A civilian and a Navy lawyer join Providence lawyer Keven A. McKenna's lawsuit to declare Frank J. Williams is no longer the state's chief justice.

09:13 AM EDT on Friday, May 20, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- The lawyers who successfully challenged the military tribunal process in representing Osama bin Laden's driver are backing the lawsuit that claims Frank J. Williams is no longer the state's Supreme Court chief justice now that he's on a military review panel.

Georgetown University law professor Neal K. Katyal, the lead civilian defense lawyer for Salim Ahmed Hamdan, and Lt. Cmdr. Charles D. Swift, Hamdan's lead military lawyer, filed a friend-of-the-court brief yesterday, lending support to a suit filed by Providence lawyer Keven A. McKenna.

McKenna argues that Williams automatically surrendered the chief justice's job in September 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.

The brief written by Katyal urged the state Supreme Court to declare that Williams has violated the Rhode Island Constitution, which 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."

Attorney General Patrick C. Lynch's office is representing Williams, arguing that McKenna lacks legal standing and that only the attorney general may challenge Williams' status as chief justice on behalf of the public.

But Katyal urged the Supreme Court to answer "the momentous question of state law presented: Is the state's highest judicial officer subject to the ban on dual office-holding?"

Katyal said that if the state Supreme Court sidesteps that question, either he or a lawyer for another defendant are bound to challenge Williams' qualifications to serve on the military review panel, and the question will end up being decided by a military commission in Cuba.

"An adjudication of whether Chief Justice Williams violated the Rhode Island dual office-holding ban is inevitable," Katyal wrote. "The only question is whether the adjudication will take place in this court or a military commission."

Katyal argued that the matter is best addressed by Supreme Court justices who are experts on Rhode Island law.

Friend-of-the-court briefs are filed by people who are not parties to a case but who have a strong interest in the subject. Katyal and Swift are the first to file such a brief in this case.

In an interview yesterday, McKenna said, "I feel like I was surrounded by the Indians -- no one in Rhode Island would file a friend-of-the-court brief -- and all of a sudden I hear the trumpet and here comes John Wayne and the Fifth Intellectual Brigade. God is good."

McKenna said he was "tremendously appreciative of the assistance of such quality lawyers. I feel like I'm on a Little League team, and I got a call from Manny Ramirez saying he's going to play left field for me."

Katyal and Swift represent Hamdan, a Yemeni who worked as a driver for bin Laden in Afghanistan. Hamdan has been charged with conspiring with al-Qaida to commit murder and terrorism.

In November, Judge James Robertson of U.S. District Court in Washington, D.C., brought Hamdan's trial to a halt when he ruled that President Bush overstepped constitutional bounds and failed to comply with the Geneva Conventions in establishing the military commissions. That decision is now on appeal.

While agreeing with some of Katyal's arguments, Robertson rejected a challenge to the military review panel that includes Williams, saying, "The president has appointed to that panel some of the most distinguished civilian lawyers in the country."

In his friend-of-the-court brief, Katyal said, "Hamdan has a strong interest in demonstrating why the federal court's characterization has been placed in doubt." Also, Katyal stated, "Hamdan has an equally salient interest in resolving whether Chief Justice Williams was 'qualified' to be appointed to the tribunal."

Williams was appointed under a federal statute that allows civilians to receive military rank if they are "qualified," and Katyal said that question can't be answered "without resolving the Rhode Island constitutional issue."

Also, Katyal said the Rhode Island Canon of Judicial Ethics mirrors the state Constitution's ban on dual office-holding, and requires judges to comply with the law. "An accusation that Chief Justice Williams violated the Constitution is serious, and must be resolved to ensure fairness and its perception thereof," he wrote.

Katyal argued that McKenna has the right to ask for a declaratory judgment that Williams has vacated the chief justice's office. And he said the attorney general shouldn't be allowed to label McKenna's suit a "quo warranto petition," which only the attorney general can file on behalf of the public.

"Allowing defendants to recharacterize the plaintiff's claims would do grievous damage to the rule of law, and would treat the plaintiff as the dummy of a ventriloquist defendant," Katyal wrote. "Similarly situated plaintiffs would face insurmountable hurdles if defendants could urge courts to ignore specific claims for relief and instead to adjudicate them under statutes that happen to be more convenient for defendants."

Katyal noted state prosecutors often argue cases before the Supreme Court, saying the attorney general's role representing Williams is "fundamentally at odds with his role as an attorney acting 'in the public interest.' "

"To vest the attorney general with the power to block the removal of a chief justice, no matter the constitutional violation, would effect a massive change in Rhode Island law and destabilize the vision of the drafters of the 1843 Constitution," Katyal wrote. "It would repose this vital check on government abuse in the hands of an official who, no matter how good his intentions may be, faces both a structural conflict of interest and a conflict stemming from the duty of loyalty inherent in an attorney-client relationship."

Katyal is asking for permission to argue before the court next week.

Digital Extra: Read the full text of the new briefs filed in the case of McKenna v. Williams at:

http://projo.com/extra/2005/williams/