Robert G. Flanders Jr. says the state's chief justice should have declined to serve on a military review panel.

01:00 AM EDT on Wednesday, June 8, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- By joining a military review panel, state Supreme Court Chief Justice Frank J. Williams put his colleagues in a "no-win situation" that jeopardized the high court's reputation, former Supreme Court Justice Robert G. Flanders Jr. said yesterday.

On Monday, the Supreme Court dismissed a lawsuit that claimed Williams forfeited the chief justice's job when he joined the military review panel that was set up to hear appeals from suspected terrorists held at Guantanamo Bay, Cuba.

Flanders, who resigned from the high court last year, said he disagreed with the ruling's key points. He argued that Providence lawyer Keven A. McKenna does have legal standing to pursue the matter, and he said state judges should not be considered exempt from a section of the Rhode Island Constitution that bars dual office-holding.

Flanders said a challenge based on the state Constitution was inevitable "and the ultimate arbiter would have to be his colleagues on the Supreme Court."

"So he should have declined the opportunity because ultimately he was forcing his colleagues to rule on the question," Flanders said. "Why put your colleagues and your court in a no-win situation?"

If the four associate justices had ruled in McKenna's favor, they would have ousted their chief justice, Flanders said. "And if they rule the other way, they risk being perceived as protectionist," he said. "It risked the perception that all they are doing is protecting themselves and carving out an exception to the dual office-holding ban."

Flanders said, "I would think he wouldn't want to put his colleagues and his court in a position that could damage the reputation of the court. I would think his role as chief justice is to protect and foster the reputation of the court."

Flanders spent eight years on the Supreme Court before resigning last year at age 54. He is now a partner in the Providence law firm of Hinckley, Allen & Snyder and teaches constitutional law at Roger Williams University and Brown University.

Flanders was one of five finalists for chief justice in 2001, but Gov. Lincoln C. Almond chose Williams. Flanders became known for his frequent dissents on the high court, and said he would have dissented in Monday's ruling.

Williams declined to comment yesterday. Courts spokeswoman Dyana Koelsch said it would have been Flanders' prerogative to dissent if he were still on the court, and she noted that Justice Paul A. Suttell did dissent in part of the ruling.

Koelsch said Williams has explained that he accepted the military review panel appointment for a variety of reasons. "He believes in public service, and he has a passion for the law," she said. "He felt it was his patriotic duty to answer the call."

Also, she said, "In 2002, he visited Guantanamo Bay to visit Rhode Island reservists stationed there, and he realized that with his experience -- as an Abraham Lincoln scholar, judge and Vietnam veteran -- he could bring his particular talents to bear to help."

Koelsch said Williams did research on whether his serving on the military review panel would create a conflict with the state Constitution, and he was satisfied it would not. "The decision bears out his research because the Supreme Court concluded, as well, that there is no prohibition on his serving his country while sitting as chief justice," she said.

Koelsch said it's not clear when the military review panel will begin its work, because of legal challenges to the military tribunal system.

In Monday's ruling, the Supreme Court said McKenna lacked legal standing and that only the attorney general may challenge an official's right to hold office on behalf of the public.

Flanders said there ought to be a way to challenge whether a Supreme Court justice has forfeited his office other than through the attorney general's office, which prosecutes cases before the Supreme Court.

"The attorney general has a conflict of interest of his own which might prevent him from wanting to raise the question," Flanders said. "In a situation where the attorney general is representing the chief justice, I don't see how you can say he's the only person who can bring the lawsuit, especially when the Constitution places no restriction on who can raise the question."

Article 3, Section 6 of the state 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."

But the Supreme Court's majority said that ban does not apply to Williams because judges are now "appointed" rather than "elected." That change took place in 1994, the majority said, when another section of the Constitution was amended to create a merit-selection process for state judges.

Flanders said: "The general rule is that repeals by implication are disfavored. The notion that when the legislature changed the way of selecting judges it intended to change the dual office-holding ban is, in my judgment, a real stretch."