The suit names Governor Carcieri and Judicial Nominating Commission Chairman Girard R. Visconti as defendants, saying they should have moved to fill the vacant chief justice's position. And it names General Treasurer Paul J. Tavares as another defendant, saying he has "continued illegally to pay" Williams' $153,000 salary.

McKenna, a Providence lawyer, said he filed the suit because he is passionate about the state Constitution, his law practice is regulated by the state Supreme Court and he represents clients before the high court. "If I'm representing you in a case and there's a 3-2 decision and Williams is the deciding vote, and I don't object to Williams being up there, you'd sue me for malpractice," he said.

In his written statement, Williams said: "I was honored to accept the request to serve my country. As of yet, the Review Panel has not heard any cases nor am I receiving any salary or other compensation from the federal government."

Williams said, "While I am honored to serve on the Military Review Panel, this service will be intermittent and will not interfere with my duties as the chief justice or my loyalty to the Rhode Island judiciary and the people of Rhode Island who I serve."

Article 3, Section 6 of the Constitution aims to ensure the undivided loyalty of state officials.

In his 51-page legal memo, McKenna emphasized that Rhode Islanders were distrustful of foreign powers and the national government when the state Constitution was adopted in 1842.

McKenna noted that in 1955, the Rhode Island Supreme Court cited Article 3, Section 6 when it told Gov. Dennis J. Roberts he would "immediately vacate" the governor's seat if he accepted an appointment as U.S. representative to the United Nations. Roberts decided to turn down the appointment and remain governor.

One year later, in 1956, Rhode Island passed a law aimed at carving out exceptions to the section. The law says: "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."

When interviewed for a January 2004 Journal story, Williams cited the 1956 law in explaining why he may remain chief justice while serving on the federal review panel.

But in his legal memo, McKenna said, "The General Assembly may not, through a statute, change constitutional rights." He said, "Only the voters of this state can amend the mandatory state constitutional provisions of Article 3, Section 6."

McKenna said that 12 days after the Journal story ran, Sen. Walter S. Felag Jr., D-Warren, introduced an amendment to the 1956 law stating that citizens may hold positions in "active" or reserve components of the armed forces without vacating their civil positions. McKenna said the amendment was meant "to make the statute applicable to Frank Williams' expected appointment as a major general in the armed forces" as part of the military review commission.

In the January 2004 Journal story, Williams said he would not exercise any sovereign federal power, because the review panel can only make recommendations. But McKenna disputed that assertion, saying, "Williams expects to exercise independent judgment of war crime issues and procedural defense issues."