Was justice served? (continued)

INTERPRETING THE LAW

There is more support for the part of the court’s decision that said McKenna wasn’t entitled to file the case, because only the state attorney general can bring this kind of challenge.

Snow says he was on the losing side of that issue himself, when he represented a citizens’ group trying to block the election in 1990 of former Providence Mayor Vincent A. Cianci Jr., after the controversial politician had been forced from office years earlier. "This has been long-standing Rhode Island law," says Snow. "I don’t necessarily agree with it, but that’s the nature of the legal business."

On the other hand, the three-judge panel that initially was reviewing the Williams’s case in Superior Court appeared to disagree, ruling that McKenna had standing to pursue the matter.

Flanders believes the constitution is actually "silent" on who can bring these kinds of cases, and he disputes the idea that only the attorney general can question the office holding of Supreme Court justices. He says the attorney general is in a ticklish spot in that kind of situation, since the office’s prosecutors appear so frequently before the high court. "I don’t think it would be appropriate, in this situation, for the attorney general to be the only one who could raise that," says Flanders.

The former justice thinks the best course would have been for the Supreme Court to allow the Superior Court to continue to handle the case, rather than taking it over, as it did May 13. Bogus, the Roger Williams law professor, also thinks the case should have been aired first at the lower court level, after which it could have been appealed to the high court.

If the case had been thrashed out first in Superior Court, Bogus says, McKenna might have been able to undertake "discovery" proceedings to learn whether Williams had discussed the case with his fellow justices before taking the military post. Any justice who had talked to him about that would have had to drop out of the case, the professor says.

Further, outsiders could interpret the Supreme Court justices’ move to take the case as a signal that the lower court judges might have come to a conclusion they wouldn’t like, he says. "It looks like an insecure court that was afraid of having to confront a potentially persuasive opinion that they didn’t agree with," Bogus says.

Court spokeswoman Koelsch disagrees, saying the high court acted properly in taking over the case because of the constitutional issues involved, and because, "The Supreme Court is the only court that can decide these issues."

Similarly, Roney, the lawyer and former state senator, says it was appropriate for the high court to take the case when it did. "I think there was the sense [that] this whole question, and the circus atmosphere around it, needed to be resolved quickly," Roney says.

Also, Koelsch discounts Bogus’s argument that, at the Superior Court level, McKenna could have learned more about conversations that Williams might have had with his fellow Supreme Court justices. She says the court previously indicated its members had only "minimal involvement" with the question of the federal panel. It’s up to each justice to decide whether she or he should not sit on a case because of personal conflicts, Koelsch says: "In this case, the four justices determined that they had the objective ability to hear the case."

IS PATRIOTISM RELEVANT?

Lawyer Snow thinks one of the strongest aspects of the high court’s ruling is its conclusion that the Rhode Island constitution’s dual office ban does not apply to military service — that federal requirements outweigh those of the states. "That constitutional provision could not have been intended to apply to military service, and if it was, it violates the US Constitution," Snow says. "Can you imagine a situation," he asks, "where a member of the General Assembly, for example, couldn’t serve in the reserves?"

The Supreme Court itself concluded its decision by praising Chief Justice Williams’s patriotism.

The justices wrote: "Finally, we wish to indicate our conviction that the chief justice accepted this position with the purest of motives and out of a patriotic sprit 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 of the Rhode Island Supreme Court."

More than one observer thinks that this comment could raise questions about the justices’ objectivity.

As professor Bogus puts it, "It’s too bad that they gratuitously applauded the chief justice’s motives, because his motives were legally irrelevant. They should have strived to do whatever they could to assure everyone that they ignored personal feelings and stuck to the law. They undercut that effort by saying that they thought their colleague acted from the best of motives."

But John Roney and former Chief Justice Weisberger say that Williams, in fact, has a substantial Army record. Williams served in Europe at the end of the Cold War and later in Vietnam, where he earned a Bronze Star.

Roney dismisses the notion that the comment calls into question the high court’s objectivity. "I think that’s nonsense," he says. "The guy is — Frank Williams is a decorated war hero." Roney says he’s comfortable with the statement, "maybe because I think it’s true."

Brian C. Jones can be reached at brijudy@cox.net.