Supreme conflict (continued)

MCKENNA’S SUIT took an unusual trajectory through the court system.

He asked for a Superior Court order declaring the chief justice’s office vacant. It was assigned first to Judge Daniel A. Procaccini, whose wife, Kellilee, according to the Journal, is a part-time decisions analyst for the Supreme Court. Later, Superior Court Presiding Judge Joseph F. Rodgers Jr. transferred the case to a panel of three veteran judges: Robert D. Krause, Melanie W. Thunberg, and Alice Bridget Gibney. (Rodgers said Kellilee Procaccini’s court job wasn’t a factor.)

The three-judge panel was seen by some observers as an attempt to give the proceedings an aura of impartiality and evenhandedness.

The trio initially seemed open to some of McKenna’s arguments, including a willingness to consider whether the office of Attorney General Patrick C. Lynch should represent Williams.

McKenna had challenged the attorney general’s defense of Williams, saying he was no longer a state official requiring the AG’s representation, and also, arguing that defending Williams might be a conflict for the AG’s office, whose prosecutors appear before the high court.

Assistant Attorney General James R. Lee, in turn, questioned McKenna’s ability to bring the case, contending that only the attorney general could question the right of an official such as the chief justice to stay in office through a so-called petition of "Quo Warranto," which is Latin for "by what warrant," or authority, does someone hold office. McKenna maintained he was in a position legally to challenge Williams, because he owed a duty to his own legal clients not to argue cases before the "non-judge" that Williams had become.

During a May 11 hearing, things were definitely going McKenna’s way. The three Superior Court judges ruled against Lee’s request for a temporary halt to the proceedings and said instead that McKenna had the right to remain in the case. Moreover, Gibney said later that the three judges planned to consider McKenna’s "motion to disqualify the attorney general from representing the chief justice."

But two days later, the case took a sharp turn.

Responding to a request from Lee, the Supreme Court took over the case. The four Supreme Court justices, absent Williams, hinted that the question of whether McKenna had the authority to bring the case would be at the top of its list — since if McKenna were to be disqualified, the case might end there.

McKenna got a boost when Georgetown Law professor Neal Katyal and a Navy lawyer representing one of the Guantanamo detainees, a suspected driver for Osama bin Laden, filed a "friend of the court" brief. The pair, interested in members of the military appeal panel like Williams, largely backed McKenna’s view of the case, including the key argument that Williams had violated the state’s dual-office-holding clause.

Later, the Supreme Court issued more rulings, most against McKenna, allowing the attorney general to stay in the case, and refusing Katyal’s request to appear before the court, but accepting his written brief.

This led to somewhat grim half-hour hearing May 24, in which the four justices rarely interrupted — and therefore gave few clues as to their thinking — as Lee and McKenna presented pared-down arguments in a standing-room-only court chambers. Lee urged the court "not to create a startling exception" to a legal tradition that limited removal attempts to the attorney general, and noted that the AG’s office had "diligently" investigated the question. "No matter how this action is titled, it does seek to remove an official from office and that’s a power, on behalf of the public, reserved exclusively to the attorney general," Lee said.

McKenna again maintained he had standing in the case because he had to protect his law clients’ interests, and he urged the justices to return the matter to Superior Court, saying the Supreme Court in the past has said it prefers to consider cases that have been fully aired in lower courts. By sending the case back to Superior Court, "the integrity of the court will be respected, and I think everybody will think we handled it properly, we handled a difficult and sensitive question," McKenna said.

As the case was pending, it was difficult to get clear answers to the many questions the lawsuit posed. Few legal authorities were willing to comment.

Flink, with 53 years of experience as a lawyer, noted it took an unusual person just to bring a case against the head of the court system. "You’d have to feel very independent," Flink said. "It’s not for the timid. If you had any timidity in your bones, you’d go the other way in a hurry."

One expert, who asked to be anonymous, was asked what the worst-case result would be for the court system if McKenna were to win.

This person thought the damage might be limited to recent cases decided by a three-to-two vote, in which Williams was on the prevailing side. A dissatisfied lawyer might argue that discounting Williams’s vote would result in a two-to-two tie, allowing a lower court’s judgment to remain.

But this expert, as did several others, thought the more important impact might be a blow to the public trust in the court system, if it looked like the Supreme Court was acting unfairly. "People on the street were appalled that they took the case," this expert said of the Supreme Court’s transfer of the case from Superior Court. "They might be right on the law, but this looks like a set-up."

Attorney General Lynch did agree to be interviewed on the record. He said maintaining public faith in the judicial process was crucial, and he thought to ensure its decision was carefully crafted, the high court might take a month-and-a-half to rule.

"That’s why they won’t come back so quickly," Lynch predicted. "Because then the accusation can fly that, you know: ‘Good lord, they didn’t even think about what they argued today; they didn’t even do the research.’ And I would expect nothing other than [for them] to be conscientious in their deliberations and thoughtful in their renderings."

McKENNA SEEMED DETERMINED to stay in the case no matter the outcome. He said losing a first round would mean only looking for other tactics.

Perhaps he could bring a different kind of a case; he might challenge Williams on a state canon of judicial ethics ban on judges holding two jobs; he might back an attorney general candidate with a different view of the case than Lynch’s; and there was always impeachment.

"I’m not going away," McKenna declared, saying that age 60, "I feel great — unfortunately for Williams."

Still, McKenna claimed, none of this was personal. In fact, going back to their shared years at the constitutional convention, McKenna said he and Williams never exchanged an uncivil word.

The current case aside, McKenna portrayed himself as a fan of Williams. He said Williams was right in fighting for budget independence; he praised Williams’s "excellent analytical mind"; Williams had been "an outstanding" Superior Court judge; and as chief justice, his written legal decisions were "well-reasoned."

Further, McKenna praised Williams’s oversight of the court system, especially his championing of a new Kent County courthouse. In fact, said McKenna, when the new building opens, it should be named "The Frank J. Williams Courthouse."

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