When maverick lawyer Keven A. McKenna filed his lawsuit seeking to oust Supreme Court Chief Justice Frank J. Williams, more was at stake than just whether Williams would keep his seat.
Equally important was the question of how well the Supreme Court justices would handle the distasteful challenge of judging one of their own members. Would the court’s image be tarnished if it appeared that it was trying to protect its chief justice? Or would the court get high marks for handling the case impartially, strictly by-the-book?
"They flunked," is McKenna’s own and not particularly convincing assessment, given that the high court’s 44-page decision forcefully rejected both his right to bring the case, as well as his legal arguments. But if McKenna’s verdict can be dismissed as self-serving, some other lawyers and legal experts question aspects of the Supreme Court’s handling of the case.
"I think in terms of making the public at large comfortable that the court acted appropriately in this difficult situation, the process they followed was problematic," says Carl T. Bogus, a professor in the law school at Roger Williams University. Bogus, who has faulted the Rhode Island judiciary in the past for being oversensitive to criticism, says he’s not saying the court got the case wrong legally, but that the justices could have followed a process that might have "produced greater confidence in their ultimate determination." At one critical juncture, Bogus says, the court seemed "insecure" by not allowing lower court judges to rule on the case first. And at another point, he says, the justices appeared to let their personal feelings for Williams show.
Also critical is former state attorney general Arlene Violet, now a WHJJ-AM radio talk-show host, who believes that the high court went too far in ruling on core legal issues after deciding that McKenna didn’t have "standing" to file the lawsuit in the first place. The court should have stopped at that early stage, she says, rather than going into the larger issues McKenna had raised, which, she says, required more extensive oral and written debate than took place. Violet says by going into the merits, the high court effectively blocked similar challenges in the future. Handling the case that way, she says, "bruised" the system.
The most scathing criticism comes from a former Supreme Court justice, Robert G. Flanders Jr., who resigned in 2004 out of frustration of often being on the losing side of the court’s decisions. In interviews with the Phoenix and the Providence Journal, Flanders says the high court’s decision on the Williams’s case was wrong on every key element, and that the whole matter may have "jeopardized the court’s reputation." What’s more, Flanders condemns Williams himself for putting his Supreme Court colleagues in the uncomfortable position of having to review his case.
"To me, the real story here, the real issue, is not the legalities," Flanders says, "but the fact that in my judgment [Williams] should never have accepted this [military panel] job and put his colleagues in the untenable position of having to pass judgment on this, because, as I said, they were thrust into an absolutely no-win position."
ON THE OTHER HAND
This criticism is not universal, and the court has strong defenders, both in terms of how it handled the case, and the substance of its decision.
One of the most important supporters is former Chief Justice Joseph R. Weisberger, who is highly regarded by lawyers and judges and still participates in cases after having retiring in 2001 (see "Weisberger’s view"). Weisberger says the Supreme Court followed the law and its own precedents in taking over the case from Superior Court, and then ruling that McKenna should not have been allowed to bring the case. "I personally have every confidence in the Supreme Court as presently constituted," Weisberger says. "I think that they have performed and will continue to perform their duties as they see it in a very conscientious and lawful way."
Steven E. Snow, a lawyer for nearly 30 years, says the court was on solid ground in several key elements of its decision, and says criticism of the court is inevitable, given the nature of the case. "The fact is that it is their job to apply the law," Snow says. "And looking at it from my point of view — and I don’t have a political axe to grind in this fight — I think the bottom line is that they did the right thing."
Similarly, John M. Roney, a one-time state senator and former Rhode Island Bar Association president who is now the Senate’s parliamentarian, endorsed all of the high court’s actions. Roney says the court was right on the legal aspects, and correct also in how it handled the case, moving quickly to bring a halt to the uncertainties raised by McKenna’s challenge.
"We’ve lost two chief justices in the last 25 years," Roney says, referring to Thomas F. Fay and the late Joseph A. Bevilacqua, who resigned in the face of probes into their conduct in office. "The court needs stability. The judiciary needs stability. And this case lingering on, I think, would have had a destabilizing effect." Roney also thinks McKenna has been "calculating and insulting" in his references to Williams, "giving statements to the press about, you know, calling the chief justice ‘Frank’ or ‘Mr. Williams,’ and treating, I thought, this whole thing with an extraordinarily flip manner."
Flanders’s criticism of Chief Justice Williams, and Roney’s comments about McKenna underscore the unusual personal tone of the case.
The court’s own spokeswoman, Dyana Koelsch, saying the justices would not comment except through her, rebuked Flanders for commenting on the case, saying he would have had the option to dissent had he stayed on the court. "It is disappointing to the court that a former justice, without presiding over the case, reading the briefs, hearing oral arguments, or participating in deliberations, would provide an opinion on the matter," Koelsch says.
McKenna and Attorney General Patrick C. Lynch, whose office defended Williams, threw some elbows, filing papers about McKenna’s attempt to get a new hearing. McKenna accused the court of including "naked and empty fabrications" in its ruling, a portion of which he said was "self-serving." Lynch and Assistant Attorney General James R. Lee chided McKenna for writing a memorandum that was "inappropriate and insulting."
"Simply put," they said, McKenna "was wrong from the outset and he cannot accept that."
As if to signal halt to the slugfest, the court on June 16 rejected McKenna’s call for a new hearing with a terse order that contained not one word of comment.page 1 page 2 page 3
Issue Date: June 24 - 30, 2005
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