CHIEF JUSTICE Frank Williams’s Oct. 11 “appointment” of William R. Guglietta, chief legal counsel to Majority Leader Gordon D. Fox (D.-Providence), to the position of chief magistrate of the state Traffic Tribunal was an impeachable act, a violation of the constitutional principle of separation of powers, and a violation of the chief justice’s oath to enforce the state constitution.

A chief justice is not a governor. Constitutional officers are prohibited from exercising the power of other constitutional officers. In the 2004 separation of powers constitutional amendments, the governor was delegated by the electors the same powers of appointment as a U.S. president to appoint principal officers of the state.

The position of chief magistrate is such a “principal officer.” It has not only the same powers as a judge, but also the power to appoint other Traffic Tribunal magistrates within the judicial branch. Magistrates themselves are also principal officers of the state, subject to appointment by the governor.

Pursuant to the will of the electors expressed in the 1994 merit-selection constitutional amendment, judges are to be appointed by the governor, after recommendation by the Judicial Nominating Commission, with the subsequent approval of the Senate. A judge is an officer who enters judgments. Magistrates enter judgments. Magistrates must be appointed by the governor.

The purpose of “separate and distinct” executive, legislative, and judicial powers in the state constitution is to ensure that the executive department does not legislate nor adjudicate, that the legislative branch does not adjudicate nor appoint, and that the judicial department does not appoint nor legislate. Each department is to serve as a check and balance upon the other department.

The judicial department is prohibited from making appointments that are within the exclusive powers of the governor.

The role of the judiciary was to act for the people to protect them against unconstitutional excesses of the legislative branch, and the executive branch. The chief justice should have declined to exercise the unconstitutional appointment of a chief magistrate and the Supreme Court should have declared such statute unconstitutional

The judiciary is denied executive and legislative power in order that it not be a judge of its own executive and legislative actions; and that it does not sit in the dual positions of adjudicator and administrator.

Yet, the Supreme Court reviews writs from motorists adjudicated by chief magistrate and Traffic Tribunal magistrates and judges. Those Traffic Tribunal magistrates, who are within the judiciary, have been either appointed by the chief judge of the district court or by the chief judge of the Supreme Court, or, eventually, by the chief magistrate.

In a continuing violation of the separation of powers restrictions, the chief justice enjoys daily the exercise of executive powers of the governor over appointments, firing and hiring, and budget control within the judiciary. The legislature has also delegated to the chief justice the right to appoint the court administrator of the judiciary, who serves at his pleasure as do his assistants. The court administrator and his assistants, in turn, under the direction of the chief justice, control the judiciary’s $796 million budget, and the hiring and firing of its 750-plus employees, without any constitutional authority from the governor.

Review of appeals by discharged employees of the judiciary and unhappy courthouse construction contractors are subject to judicial review by the five members of the Supreme Court, whose assignments are controlled by the chief justice.

The other members of the Supreme Court apparently support the chief justice’s holding dual positions.

Article III§6 provides that if any “judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated.” Nevertheless, the chief justice accepted federal appointment to the U.S. Defense Department panel reviewing incarcerations in Guantánamo, Cuba. A majority of the Supreme Court claimed that 1994 voters, who approved merit selection, approved of the chief justice’s holding those dual offices.

The members of the Supreme Court appear to have prejudged the question of the constitutionality of the exercise of dual powers by improperly lobbying, in a letter to the House of Representatives, for the power of judges to appoint magistrates.

Article X§1, limits their role on the Supreme Court to reviewing questions of law before them. Article X§3 limits the advisory role of the Supreme Court to written opinions requested by the House of Representatives. There was neither a case nor a written request on appointment power before the Supreme Court.

What can voters do if the judiciary and the legislature have collaborated to undermine the state constitution’s system of checks and balances against the expressed will of people?

A Supreme Court appeal appears futile. The General Assembly is out of session, and not subject to election until November 2008. A chief justice who does the bidding of the General Assembly is not likely to be impeached.

Consider these suggestions.

• Urge your governor not to fund unconstitutional appointments. Surely funds for unconstitutional appointments could be better used for other purposes, such as funding for abandoned children in the state’s custody.

• Urge your state senator not to approve appointments to unconstitutional positions.

• Urge your representative and senator to repeal and amend the laws delegating the governor’s budgetary and appointment powers to the chief justice and to other chief judges and to the chief magistrate.

• Vote in 2008 only for a state representative and senator who supports constitutional judicial reform.

Keven A. McKenna was president of the 1986 Rhode Island State Constitutional Convention, a Providence Municipal Court judge in 1986-1991; and a state representative in 1979-1984.