Besides violating Rhode Island's Constitution, Chief Justice Frank J. Williams' "dual office-holding will subject him to possible federal constitutional attacks" by Guantanamo prisoners, says Providence lawyer Keven A. McKenna

09:15 AM EDT on Friday, May 20, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Attorney General Patrick C. Lynch's office and Providence lawyer Keven A. McKenna yesterday filed dueling briefs in the legal battle over whether Frank J. Williams is still chief justice of the Rhode Island Supreme Court.

McKenna argued that Williams forfeited that position last year when he joined a military review panel because the state Constitution bars such dual office-holding.

"Article 3, Section 6 on Sept. 21, 2004, automatically removed Williams' judicial robes," McKenna wrote. "The question is now who will tell the 'Emperor' he wears no robes, if . . . the respondents [McKenna and his law firm] by way of the Declaratory Judgment Act do not?"

Assistant Attorney General James R. Lee, who is representing Williams, argued that McKenna lacks standing to bring this legal action, saying only the attorney general can make such a challenge on behalf of the public through a so-called quo warranto petition.

"The constitutional infirmity presented by this ill-conceived action is not that our chief justice seeks to serve his country in its time of need, it is that Mr. McKenna seeks to usurp the powers and duties of the attorney general," Lee wrote.

Lee charged that McKenna is disguising a quo warranto petition as a declaratory judgment action, and he said McKenna's action "calls into question the validity of this court's rulings" on a daily basis.

Lee argued that Article 3, Section 6 of the Constitution does not apply to military service, a supreme power of the federal government.

"[McKenna] seeks not only to limit the unlimitable right of all Americans to serve their country in a time of need, he also seeks to create a conflict between the Rhode Island and U.S. Constitutions where none exists," Lee wrote. "The importance of these issues and their potential chilling effect on military service during a period of war and a national need for increased service demands that this court dismiss this 'complaint' as expeditiously as possible based on [McKenna's] obvious lack of standing and this court's consistent line of prior decisions."

McKenna contended that he has legal standing to pursue the matter because he is a lawyer who practices before the Supreme Court, and he has a duty to find out whether Williams is still a judge or not. As an attorney "licensed to argue cases before judges -- not non-judges," he said he has "a personal and unique stake in the controversy" that's "separate from the public at large."

McKenna said avoiding the question of Williams' status will not end the controversy. "In Washington, Williams' dual office-holding will subject him to possible federal constitutional attacks by Guantanamo litigants," he wrote.

Also, McKenna said, "If the attorney general is the only person with discretionary power to challenge Williams' status, that fact will be a political question in the 2006 race for attorney general, and in every campaign thereafter, until the question of his Sept. 21, 2004, removal is finally addressed. Consider the potential slogans for attorney general in the 2006 election campaign: 'Vote for me for AG and remove Williams.' "

The Supreme Court is to hear arguments Tuesday.