Was justice served? (continued)

TERMS OF DEBATE

By accepting the federal post, Williams ran afoul of a state constitution provision designed to prevent top state officials from holding positions in other governmental jurisdictions, McKenna says. The section says: ". . . and 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."

To a layperson, the provision may seem to say just what McKenna said it does. But, as is the case with most legal controversies, the clause and its effect are anything but simple.

On June 6, about two weeks after McKenna and Assistant Attorney General Lee had argued the case before the four Supreme Court justices (Williams abstained from the case), the high court ruled against McKenna. The decision had several key points:

• McKenna, the court said, lacked standing to bring a case challenging the chief justice’s right to his office — saying that only the state’s attorney general has the authority to bring that kind of case.

• Even if McKenna had properly brought the case, the Supreme Court said he would have lost because the state, which is subordinate to the US government, cannot block someone from federal military service.

• Finally, the justices ruled that Williams, and the rest of the Supreme Court, aren’t subject to the state constitution’s ban on dual office holding that McKenna had cited.

It’s the last point that has drawn much of the criticism, in part because the justices ended up exempting themselves from a requirement that applies to other top officials. Although no one disputes that the Supreme Court has the final say on such issues, some legal experts questioned the court’s reasoning.

In fact, it was the issue of the dual office ban that brought the only dissent in the case, with Justice Paul A. Suttell disagreeing with the other three on that one point.

The majority — Maureen McKenna Goldberg (no relation to Keven McKenna), Francis X. Flaherty, and William P. Robinson 3rd — said that the word "elected" in the dual office clause means it doesn’t apply to Supreme Court justices, who now are "appointed." Prior to 1994, Supreme Court justices were elected by a vote of the Senate and the House meeting together in the so-called Grand Committee.

A constitutional amendment that year ushered in a "merit selection" system for justices, part of government reforms that had followed years of scandal, some of it involving former chief justice Fay. Under the new system, similar to the one used to select lower court judges, a nominating commission screens candidates and recommends finalists to the governor, who chooses one and sends the nominee along for confirmation by the Senate and House. "Ascribing customary meaning to its words, we are constrained to conclude that [the dual office clause] no longer applies to the justices of this Court because we are no longer elected to our positions," the high court ruled.

Suttell disagreed, although he supported other aspects of the case, which were enough to end the matter. "In my opinion, the word ‘election’ as it appears in that section should be viewed in its broader, more general sense that encompasses the ‘selection’ or ‘appointment’ of the explicitly enumerated officers," Suttell wrote. The justice has plenty of company on this point.

Some critics were particularly rankled by the majority’s assertion that it "presumed" the drafters of the 1994 amendment were aware of the effect that their change in the judicial selection provision would have on the dual office ban. "They are dead wrong about that," says H. Philip West Jr., director of Common Cause of Rhode Island, the government reform group that campaigned for the change. He says the dual office holding ban never was raised during the discussion.

Brown University professor Thomas F. Banchoff agrees. He volunteered with Common Cause on the selection process changes, and says: "I’m wracking my brains for any mention of this particular aspect . . . in my recollection, that question never came up."

Another close observer of the reform process was veteran lawyer Alan S. Flink, a former Rhode Island Bar Association president. "When that amendment was being considered, my only concern was changing the method of selecting Supreme Court judges," Flink says.

Flanders likewise doubts that a change in the selection process altered the dual-jobs prohibition. "It seemed to me a real stretch to say that the dual office holding ban, as it applied to judges, was repealed by implication," he says. "What rational reason," Flanders asks, "would there be for anybody to carve judges out from the general ban that applies to other such office holders?"