The state Supreme Court takes away from the Superior Court a lawyer's legal challenge to the chief justice's ability to hold office.

01:00 AM EDT on Friday, May 13, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- The state Supreme Court yesterday took control over the lawsuit that claims Frank J. Williams is no longer the high court's chief justice.

On Wednesday, three Superior Court judges ruled that Providence lawyer Keven A. McKenna had legal standing to proceed with the suit.

But 25 hours later, the Supreme Court called a halt to all Superior Court proceedings, saying it has jurisdiction over petitions challenging someone's right to hold a public office.

In its four-page order, the court said the case could hinge on the question of McKenna's legal standing. And, it stated, "It would be a needless waste of judicial resources and unduly burdensome on the parties for the Superior Court to continue this litigation in the absence of a determination as to its justiciability."

The court directed each side to appear on May 24 to argue why the matter shouldn't be summarily decided, and it gave lawyers until May 19 to file legal memoranda of no more than 20 pages.

Courts spokeswoman Dyana Koelsch said that Williams did not participate in yesterday's decision. She said the four Supreme Court associate justices conferred before the order was issued.

The state Constitution says that if a judge "shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated."

McKenna's suit claims Williams automatically forfeited the chief justice's job on Sept. 21, 2004, when he was sworn in as a member of the military review panel that will hear appeals from suspected terrorists held at Guantanamo Bay, Cuba.

Williams says the review panel appointment does not violate the Constitution or interfere with his loyalty to the state. He is being represented by Attorney General Patrick C. Lynch's office.

The day began with Assistant Attorney General James R. Lee filing a petition, at 8:22 a.m., asking the Supreme Court to stay the lower court's ruling and to assume control over the matter.

"Petitioners ask nothing more than the below action be transferred to the court with sole and original jurisdiction to hear it prior to the court and counsel expending countless hours resulting in rulings that are later vacated for a want of jurisdiction," Lee wrote.

Lee argued that only the attorney general can file a so-called quo warranto petition on behalf of the public to challenge a person's right to hold a public office. (Quo warranto is Latin for "by what authority.")

McKenna had argued -- and the Superior Court judges had agreed -- that he had standing to request a declaratory judgment about whether the chief justice's position is now vacant. McKenna says he has standing because he is a lawyer who brings cases before the Supreme Court and he has a right to know if Williams is still a judge.

"There is more than one road to Rome," McKenna wrote in a document filed yesterday. "Quo warranto is not an exclusive remedy and does [not] deny jurisdiction to the R.I. Superior Court."

Lee contended that McKenna was "disguising" a quo warranto petition as a request for a declaratory judgment.

And in its order, the Supreme Court noted that it overruled the Superior Court in a 1979 case, which pitted former Providence City Council President Pro Tempore Ralph Fargnoli Jr. against former Mayor Vincent A. Cianci Jr., saying: "This court vacated the judgment on the ground that the claim to retain a public office was in actuality a petition in equity in the nature of quo warranto, an action within the exclusive jurisdiction of this court."

In another of his filings yesterday, McKenna said, "A grant of a request for a frivolous stay by this Honorable Supreme Court compromises the perception of judicial integrity. Williams has publicly implied that his honorable Supreme Court may have prejudged these issues behind closed doors."

McKenna referred to an April 9 Journal article that quoted Williams as saying, "We researched this issue thoroughly prior to my accepting the appointment as appellate judge to sit on the military review panel." McKenna said he has a right to depose Williams to find out if "we" includes other Supreme Court justices.

In his filing, Lee emphasized the need to act quickly, saying, "this improper action not only seeks to interfere with military service to our nation, it calls into question the validity of the court's rulings and the actions of constitutional officers on a daily basis."

But McKenna stated, "There is no emergency other than the fact that Frank J. Williams does not want to be deposed, answer requests for production and requests for admission."

Lee and McKenna appeared before Supreme Court Justice Maureen McKenna Goldberg, who was the duty judge assigned to handle pressing matters yesterday. Koelsch said McKenna Goldberg, who is not related to McKenna, conferred with the three other justices later in the day, and the court order was issued shortly before 5 p.m.

"It's a sad day for those of us who are concerned with the integrity of judicial review," McKenna said afterward. "The preemptory procedures that occurred within the last 24 hours were extraordinary. I've had cases take two or three years at the Supreme Court. Twenty-four hours is almost as good as Burger King. How could they have read anything I wrote?"

McKenna said he received the court's order when he was filing a reply to a question that McKenna Goldberg had raised earlier in the day. "So there's an inference of prejudgment because the normal rules are you get time to answer things and file memos," he said.

Lee disagreed, saying, "[McKenna] is an officer of the court and he should not be making these unfounded statements. He has absolutely no basis to say the court has prejudged anything. If this court had prejudged, they could have decided the matter today."

"It's an important issue, and it's a simple issue," Lee said, "and those two things lend themselves to a speedy resolution."