The Providence lawyer calls on the state Supreme Court to withdraw its decision on his challenge to the chief justice's authority to hold office.

01:00 AM EDT on Tuesday, June 14, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE --

In a blistering legal memorandum, Providence lawyer Keven A. McKenna is asking the state Supreme Court for a chance to reargue a lawsuit that claims Frank J. Williams is no longer the high court's chief justice.

The Supreme Court dismissed McKenna's suit last week, saying McKenna lacked legal standing and that the state Constitution does not prohibit Williams from being both chief justice and a member of a military review panel set up to hear appeals from suspected terrorists held at Guantanamo Bay, Cuba.

In a memo filed yesterday, McKenna said the Supreme Court's decision was "based upon naked and empty fabrications of logic, fact and law that defy the clear meaning of the provisions of the U.S. and Rhode Island Constitutions, and state and federal law."

McKenna called for the court to withdraw its decision and return the matter to the Superior Court, which had determined McKenna did have legal standing.

The Supreme Court ruled that the state Constitution's ban on dual office- holding no longer applies to members of the court because judges are "appointed" rather than "elected." A three-justice majority said that change happened in 1994 when another section of the Constitution was amended to institute a merit-selection process for state judges.

In his memo, McKenna said, "This court cannot create an amendment to the Constitution by implication." He said, "There is simply not one case and not one iota of evidence in any document, or any history book, to support the speculative self-serving opinion of this court exempting itself from the dual office-holding prohibitions of Article 3, Section 6."

McKenna said no other judge in the state Constitution's 162 years has claimed a right to hold two judgeships -- one in Rhode Island and one in another jurisdiction.

"For example, could Judge Ronald [Lagueux] have kept his position as a state Superior Court judge when he was appointed as a U.S. District Court judge in Rhode Island?" McKenna wrote. "After all, it is only a block away, and the federal court does not handle that much business anymore. Perhaps a Rhode Island Superior Court judge, vacationing on the Vineyard, could hold a summer job there as a part-time judge?"

McKenna criticized the Supreme Court for concluding that only the attorney general can challenge an official's right to hold office on behalf of the public. "If citizens cannot enforce the limitations upon the powers they have delegated by their votes to the state of Rhode Island, then who can?" he asked. "The fox has been given the chicken coop."

McKenna also criticized the court for ruling on the merits of the case after halting the trial court proceedings and deciding he lacked legal standing.

"The court made up its own question and improvidently answered it gratuitously, on speculation only, and without the opportunity to brief or argue the question decided," he wrote. "This honorable court should have the humility to reconsider the breadth and destructive nature of their recent opinion and withdraw it."

Michael J. Healey, a spokesman for Attorney General Patrick C. Lynch, said, "No matter how incendiary Mr. McKenna intends his language to be, this office will resist the temptation to respond in kind and will answer in our court pleadings."

Courts spokeswoman Dyana Koelsch said the Supreme Court has received McKenna's motion and "will take it up in the normal course of business." She said it would be inappropriate to comment on the substance of the motion now.

Koelsch has said the Supreme Court had asked each side to argue why the case should not be summarily decided, and she said the merits of the case were addressed by the attorney general and by lawyers who filed a friend-of-the-court brief supporting McKenna.