Supreme conflict (continued)
	General matters   Should the AGrepresent a judge who rules on his prosecutors’ cases? ONE OF THE issues in the legal case seeking to remove Frank J. Williams as chief justice of the Rhode Island Supreme Court has been the role of Attorney General Patrick C. Lynch. Lynch’s office is representing Williams, plus several other state officials, including Governor Donald L. Carcieri, named in the lawsuit filed by lawyer Keven A. McKenna. McKenna says the AG shouldn’t be defending Williams. McKenna contends the chief justice vacated his office last September by accepting appointment to a federal panel established to review cases of terror suspects — violating a state constitution provision against dual-office-holding. Further complicating the case, McKenna claims, is the attorney general’s assertion that only his office is entitled to challenge a state official’s right to hold office. McKenna argues that this creates a conflict for Lynch, because he’s representing a chief justice whose fate was in Lynch’s hands, while at the same time, his prosecutors argue cases before the chief justice. In an interview, McKenna suggested a hypothetical case in which a defendant’s lawyer has appealed to the Supreme Court. "The attorney general is on the other side saying: ‘Awe, this guy’s no good, send him to jail.’ And the person he’s making the argument to is Frank Williams, whose very tenure depends on him [Lynch] not issuing a writ," McKenna said. At one point in the case, a panel of three Superior Court judges was inclined to at least consider McKenna’s view. Superior Court Judge Alice Bridget Gibney said the panel planned to consider McKenna’s "motion to disqualify the attorney general from representing the chief justice." McKenna got some support from a Navy lawyer and a Georgetown Law School professor, Neal Katyal, who represents a terror detainee who theoretically could come before the appeals panel to which Williams was named. "The role of the attorney general, as defendant’s counsel, is fundamentally at odds with his role as an attorney acting ‘in the public’s interest,’ " the lawyers wrote in a Supreme Court brief. However, when the Supreme Court took over the case, it backed Lynch. "As a constitutional officer of this state, the attorney general may defend the right of a state official to retain his or her office," the high court wrote. "It is not the role of this court to examine the pleadings in a case to weigh and balance the role of the attorney general in his or her representation of state officials." Lynch, in an interview, says his lawyers carefully researched the issues, after Williams asked Lynch to have the attorney general’s office represent him. "We have a responsibility to represent him," he says, as the department does other state officials. Further, Lynch said the department researched the constitutional issues carefully before proceeding, and concluded Williams’s service on the federal panel does not conflict with the state constitution. For example, Lynch said the section of the constitution in question refers to ‘elected’ officials, but that it doesn’t apply to justices. Lynch said justices are appointed by the governor, from a list supplied by a nominating commission; the House and Senate then give their "advice and consent" to the proposed justice. Lynch said that’s a different process from when judges were elected by the General Assembly. He also said his office’s court documents have argued that Williams’s participation on a military panel is allowed by federal laws that protect those called to military service from forfeiting their civilian jobs. Lynch, meanwhile, criticized McKenna’s courtroom demeanor, noting as an example how during a May 11 Superior Court hearing, McKenna referred to former Supreme Court Justice Joseph R. Weisberger as "Joe." That was in "astonishingly bad taste," Lynch says. The court transcript shows that McKenna did use the name "Joe," but that he seemed to be trying to correct himself. McKenna had said that Chief Justice Williams sometimes asked retired justices to participate in cases: " . . . he likes to bring on Joe, Joseph — former Chief Justice Joseph Weisberger and Donald Shea . . . . " Asked about Lynch’s comment, McKenna acknowledged he does have an "informal" style, but shares Lynch’s concern for courtroom decorum. — B.C.J.

FRANK WILLIAMS, the imposing jurist, and Keven McKenna, the maverick lawyer, have more than a little in common.

Both are history buffs. Williams is obsessed with Abraham Lincoln. He’s amassed a personal library of 12,000 Lincoln books, 11 of which he has written or edited. His Supreme Court office is lined with statues of the Civil War president. And his speeches and conversation are salted with Lincoln philosophy and witticisms: "To me, Abraham Lincoln exemplified the foundations of our democracy: commitment, character, leadership and justice," Williams wrote when he was being considered for chief justice.

McKenna similarly peppers his everyday conversations and even his legal arguments with enthusiastic and sometimes distracting references to Rhode Island history. His oral presentation to a Superior Court panel on the Williams case was laced with historical figures and events: King Edward I; the late Rhode Island Judge John Doris, "a political power in Woonsocket"; Stephen Hopkins, "one of the signers of the Declaration of Independence"; Vincent A. Cianci Jr., the now-imprisoned former Providence mayor, and the burning of the colonial British ship Gaspee.

Both men have gold-plated resumes.

McKenna, 60, has undergraduate and law degrees from Georgetown University, and a master’s from Syracuse University. One of his first jobs was as a legislative assistant in President Lyndon B. Johnson’s administration. He was also an aide to former US Senator Claiborne Pell, an aide to former Governor Philip W. Noel, a state assistant attorney general, a three-term state representative, and a Providence municipal court judge.

Williams, 64, has undergraduate and law degrees from Boston University, and a master’s from Bryant College. He served in the Army from 1962 to 1967, earning a Bronze Star for Vietnam War duty. He served as Richmond town moderator and was town solicitor to a host of communities, including Barrington, South Kingstown, West Greenwich, Bristol, and Coventry. He was chairman of the Rhode Island Housing and Mortgage Finance Corporation, and served five years as a Superior Court judge before being nominated by former Republican Governor Lincoln C. Almond as chief justice.

Both Williams and McKenna have found the spotlight irresistible and occasionally infuriating as they’ve navigated their public roles.

McKenna has sought a slew of offices, running unsuccessfully for lieutenant governor, attorney general, and mayor of Providence, the last time in 2002, finishing fourth and injecting more color in the four-way Democratic primary won by David N. Cicilline.

McKenna is drawn to underdog causes. He represented depositors during the state banking scandal in the ’90s, independent taxi drivers, low-income residents fearful of mandatory car insurance, the fired executive director of the Lottery Commission, and his legal maneuvers include trying to block the 2004 voter referendum on a constitutional amendment that spelled out governmental "separation of powers."

McKenna is often in the news, and he can be thin-skinned with reporters. When his wife Marlene Marcello McKenna (the couple has since divorced) was losing a race for state treasurer in 1992, he shooed reporters from his wife’s election night hotel suite with these words, according to the Providence Journal: "Get the [expletive] out of here before I stone you. I don’t want any sluts from the media here."

McKenna has admiring supporters, including Irwin Becker, the onetime Journal reporter and community activist, who worked on McKenna’s lieutenant governor campaign in the 1970s. "The guy has an idea a week, and we haven’t had that many people like that in Rhode Island," says Becker. "He’s a gadfly, and you need somebody like that to keep people on their toes."

Williams, meanwhile, charted an unusual course as a judge, determined to open the judicial process to media and public scrutiny. When he was a Superior Court judge, he invited a Journal reporter to watch him from behind the scenes as he presided over the high-profile trial of an alleged rape on Block Island. As chief justice, he declared one of his major roles to be the court system’s ambassador to the public, speaking to school and community groups, and inviting ordinary citizens to watch trials. Williams established a busy court public relations arm, headed by one-time WJAR-TV reporter Dyana Koelsch.

Williams turned out to be unusually outspoken, writing newspaper commentaries, delivering state of the judiciary talks, and making hundreds of public appearances. When I wrote a profile of Williams earlier this year for Rhode Island Monthly magazine, he was more than happy to let me tag around with him for a full day.

Williams has also tangled with a fellow Republican, Governor Donald L. Carcieri, insisting that the judiciary, as an independent branch of government, submit its budget directly to the General Assembly, without being screened by Carcieri’s budget office. Most recently, Carcieri and Williams clashed over the chief justice’s proposal to give judges and court workers pay raises, even though the rest of the state’s workforce remained without pay hikes because of stalled union contract talks.

His active public approach won Williams praise and disapproval. Critics contended judges should be heard only in their pronouncements from the bench and not in newspaper op-eds or on talk radio. Supporters cheered his advocacy for the courts. Says one lawyer who approved of Williams’s drive for budget independence: "He should not have to call ‘Vinny’ at the Department of Administration to get the heat turned up in the courthouse."

But some say Williams has overreacted when contradicted.

In a 2004 law review article entitled "Culture of Quiescence," Roger Williams University professor Carl T. Bogus argued that Rhode Island judges, including Williams, were overly sensitive to criticism. Bogus charged that when he differed with Williams position in an op-ed piece, the chief justice responded with a sharp rebuttal, and sent a copy to his boss, the law school dean — a move, Bogus says, that seemed designed to "intimidate or punish" him.

And there was widespread criticism — most of it anonymous — when Williams launched a personal Web site last winter that celebrated his own patriotism and military service, showcased his hobbies as a rehabilitator of abused Doberman pinchers, and as a gourmet cook, and invited requests for public speaking appearances. After a story in the ProJo, Williams quickly took down the Web site.

Several legal system observers — none of whom would speak on the record — cited growing dissatisfaction with the chief justice’s involvement in what seemed to be one controversy after another.

"Williams is perceived as an embarrassment," says one normally outspoken State House operative who didn’t want to be identified. "Top-level people are beginning to think he is moving toward the edge."

THE RHODE ISLAND Constitution is one other subject that McKenna and Williams have in common. Both were delegates to the 1986 convention that shaped the current version; McKenna, in fact, was president of the forum.

Among the items approved was Article III, Section 6: " . . . 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."

Williams took the clause seriously enough to investigate last year whether it would impact him if he accepted his appointment by US Defense Secretary Donald H. Rumsfeld, to a military panel hearing appeals of terror war captives at the Guantanamo Bay. He told the Journal that state law allows military activity: "Serving in the military, especially part-time, is not divided loyalty. In fact, it’s a continuation of my judicial duties."

Bruce I. Kogan, acting dean of the law school at Roger Williams University, and John M. Roney, then-president of the Rhode Island Bar Association, told the Journal they agreed. That appeared to put the matter to rest until McKenna filed his lawsuit April 7.

"A child can read this provision and understand it," McKenna declared in an interview with the Phoenix. "You can’t be on the Yankees and the Red Sox at the same time."

As he outlined his case, McKenna paced constantly, never sitting behind a huge, battered desk in his office off of Valley Street, where the walls feature mementos, photos of Pell and former President Bill Clinton, his constitutional convention gavel, and a citation from the Providence Reform Coalition.

The constitutional clause is "self-executing," McKenna argued, so that the moment Williams accepted the federal post, he abandoned the state job.

"Williams’s problem is, legally he died on September 21, 2004," McKenna continued, referring to the date Williams was sworn in to the federal panel. "Williams lost his judicial robes on September 21, 2004, and no one wants to tell the emperor that he is without robes."

McKenna, who claimed to have spoken to 50 to 60 lawyers about the case, said he had not found one who supported Williams’s position. Actually, what lawyers think was hard to determine, since few said they felt were in a position to comment.

Jametta O. Alston, president of the Rhode Island Bar Association, said the group’s policy isn’t to comment on "active cases," and David A. Logan, the current dean at Roger Williams law school, says he had "no knowledge that is helpful in unraveling the very unusual case."

One legal expert did give his opinion, but on the condition his name not be used. "Certainly, there is an argument that it violates the constitution," this person said of William’s federal appointment. "I’m not saying it’s so clear that there’s no counter-argument," he said, adding that McKenna’s case was "not a wacky thing."