Lawyer Keven A. McKenna argues the state Constitution prohibits the chief justice from holding his office and a state lawyer counters that McKenna has no standing to make that claim.

01:00 AM EDT on Wednesday, May 25, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- The four associate justices of the state Supreme Court yesterday heard arguments in the lawsuit that claims Frank J. Williams is no longer the high court's chief justice now that he's on a military review panel.

Each side was given 10 minutes, and much of the debate focused on whether Providence lawyer Keven A. McKenna has legal standing to pursue the matter in court.

Assistant Attorney General James R. Lee, who is representing Williams, argued that only the attorney general may act on behalf of the public to remove government officials. And he said the attorney general's office has determined there is no need to take such action in this case because the state Constitution does not prevent Williams from holding both positions.

"This is not the case to create an exception to centuries of consistent law," Lee told the justices. "This is a case where the attorney general acted properly, and an individual simply doesn't like that decision."

McKenna said the Rhode Island Constitution contains the strongest ban against dual office-holding in the country. And he argued that Williams forfeited the chief justice's job last year when he joined the review panel, which was formed to hear appeals from suspected terrorists held at Guantanamo Bay, Cuba.

McKenna said the attorney general is, in effect, arguing that "Frank Williams is unreviewable -- he's untouchable by anybody because he said so." But McKenna said the constitutional provision is self-executing, so "the people removed him -- I don't need any assistance."

Williams has recused himself from the case and was not in the packed courtroom yesterday. Courts spokeswoman Dyana Koelsch said Williams was in New York attending the law school graduation of a friend's daughter.

The case was heard on the show cause calendar, giving each side 10 minutes to say why the matter shouldn't be summarily decided. In full or "plenary" cases, each side has 30 minutes to argue. Koelsch said the court usually takes 12 to 15 weeks to issue an opinion, but plans to handle this case in "an expedited manner" because of "the seriousness of the allegation and the crucial issues at stake."

Yesterday's hearing began with Lee saying, "We make really one simple request, and that is that we be treated by this court the way similarly situated people have been treated in the court's decisions over the past several decades."

Lee focused on McKenna's legal standing, saying, "It is beyond dispute that the only person who has standing to bring a quo warranto action on behalf of the public is the attorney general. . . . What [McKenna] does is say he is not bringing quo warranto simply because he put a different label on this action seeking to oust a state official from office."

The justices asked five questions during the hearing. At one point, Justice Paul A. Suttell asked Lee a question that had been posed in an earlier Superior Court proceeding: What would happen if McKenna had filed a complaint against the attorney general rather than the chief justice?

"As I said below," Lee replied, "if that circumstance ever came up, it would clearly be a very, very different question than what we have. This is an action where the attorney general has the ability, and it is a third party. If the circumstance you mentioned ever arose, I can see this court might possibly authorize another constitutional officer to bring that action."

On May 11, the three most experienced associate justices on the Superior Court ruled that McKenna had legal standing to proceed with his suit. The Supreme Court called a halt to the lower court proceedings the next day, saying it had jurisdiction over petitions challenging someone's right to hold public office.

Yesterday, McKenna argued that he has legal standing as a lawyer who represents clients before the Supreme Court. "I'm not a member of the public," he said. "As a lawyer, I have a property interest in my license."

As a lawyer, McKenna said, "If you violate the canon of ethics, you can be disciplined. You have positive obligation to report to the appropriate authorities whether a judge has broken the law or not." And he emphasized that the Constitution is "the supreme law of the state."

In answering a question from Justice Francis X. Flaherty, McKenna said the attorney general is trying to recharacterize his lawsuit as a quo warranto action. (Quo warranto is Latin for "by what authority.") He said he's seeking a declaratory judgment, which would say whether Williams has forfeited the chief justice's job.

McKenna concluded by asking the Supreme Court to return the case to the Superior Court. "This is a good way to do it," he said. "I think everybody will think we've handled this difficult and sensitive question properly." Without a transcript or a ruling from a lower court, the Supreme Court is "going to have to decide this question on pure speculation," he said.

When given a chance for rebuttal, Lee said, "I would disagree with Mr. McKenna that what he is asking for is a narrow exception in standing when he says he's an attorney."

Lee noted that lawyers for Osama bin Laden's driver filed a friend-of-the court brief in this case. Citing that brief, he warned that if the court allows McKenna's suit to proceed, legal standing would expand to include people incarcerated at Guantanamo Bay and those who might be incarcerated. "So it's really unrestricted in scope if the law is changed ex post facto to grant standing to those other than the attorney general," he said.

Afterward, the author of the friend-of-the-court brief, Neal K. Katyal, said, "The attorney general's assertion that a person at Guantanamo Bay cannot contest the lawfulness of the appointment of someone who may approve his death sentence is astonishing." Also, he said, "If the attorney general's arguments are accepted, it will lead to the astonishing proposition that no one besides the attorney general -- who, by the way, is the lawyer for the chief justice -- can enforce what is a patent violation of the Rhode Island Constitution."