Lawyer Keven A. McKenna had argued that Frank J. Williams was no longer the state's chief justice because he had accepted a federal appointment to a military tribunal review commission.

01:00 AM EDT on Tuesday, June 7, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- The Rhode Island Supreme Court yesterday ruled that the state Constitution does not prohibit Chief Justice Frank J. Williams from serving on a military review commission set up to hear appeals by suspected terrorists held at Guantanamo Bay, Cuba.

Providence lawyer Keven A. McKenna filed a lawsuit claiming Williams forfeited the chief justice's job when he accepted the federal appointment last year because of the state Constitution's ban on dual office holding.

But the other four members of the Supreme Court dismissed the case yesterday, saying McKenna lacks legal standing because only the attorney general can make such a challenge on behalf of the public. Three veteran Superior Court justices had said McKenna did have legal standing, but the Supreme Court overruled the lower court, saying only the high court has jurisdiction in this case.

"[McKenna] is neither a roving prosecutor nor an attorney general without portfolio, but a lawyer engaged in the private practice of law in this state," the court wrote. "As such, he has no standing to seek the ouster of a public official from office."

Although it didn't have to, the Supreme Court went beyond the question of legal standing to address the merits of McKenna's argument. It said the Constitution's ban on dual office holding no longer applies to Supreme Court justices because they are now "appointed" rather than "elected." And it said McKenna's interpretation of the Constitution would "run afoul" of the U.S. Constitution by keeping Williams from military service.

"Can we require state officials to choose between their livelihood and service to their nation?" the court asked. "Can we interpret our state Constitution as forcing an official to abandon his or her career when answering the call of duty? Can the Rhode Island Constitution stand as even the slightest obstacle to the maintaining of the military as the federal government sees fit? In our opinion, it cannot."

The court concluded by saying, "we wish to indicate our conviction that the chief justice accepted this position with the purest of motives and out of a patriotic spirit of long duration. We are satisfied that this limited and temporary service in a judicial capacity associated with our nation's antiterrorism efforts will in no way conflict with his duties as chief justice."

Williams did not participate in the decision. All four associate justices -- Maureen McKenna Goldberg, Francis X. Flaherty, William P. Robinson III and Paul A. Suttell -- agreed to dismiss the case. But Suttell dissented from the majority's conclusion that the Constitution no longer applies to judges.

Article 3, Section 6 of the Constitution says "if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated."

The court's majority noted another section of the Constitution was amended in 1994 to usher in merit selection for state judges. Now, when there's a Supreme Court vacancy, the Judicial Nominating Commission submits finalists to the governor, whose nominees face confirmation votes by the House and Senate.

"Until the 1994 amendment became effective, the justices of this court were elected by the General Assembly sitting in Grand Committee," the court wrote in a footnote. "But the modality of their election is irrelevant. What is significant is that they were elected, whereas now justices of this court are appointed."

The three justices said they presume the drafters of the 1994 amendment considered the effect it would have on the ban on dual office holding.

But Suttell noted the 1994 amendment made no mention of Article 3, Section 6, and while that section mentions the "election" of judges, he said the word should be read in a broader sense that also encompasses "appointment."

"Whether these individuals are elected through popular elections, elected through Grand Committee elections, or appointed through the joint efforts of the executive and legislative branch is extraneous to the intent and function of Article 3, Section 6," Suttell wrote. "I believe that Article 3, Section 6 should be interpreted so as to give vitality to its purpose -- 'to secure the undivided loyalty and service' of a discreet class of public officers."

Suttell concluded by saying, "I think it important to note the extraordinary circumstances occasioned by this case, in which we have been called upon to consider a complaint, the subject of which is a colleague with whom we all enjoy a close working relationship."

While disagreeing with part of the majority opinion, Suttell agreed that McKenna lacks standing and that the case should be dismissed.

"The chief justice is as much subject to the law as any other public officer or, indeed, any other citizen," Suttell wrote. "By the same token, the chief justice is as much entitled to the protections of our well-settled jurisprudence as any other public officer or citizen."

A courts spokeswoman said Williams had no comment. Attorney General Patrick C. Lynch, whose office represented Williams, issued a statement saying, "Today's Supreme Court ruling makes it clearly evident that there was zero substance to Keven McKenna's argument."

"The position our chief justice has accepted is not just any federal position. He has answered the call to serve in the military as a major general -- and here's the operative phrase -- during a time of war," Lynch said. "On a larger note, today's ruling upholds the right of all Rhode Island citizens to serve their country without fear of loss of employment."

McKenna called the decision an "insult to the people of the state." He said it was "absurd" to hold that the 1994 amendment excused judges from the dual office-holding ban. "The Supreme Court has hijacked the state Constitution," he said. "It's a blatant amendment of our state Constitution to protect 39 judges, particularly Chief Justice Williams."

McKenna said the Supreme Court ripped the case away from the lower court and rendered a decision without hearing his arguments on the merits. "The handling of the case and the decision are outrageous," he said. "The next time [Williams] talks to a bunch of fifth-graders about how great the Constitution is, let him talk about his own case."

McKenna said he sees no viable way to appeal to the U.S. Supreme Court. "It's only appealable to the people of the state of Rhode Island," he said. "What I'm thinking of now are impeachment options and political options. That's how outraged I am."

Read the full text of the state Supreme Court's decision in the case of McKenna v. Williams at:

http://projo.com/news/pdf/2005/20050606williams.pdf