The state Supreme Court will hear arguments today in the bid to oust the chief justice.

01:00 AM EDT on Tuesday, May 24, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Before joining a military review panel, state Supreme Court Chief Justice Frank J. Williams sought advice from a retired Navy judge advocate general who taught ethics at George Washington University Law School.

And Rear Adm. John S. Jenkins said he saw no reason why rules of judicial ethics would prohibit Williams from being a state judge and a member of the review panel, which will hear appeals from suspected terrorists held at Guantanamo Bay, Cuba.

But Jenkins offered no thoughts about whether the state Constitution would force Williams to forfeit the chief justice's job if he joined the military panel. And that's the central argument of Providence lawyer Keven A. McKenna's lawsuit, which claims Williams surrendered the chief justice's job because the Constitution bars dual office holding.

This morning, the four other members of the state Supreme Court are to hear arguments from McKenna and from Attorney General Patrick C. Lynch's office, which is representing Williams. The attorney general argues that Williams can hold both positions without violating the Constitution and that McKenna lacks legal standing to pursue the matter in court.

When McKenna first filed the suit, Williams said, "We researched the issue thoroughly prior to my accepting the appointment." McKenna questioned whether "we" included other Supreme Court justices, saying that if so, those justices should recuse themselves. On Friday, the high court said some justices had seen a staff attorney's memo to Williams about the matter, but they felt they could still be impartial.

Yesterday, in response to questions about who "we" referred to, courts spokeswoman Dyana Koelsch provided The Journal with a copy of an e-mail exchange between former state Court Administrator Thomas G. Bowman and Jenkins.

Bowman, who left the court administrator's job a year ago, wrote to Jenkins on Jan. 13, 2004, about two weeks before Williams' appointment was announced.

"When first contacted by DOD [Department of Defense], Chief Justice Williams confirmed that he would be honored to serve," Bowman wrote. "DOD asked if he was aware of any issue that would preclude his ability to serve on the panel or if there was any state constitutional, statutory or court rule that would preclude his commissioning and panel participation without vacating his appointment as a sitting member of the RI judiciary."

Bowman said, "We reviewed sources of authority and reached the conclusion that there was no constitutional, statutory or regulatory prohibition."

But Bowman said he also wanted to get input from Jenkins, who has chaired an American Bar Association committee dealing with military issues. "Your discussion and opinion, if favorable, will provide the Chief Justice a second opinion 'comfort zone' when he responds to queries from colleagues and the public about the ABA or RI Canon and whether it presents an impediment to his ability to serve," he wrote.

Bowman noted the Rhode Island Canon of Judicial Ethics 4 C.2 states: "A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of law, the legal system or the administration of justice."

Bowman said, "We believe that the rule does not preclude his ability to serve as an Army Reserve officer on the review panel. Naturally, he will not perform his state judicial duties when called to active duty under military orders for intermittent periods."

Bowman also provided a copy of a state law that, as he described it, "allows for the holding of a military commission by a civil officer."

Bowman, a retired Marine colonel, concluded by saying, "We want this issue to stay below the radar and not draw any attention to it, but also be ready to respond if a situation requires it. Again, I thank you for your consideration and look forward to your response. Semper Fidelis."

In reply, Jenkins wrote, "During my tenure as Judge Advocate General of the Navy, and subsequently, there were several judges -- both state and federal, trial court and appellate court -- who served as reserve officers in the Navy Judge Advocate General's Corps. Some of these officers served in our Reserve judiciary units and when on active duty sat as military judges in courts martial."

And, he said, "The issue of ABA Canon 4 C.2 and its earlier formulation in the then-effective judicial canons was never a problem."

During 19 years at George Washington University Law School, Jenkins said he "taught the required course in ethics and professional responsibility and devoted a portion of that course to the Judicial Canons." And, he said, "I know of no opinion which suggests in any way that 4 C.2 applies to a judge's status as a Reserve officer."

Yesterday, McKenna said, "If [Williams] was concerned about that question, the proper way to do it is to ask for an advisory opinion from the state Commission on Judicial Tenure and Discipline, not from some professor at George Washington."

McKenna emphasized that the case is not about ethics rules or state laws -- it's about the Constitution. "It's about the supreme document of the state and whether the will of the people is being flouted," he said.