McKenna v. Williams, 2005-144-M.P.

Citation874 A.2d 217,226 RI 2005
Decision Date06 June 2005
Docket NumberNo. 2005-144-M.P.,2005-144-M.P.
PartiesKeven A. McKENNA et al. v. Frank J. WILLIAMS et al.
CourtUnited States State Supreme Court of Rhode Island

Keven A. McKenna, Esq., for Plaintiff.

James R. Lee, Esq., Providence, for Defendant.



Goldberg, Flaherty, and Robinson, Justices, with whom Suttell, Justice, concurs in part, dissents in part, and joins in the judgment.

This case came before the Supreme Court for oral argument on May 24, 2005, pursuant to an order directing the parties to appear and show cause why the issues raised in the petition for certiorari should not summarily be decided. After hearing the arguments of counsel for the parties and examining their memoranda, we are of the opinion that cause has not been shown and that the issues raised in this petition should be decided at this time.

The petitioners/defendants are Frank J. Williams, the Chief Justice of the Supreme Court, named in his "individual capacity" (Chief Justice Williams), Donald Carcieri, in his capacity as Governor of the State of Rhode Island (Governor Carcieri), Paul Tavares, in his capacity as the Treasurer of the State of Rhode Island (Treasurer Tavares), and Girard R. Visconti, as the Chair of the Rhode Island Judicial Nominating Commission (Visconti or, collectively, defendants). The defendants petitioned this Court for certiorari seeking review of a ruling by the Superior Court that the respondents/plaintiffs, Keven A. McKenna, an attorney appearing pro se, and Keven McKenna, P.C., a Rhode Island corporation authorized to practice law in this state (McKenna or plaintiffs), have standing, pursuant to the Uniform Declaratory Judgments Act, G.L.1956 chapter 30 of title 9, to seek a declaratory judgment to the effect that the office of Chief Justice of the Rhode Island Supreme Court is vacant.1 The complaint also requested a preliminary and permanent injunction restraining Chief Justice Williams from occupying that office; preliminary and permanent injunctions restraining Governor Carcieri "from not notifying the R.I. Judicial Nominating Commission of the vacancy in the Office of the Chief Justice" and restraining defendant Visconti "from not submitting eligible names of nominees to the office of the Chief Justice of the Supreme Court to the Governor of the State of Rhode Island;" and a preliminary and permanent injunction restraining Treasurer Tavares "from issuing salary checks to [Chief Justice] Williams." For the reasons set forth in this opinion, we grant the petition for certiorari, quash the decision of the Superior Court, and dismiss this case in its entirety.

In their complaint, plaintiffs contend that Chief Justice Williams has vacated his seat on this Court by virtue of his acceptance of an appointment as a member of a Military Review Panel (review panel).2 The plaintiffs allege that on September 21, 2004, when Chief Justice Williams "was sworn to a federal office as a [m]ember of [a] Military Review Panel of [the] U.S. Department of Defense," the office of Chief Justice was "automatically vacated," pursuant to the provisions of article 3, section 6, of the Rhode Island Constitution. Article 3, section 6, provides, in relevant part, as follows:

"Holding of offices under other governments — Senators and representatives not to hold other appointed offices under state government. — No person holding any office under the government of the United States, or of any other state or country, shall act as a general officer or as a member of the general assembly, unless at the time of taking such engagement that person shall have resigned the office under such government; 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; but this restriction shall not apply to any person appointed to take deposition or acknowledgement of deeds, or other legal instruments, by the authority of any other state or country." (Emphasis added.)

Additionally, plaintiffs aver that service on the review panel is incompatible with Chief Justice Williams's duties as a member of this Court. McKenna alleges that the Chief Justice "has breached his constitutional contract" with plaintiffs and the other citizens of this state by holding over in violation of article 3, section 6, after his office was vacated.

The plaintiffs contend they have standing to bring this claim because they "have suffered injury in fact as well as being subject to potential injury in fact by the continuing refusal of the [d]efendants to fulfill their statutory and constitutional duties." According to the complaint, plaintiffs "are entitled to have their appellate matters adjudicated only by duly authorized [j]ustices of [this Court]," and they further claim that the "failure to object to the continued seating of [Chief Justice] Williams may be an act of malpractice."

On April 26, 2005, the Presiding Justice of the Superior Court, pursuant to the provisions of G.L.1956 §§ 8-2-4 and 8-2-23, appointed three members of that court "to be a quorum for the purpose of presiding over the preliminary motions and trial" of this case. All defendants moved to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The defendants also sought a stay of all proceedings pending a determination by the Superior Court that plaintiffs have the requisite standing to prosecute this claim.

In their memorandum in support of the motion to dismiss, defendants argued that, even if the court accepted all of the factual averments in plaintiffs' complaint as true, drawing all reasonable inferences in plaintiffs' favor, the complaint fails to set forth sufficient facts that would entitle plaintiffs to any relief, and they further argue that plaintiffs lack standing to prosecute this claim.

Additionally, defendants urged that the complaint should be dismissed because Chief Justice Williams was not an elected official, and the provisions of article 3, section 6, prohibiting an officer from accepting any appointment "after election and engagement," are inapplicable to a member of this Court who was appointed by the Governor. It is undisputed that Chief Justice Williams was appointed to the Supreme Court by then Governor Almond, in accordance with the 1994 amendments to the state constitution, article 10, sections 4 and 5, which provide, in relevant part:

"Section 4. State court judges — Judicial selection. — The governor shall fill any vacancy of any justice of the Rhode Island Supreme Court by nominating, on the basis of merit, a person from a list submitted by an independent non-partisan judicial nominating commission, and by and with the advice and consent of the senate, and by and with the separate advice and consent of the house of representatives, shall appoint said person as a justice of the Rhode Island Supreme Court.
"Section 5. Tenure of supreme court justices. — Justices of the supreme court shall hold office during good behavior."

The defendants also argued that article 3, section 6, does not apply to appointments to military positions, because military service "has been a supreme power of the federal government" that was included in the exclusive powers granted to congress in Article I, section 8, of the United States Constitution, which encompasses the power to declare war, to raise and support armies, and to provide and maintain a navy. According to defendants, because a state constitutional provision that might inhibit military service by state officers would conflict with the power of congress to raise an army, the Supremacy Clause of the United States Constitution would render it invalid.3 The defendants argue that any inhibition against military service by state officials violates the Supremacy Clause.

The issue of the standing of plaintiffs to bring this action was raised and argued by defendants before the Superior Court and in their petition for certiorari. The defendants emphasized the long standing principle that standing is an "access barrier" to the courts. Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452 A.2d 931, 932 (R.I.1982). "Standing is an access barrier that calls for the assessment of one's credentials to bring suit." Id. An evaluation of standing should be made before reaching the merits of the claim — particularly, defendants contend, where, as here, "the issue of standing involves the constitutional powers of the general officers" and the subject matter jurisdiction of the Superior Court itself. According to defendants, no matter how it is styled or what plaintiffs aver in subsequent pleadings, "it is undisputed that this action challenges an official's right to hold office." Such a challenge is, at best, a petition in equity in the nature of quo warranto.

In a related vein, defendants have argued that the Superior Court is without subject matter jurisdiction over the issues raised in plaintiffs' complaint. According to defendants, a challenge to the Chief Justice's right to remain in office would, in essence, be an action in quo warranto, which may only be brought in Superior Court by the Attorney General on behalf of the people. See Whitehouse v. Moran, 808 A.2d 626, 628 (R.I.2002)

("[B]oth the writ of quo warranto and an information in the nature of quo warranto may be brought only by the Attorney General on behalf of the public to challenge the right of an individual to hold a public office."). A petition in equity in the nature of quo warranto may, in certain limited circumstances, be brought by a private individual — but only in the Supreme Court. Id. at 628-29.

On May 11, 2005, a hearing was held in the Superior Court on defendants' motion for a stay of proceedings and on the issue of plaintiffs' standing to bring this action. In...

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