Keven A. McKenna asks the high court to rehear his case against Chief Justice Frank J. Williams, but his petition is called "inappropriate and insulting."

01:00 AM EDT on Thursday, June 16, 2005

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Attorney General Patrick C. Lynch's office told the state Supreme Court on Tuesday that Keven A. McKenna has no grounds for rearguing a lawsuit that claimed Frank J. Williams is no longer the high court's chief justice.

"Rather than point out anything overlooked or misapprehended by this honorable court, the petition simply disputes in often inappropriate and insulting terms the well-reasoned decision entered in this case," Assistant Attorney General James R. Lee wrote in a legal memorandum filed Tuesday.

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

On Monday, McKenna filed a motion seeking to reargue the case. And in Tuesday's reply, Lee said McKenna's legal memo was "ripe with misrepresentations."

"Simply put, [McKenna] was wrong from the outset and he cannot accept that," Lee wrote.

McKenna's "most egregious" claim was that he never had a chance to address the merits of the case, Lee said. "Nothing could be further from the truth because the truth is that he did address the merits of this action even in excess of this court's page limitations," he said. "If anything, [McKenna] had an advantage over all petitioners when this court reached the merits of this action."

Lee noted that lawyers for Osama bin Laden's driver filed a friend-of-the-court brief that urged the Supreme Court to address the merits of McKenna's case rather than simply ruling on his legal standing. "[McKenna] never objected to that request," Lee wrote. "Rather, he praised and cheered the amicus brief in every public outlet that would listen to him, likening those arguments to the arrival of 'John Wayne and the Fifth Intellectual Brigade.' "

Lee said it was tough to respond to McKenna's legal memo because it was "a disjointed and rambling document that does not address any matter not already fully briefed to this court."

McKenna criticized the Supreme Court for ruling that the state Constitution's ban on dual office-holding no longer applies to judges because they're now "appointed" rather than "elected." A three-justice majority concluded that change occurred in 1994 when another section of the Constitution was amended to usher in judicial merit selection.

Lee said McKenna misunderstood or misrepresented the court's ruling. He said the dual office-holding ban was not repealed. Rather, he wrote, "it is simply rendered inapplicable to those whom the more recent amendment has removed from the class."

Also, Lee stated that Rhode Island's Constitution does not and cannot prohibit military service. "Service to our nation in a time of war without penalty by the state of Rhode Island should not be altered, weakened or delayed by reargument," he wrote. "It should remain our law and it should be final."

Lee also reiterated that McKenna lacked legal standing. "The removal of a government official from office is a matter of such weight that it has long been recognized to be within the constitutional authority of the attorney general," he wrote, "and judicial review of such an act is within the sole jurisdiction of this honorable court."