Frank Williams Sucks .com
Memo in Support of
Preliminary Injunction
THE STATE OF RHODE ISLAND
AND PROVIDENCE PLANTATIONS
Providence
County
Superior Court
____________________________________
Keven A. McKenna,
P.C.
:
Keven A.
McKenna
:
Plaintiffs
:
v.
:
C.A. No. 05- ________________
Frank Williams, in his individual
capacity
:
Donald Carcieri, in his capacity as Governor:
Gerald Visconti, in his capacity as Chair :
Of the Rhode Island Judicial
Nominating
:
Commission, and Paul Tavares, in
his :
capacity as R.I. State
Treasurer.
:
:
Defendants
:
____________________________________:
PLAINTIFF'S INITIAL MEMORANDUM IN SUPPORT OF PRELIMINARY, PERMANENT,
AND MANDATORY INJUNCTIONS.
I.
Introduction:
The
question before this Honorable Court is whether or not the Office of
Chief Justice of the R.I. Supreme Court is vacant. See R.I. State
Constitution, Article III, §6. "if any *** judge shall,
after election and engagement, accept any appointment under any other
government, the office under this shall be immediately vacated."
On September 21, 2004, former Chief Justice Frank Williams was sworn to
a federal office as a Member of Military Review Panel of U.S.
Department of Defense, pursuant to designated authorities President of
the United States. See Exhibits __, ___/.
The Office of Chief Justice of R.I. Supreme Court was then
automatically vacated. Article III, §6
This Honorable Court now has jurisdiction to hear this matter, pursuant
to its authority under the provisions of the Uniform Declaratory
Judgment Act [1], and pursuant to R.I. G.L. §8-2-8 [2], and
R.I.G.L. §8-2-13, Equity Actions and Related Matters. [3]
The Plaintiffs are Keven A. McKenna, P.C., a legal services
corporation, and Keven A. McKenna, a licensed attorney, #662, which
make appearances before the Members of the R.I. Supreme Court and whose
conduct is regulated by member of the R.I. Supreme Court.
Plaintiffs question (i) whether or not Frank Williams is sitting on the
R.I. Supreme Court in his status as an individual or as Chief Justice
of the Supreme Court, (ii) whether or not the Governor should fulfill
his statutory and constitutional obligation to begin the replacement
process; (iii) whether or not the Judicial Nominating Commission should
fulfill its constitutional and statutory duties to provide to the
Governor names to present to the General Assembly to fill a Supreme
Court vacancy, and (iv) whether or not the Treasurer should be paying
Frank Williams for a position that he does not hold.
The Defendants are Frank Williams, in his individual capacity; Governor
Donald Carcieri, in his constitutional and statutory capacity, the R.I.
Judicial Nominating Commission, by and through its chair, Gerald
Visconti, in its constitutional and statutory capacities, and R.I.
State Treasurer, Paul Tavares, in constitutional and statutory
capacity.
This matter contains no questions of fact and only questions of the
application of the provisions of the R.I. State Constitution and of
certain R.I. statutes.
This controversy is ripe for determination. [4]
II. Plaintiffs Have Clear Standing Under
R.I. G.L. §9-30, R.I.G.L. 9-30-2, and R.I.G.L. §9-30-12 To
Ask This Court To Decide the Constitutional Questions.
Plaintiff, Keven A. McKenna is a citizen of the State of Rhode Island.
Defendant Frank William is a citizen of the State of Rhode Island. The
R.I. Constitution is a contract of the highest status between the
people of the State of Rhode Island and its government. Through the
Constitution, the people have delegated certain of their rights and
privileges to the Government of Rhode Island in exchange for the
government providing certain legislative, judicial and executive
services to the people. Keven A. McKenna avers that Frank Williams has
breached that constitutional contract, to wit, Article III section 6,
by remaining in the Office of Chief Justice of the R.I. Supreme Court
[5]. Williams having taken a public oath to uphold the provisions of
the R.I. Constitution, which includes Article III, §6, has a
constitutional duty to leave the position from which he was
automatically vacated on September 21, 2004.
The Office of Chief Justice was vacated on September 21, 2004.
Plaintiffs have pending and will have pending cases before the members
of the R.I. Supreme Court. Is it malpractice not to object to a non
justice reviewing cases? Would the failure to object subject Plaintiffs
to the obligations of the Professional Code of Ethics for Attorneys?
Has Frank Williams breached his contractual duty under the State
Constitution to the citizens of Rhode Island, including his duty to
Citizen Keven A. McKenna, to enforce the provisions of the R.I. State
Constitution by not vacating his office on September 21, 2004 [6]?
III.
Core Question:
There is one core question of presented to this Honorable Superior
Court for Declaratory Judgment, to wit,
Did the acceptance by Frank Williams on September 21, 2004 of the
Federal Office of Member of the Military Review Panel of the U.S.
Department of Defense, a position created by the President of the
United States, and then the title of Major General, an appointment of
the President made through his designee, Secretary of Defense Donald
Rumsfeld, automatically remove Frank Williams, as an individual, from
holding the R.I. Constitutional Office of Chief Justice of the R.I.
Supreme Court by automatic operation of Article III, §6 of the
R.I. State Constitution?
The Plaintiffs claim that the answer to that question is in the
affirmative.
Plaintiffs aver that they have standing under the R.I.
Declaratory Judgment Act, R.I. G.L. §9-30-1, et al, to submit this
core question and ancillary questions to this Honorable Court to
determine their legal relations and their status and obligations when
appearing before the Rhode Island Supreme Court; and, to otherwise
demand auxiliary relief in the form of injunctive relief against the
other Defendants requiring the execution of their constitutional and
statutory duties to begin the processes to fill the vacancy in the
Office of Chief Justice of the Supreme Court of the State of Rhode
Island.
IV.
The Vacancy Issue Impacts the Practice of Law and Administration of
Justice.
The Plaintiffs have clients who have cases pending in the R.I. Supreme
Court and pending in the R.I. Superior Court, R.I. Family Court, the
R.I. Family Court, the Administrative Adjudication Tribunal, and in
various probate courts, whose questions of law may be subsequently
determined by the members of the R.I. Supreme Court.
According to the provisions of Article III, §6, the position of
Chief Justice of the R.I. Supreme Court, was automatically vacated by
Frank Williams on September 21, 2004 by his acceptance of the position
of a member of the Military Review Panel of the United Stated
Department of Defense, which is position which exercises the sovereign
power of the United States. In Re to the Governor, 83 R.I. 370, 382
(1955) [7].
Pursuant Article X, §4 of the R.I. State Constitution [8], the
Governor of the State of Rhode Island, is mandated to appoint a
replacement to a vacancy on the R.I. Supreme Court from a list of names
presented by R.I. Judicial Selection Panel. Governor Carcieri has
refused to notify the R.I. Judicial Selection Panel. State law requires
the Governor to notify the R.I. Judicial Nominating Commission of a
vacancy of the Supreme Court. [9] He has refused to do so.
Defendant, the R.I. Judicial Nominating Commission, has refused to
provide names to the Governor to fill the vacancy in the position of
Chief Justice of the R.I. Supreme Court despite the existence of the
highly publicized vacancy on September 24, 2004.
Defendant State Treasurer, Paul Tavares, has continued illegally to pay
a salary to Frank Williams as Chief Justice since Williams was
automatically removed from the position by operation of Article III,
§6. Plaintiff McKenna is a taxpayer. He is entitled to know
whether or not such payment is legal or not. Compare Kass v. Retirement
Board, 567 A.2d 358 (R.I. 1989).Fn. 1; [10] Davis v. Hawksley, 119
R.I.453, 379 A.2nd 153, 379 A.2nd 922 (1977).
V.
The Question of Vacancy is A Question of Substantial Public Interest
which is subject to Repetition.
Notwithstanding the issue of whether or not the Plaintiffs have
standing and presently have or could have an "injury in fact" if this
Court did not act, the substantial "public interest" in these response
to pending declaratory questions require this Honorable Court Honorable
Court to decide forthwith these matters. [11] These are questions
subject to multiple "repetition" within the judicial process. [12]
There are approximately 6,500 attorneys who can bring cases before the
R.I. Supreme Court involving the same constitutional and ethical
dilemena facing the Plaintiffs. These questions need to be
resolved to preserve the integrity of the judicial process; and to
demonstrate to the public that the Judicial Branch can solve its own
problems. The Public also has a strong interest in resolving the
uncertainty about the office of Chief Justice. DeLuca v. Rhode Island
State Board of Elections, 119 R.I. 59, 63, 376 A.2d 326, 328
(1977),"public policy requires that there be no uncertainty as to who
is or who is not a public officer *"
VI.
The Continued Seating of An Unauthorized Chief Justice Impacts Case
Outcomes, the Employment of Court Personnel and Adequate Nature of
Judicial Remedies.
An equal split of the Justices of the Rhode Island Supreme Court due to
the failure of Defendants Carcieri and of the failure of the Judicial
Nominating Commission to fill the vacancy of the Chief Justice of the
R.I. Supreme Court, would deny the Plaintiffs of their Constitutional
right to access to judicial remedies as guaranteed by the provisions of
Article I, §5 [13] of the Rhode Island State Constitution and as
guaranteed by the due process provisions of Article I, §2 of the
R.I. State Constitution [14]. Such rights include a right to a
full five member Court of duly authorized judges.
The Rhode Island Supreme Court is established in accordance with
Article X, §2 of the R.I. Constitution (1986, as amended) [15],
which provides that "A majority of its judges shall always be necessary
to constitute a quorum."
Pursuant to Article III, §6 [16] of the Rhode Island State
Constitution (1986, as amended), if any Supreme Court Judge "shall
after election and engagement, accept any appointment under any other
government, the office under this shall be immediately vacated."
The quantity of evidence supporting the existence of the vacancy is
beyond any reasonable doubt. Article III, 6 is a self-executing
provision of the R.I. State Constitution.
Rhode Island state law requires that the Supreme Court consist of one
(1) chief justice and four (4) associate justices. R.I.G.L. §
8-1-1; and that only the Chief Judge administer the Court system.
R.I.G.L. § 8-15-4(a). The position of a Chief Justice is vacant
and can only be filled by a nominee approved by the General Assembly,
not by a retired chief justice or a justice who has resigned.
State law simply does not provide for the temporary replacement
of a justice whose office is vacated by any other process than by
gubernatorial nomination from a list of names submitted by the State
Judicial Nominating Commission, and a subsequent approval by the
members of the R.I. General Assembly.
If a justice had retired or resigned then statute provides that
another retired or resigned justice of a Supreme Court Justice can then
replace the Justice who has resigned or retired. [17] No provision in
statute is made for the temporary replacement of a justice who is
removed automatically by the provisions of the R.I. Constitution. Thus,
there remains public "doubt" and "insecurity" as to the validity of
Supreme Court decisions entered since September 21, 2004, especially
those which involve majority decisions of one vote.
VII.
The "Legal Relations" of Attorneys are Impacted by the Disputed Vacancy.
The Rhode Island Supreme Court, by a majority vote of three (3)
justices of the five justices, has the plenary power to regulate
admission to the practice of law [18] and the conduct of attorneys,
such as the conduct of the Plaintiff, Attorney Keven A. McKenna. Rhode
Island Bar Ass'n v. Automobile Serv. Ass'n, 179 A. 139, 143 (R.I. 1935)
[19]. It regulates professional corporations, such as that of the
Plaintiff, Keven A. McKenna, P.C., which conduct the practice of law in
the corporate form. See Matter Of R.I. Bar Association, 106 R.I. 752,
263 A.2d 692 (1970).
The members of the R.I. Supreme Court periodically review disciplinary
actions against attorneys and judges, In Re: Lallo, 768 A.2d 921, 923
(R.I. 2001) [20], and publish regulations limiting the practice
of law Berberian V. Kane, 425 A.2d 527 (R.I. 1981) [21].
The R.I. Supreme Court also reviews Rule 11 Sanctions by lower Courts
against attorneys for filing frivolous pleadings. Heal V. Heal, 762
A.2d 463,467 (R.I. 2000). Plaintiffs have no disciplinary matters
before the Supreme Court, but if they did they would not expect to be
judged by a person who is not a member of the Supreme Court. However,
the Plaintiffs have two pending matters before the Supreme Court, and
they do not believe that clients should be subject to the appellate
adjudication of a non judge.
A Supreme Court with only four (4) justices may be equally split and
the Plaintiffs and their clients could be thus denied a final
adjudication of the issues which they present for review to the R.I.
Supreme Court.
VIII. The Failure to Object
to the Vacancy May Be Malpractice.
Plaintiffs have a duty to their clients to advocate for the enforcement
of their legal rights. Plaintiffs' clients have a right to have only
duly authorized judges decide their cases.
If a
person, who is not a judge, appears on a judicial forum considering the
legal merits of the claims of the clients of the Plaintiffs, Plaintiffs
have a duty of care toward their clients on matters of law to object to
the judicial involvement of non judge in the adjudication of their
cases; otherwise the neglect to do so may be malpractice.
If a lawyer does not make an objection to appear to the involvement of
non judicial member in the adjudication of the client's case, the
Plaintiffs could otherwise be subject to a claim of legal malpractice
[22].
Should not a lawyer of "ordinary skill and knowledge" [23] be familiar
with the provisions of the R.I. State Constitution? A lawyer with
knowledge that a R.I. Judge has, by his acceptance of a federal
position, had his R.I. Judicial position automatically vacated has
clear duty to his clients to object to the former judge's continued use
of former judicial powers in the clients' case.
Imagine if a client of the Plaintiffs were involved in a three (3) -two
(2) decision against a client, and Frank Williams was the deciding
vote, and, the client's lawyers had knowledge that Article III. §6
of the R.I. State Constitution had automatically removed Chief Justice
Williams on September 24, 2005 from his position when he became engaged
as federal officer holder. That client would then have a viable
action of legal malpractice against the lawyer. "But for" the failure
of an attorney to act by objecting to Williams' presence, the client
would not have suffered the damages of a loss. [24] An attorney
has an actionable duty of care toward his clients to object to the
participation of Frank Williams in Supreme Court adjudicatory process.
Would not a client expect a lawyer to have knowledge of whether
or not a person adjudicating a client's claim is a constitutionally
authorized judge or not? Would not the failure of an attorney to be
familiar with the provisions of the R.I. State Constitution be
negligence per se? Would not an attorney be violating his duty of care
toward his client if he did not object to a non judge adjudicating the
claims of his client? Vallinoto v. DiSandro, 688 A.2d 830, 834 (R.I.
1997) [25].
Would not the failure of an attorney to know whether or not an
adjudicator is a duly qualified judge in an appellate matter subject
the attorney to a complaint for violating Rule 1.1 [26] of the Article
V of the Supreme Court's Rules of Professional Conduct on competent
representation?
Thus, the Plaintiffs "legal relations" require the Plaintiffs to ask
this Honorable Court under the provisions of the Uniform Declaratory
Judgment Act, R.I. G.L. §9-30-1 Scope; R.I.G.L. 9-30-2 Power to
construe; R.I.G.L. §9-30-12 Construction, to determine the
"status" of judicial tenure of Frank Williams as a question of law.
If it is a constitutional mandate that requires no interpretation, then
it is in interest of the Governor that he knows whether or not he must
notify the R.I. Judicial Nominating Commission of the vacancy. [27] It
is in the interest of the R.I. Judicial Nomination Commission as to
whether or not it must begin its process for selecting names for the
Governor to submit a name for the position of Chief Justice to the
General Assembly for approval or rejection. It is in the interest of
the State Treasurer to know whether or not he should continue to pay
Frank Williams a salary as Chief Justice if the Article III, §6
has automatically removed Williams from that position on September 24,
2004.
Frank Williams also has self-interest in having the question of the
length of his tenure of as Chief Justice resolved. Should he not want
to know whether or not he can render decisions as a Chief Justice?
Should he not want to know if he is still the administrative head of
the Judicial Branch able to hire and fire employees? [28]
Albeit Williams' self serving defense in the Providence Journal
on January 31, 2004, Exhibit 6, and the underlying question is not one
of William's self proclaimed patriotic intentions, it is a pure
constitutional question of law that must be resolved by an impartial
Court.
IX.
The Provisions of the U.S. Constitution, of U.S. Code of Federal
Regulations, The Nine (9) Instructions of the Secretary of U.S.
Department of Defense on Terrorism Tribunals, The Press Releases of
U.S. Department of Defense, and the Transcript and Photograph of the
September 21, 2004 Swearing of Frank Williams As A Member of the
Military Review Panel Demonstrate Unequivocally that Frank Williams
Holds An Office of the United Government.
On September 21, 2004, the U.S. Secretary of Defense, Donald Rumsfeld,
pursuant to the authority invested him by the President of the United
States, had a Federal Court Judge swear Frank Williams as Member of
Military Review Panel of the U.S. Department of Defense. Rumsfeld
indicated at that time, pursuant to the authority of President of the
United States, that he would at a later time commission Frank Williams
as a Major General in the U.S. Army.
Federal law, in very specific terms, defines a Member of the Military
Review Panel of the U.S. Department of Defense as an Officer of the
United States Government,
[29] whether or not the Member is a Major General or not.
"4. B. Members. The Secretary of Defense will designate three or more
Military Officers, including civilians commissioned pursuant to
reference (e) [30], as eligible to serve on a Review Panel. With regard
to the internal operations of a Review Panel, civilians appointed as
officers shall have the same authority, duties, and responsibilities as
any other member of the armed forces serving on the Review Panel of the
armed forces serving on the Review Panel. Such officers whose total
service under reference (e) and otherwise to the United States is not
expected to exceed 130 days during any 365 consecutive days shall be
special Government Employees for the purpose of 18 U.S.C. §§
202 [31], 203 [32], 205, 207, 208 and 209 [33]. Section 973(b) [34] of
Title 10, U.S. Code does not apply to such officers. At least one of
each Review Panel shall have experience as a judge." (Emphasis Added.)
U.S. Department of Defense Military Commission Instruction No. 9,
§4, December 26, 2003. Compare 32 C.F.R. Part 9.7. (h) (4) (July
1, 2003.).
X.
A Member of the Military Review Panel is an Officer of the United
States Government.
The references to terms "Officers" and Officers of the United States"
are similar in the U.S Constitution as in the R.I. Constitution. Note
the federal references in Federal Constitution to creation of "offices"
and the roles to be played by "officers" of the United States. [35],
[36], [37], [38].
For example, no Member of Congress can hold an "office under the Untied
States. For example, Congress permits under, U.S. Const. Art. II,
§ 2, cl. 2, the "Appointment of such inferior Officers, as they
think proper, in the President alone, ***. For example, Article II,
§3 provides that the President "shall take Care that the Laws be
faithfully executed, and shall Commission all the Officers of the
United States". Williams is such an "inferior officer" mentioned in
Article II of the U.S. Constitution and is a judge under the provisions
of the second paragraph of Article III, § 6 who is ban from
holding Federal office..
The historical use and context of the words, "any office under
the government of the United States" in paragraph one and "accept any
appointment under any other government" in paragraph 2 of Article III
§ 6 of the R.I. State Constitution refer to any office of the
United States; and the "other government" includes the United States of
America.
XI.
The Office of Member of Military Review Shares in the Exercise of the
President's Sovereign War Powers.
The two (2) Offices of a Commissioned Major General [39] and a
Presidential Designated Member of the Military Review Panel of the U.S.
Department of Defense are both federal offices exercising the sovereign
war powers [40] of the President of United States. Albeit, those
positions may be part-time, they are nevertheless full time
responsibilities to the President of the United State.
The sovereign powers of a member of the Military Review Panel are
greater than those of the position of a part time United Nations
Representative of the President of the United States, a federal
position which Governor Dennis Roberts was advised not to take unless
he desired to vacate his Gubernatorial Office. . In Re Opinion to the
Governor (Governor) Serving As UN Representative), 83 R.I. 370, 382,
(R.I. 1955). Compare In Re: Sundlun, (COMSTAT) 585 A.2d 11885, 1187 RI
1991). (Private Federally Chartered Corporation.).
XII. The Orders Creating the Office of Member of the Military Review
Panel are Derived From the September 11, 2001 War Powers Resolutions
and Statutes.
On
November 13, 2001, President George Bush issued a Military Order
regarding the Detention, Treatment, and Trial of Certain Non Citizens
in the War against Terrorism. Exhibit 1, Attached herein. That
Presidential Military Order contained, inter alia, for the conduct of
military trials for war crime violations, See 32 CFR §11.6,
Exhibit 2 Attached Herein, by military commissions created by the U.S.
Department of Defense. That Military Order provides at Section 4 (c) 8
that the record of trial of non citizen combatants for war crimes,
including any record of the trial, convictions and sentence be
submitted to the President or to the Secretary of Defense, as his
designee, for review and final decision. At later date, the Secretary
of Defense provided for the creation of a military panel of review in
the Department of Defense to fulfill such designated Presidential
function. A member of the Military Panel of Review reports to the
President's designee, Secretary of Defense, Donald Rumsfeld. 32 C.F.R.
§ 15.3 Policies and Procedures. [41]
The Military Orders creating the position of Member of the Military
Review Panel were derived from four (4) basic sources: (i) Public
Law 107-40, 115 Stat. 224, Emergency Congressional War Powers of the
President, including Article 2, §2. [42],
(ii) 10 U.S.C. § 603. Appointments in time of war or
national emergency, and 10 U.S.C. §821, §836;
(iii) The Code of Federal Regulations, including, [43] 68 FR
39374, 39378, 39379, (July 1, 2003), 68 FR 9374, 39378, 39379, (July 1,
2003). 68 F.R. 39374, 39378,39379; 32 C.F.R. Part
9.7.(h)(1)(2)(3)(4)(5)(6);(July 1, 2003.); and,
(iv) U.S. Department of Defense Military Commission Instructions, in
particular, Instruction No. 9, §4, December 26, 2003.
XIII. A Member of the
Military Review Panel is A Federal Administrative Appellate Judge of
War Crimes.
The Members of the Military Panel of U.S. Department of Defense review
decisions of lower Military Tribunals of the U.S. Department of Defense
involving certain alleged enemy combatants in Iraq and Afghanistan
being held in Guanatamo, Cuba. See 68 F.R. 39374, 39378,39379,
Procedures for Trials by Military Commissions of Certain
Non-United States Citizens in the War Against Terrorism; (66 FR 57833);
32 C.F.R.§ 9.6.(h)(1)(2)(3)(4)(5)(6);(July 1, 2003.) [44]U.S.
Department of Defense Military Commission Instruction No. 9, §4,
December 26, 2003.
The Members review the decisions of lower tribunal involving questions
(i) of the legal status of the alleged combatants, whether or not they
have committed war crimes were committed , 32 C.F.R.§ 11.6, and
appropriateness of the sentences imposed, 32 C.F.R.9.6(g)
Sentence, including death penalty death [45].
XIV. Decisions of Members of
Military Review Panel Could Be Reviewed by U.S. Supreme Court And Be
Judicially Cognizable at U.N. International War Crimes Tribunal At the
Hague.
Although the President claims that his war tribunal system is
independent of any American Judicial, Federal or State, or of any
International Judicial Review, [46] other systems of justice may
not agree; and the problems emanating from those disagreements might
present some interesting problems if Chief Justice Williams insists on
maintaining his dual offices. The war crimes listed in 32 C.F.R.§
11.6, are also by their nature violations of state law, if committed
within the jurisdiction of any state, are subject to prosecution in a
state court, and subject to review by any State's Supreme Court.
The
enumerated war crimes listed 32 C.F.R.§ 11.6 are also within the
jurisdiction of the United Nations War Crimes Tribunal at the Hague in
Belgium, although the President has refused to recognize the
International War Crimes Tribunal, and although the he Congress has
refused ratified that treaty. Nevertheless, the home country of alleged
war criminal, which has signed the Rome Treaty creating the War Crimes
Tribunal, can nevertheless demand that The Hague take jurisdiction of
the same war criminal. Note that former President William Clinton had
signed the War Crimes Treaty recommended Senate approval,
but, the Republican controlled Senate has refused to consider the
Treaty apparently as part of announced Republican dogma. United
States is now in the company of North Korea and Libya, two well known
anti democratic states, as one of three nations who have not signed
that treaty.
Why
are those facts important to the question of dual federal and state
office holding? Consider this hypothetical but realistic case. This is
the type of problem, which bans on dual judicial office holding were
designed to prevent.
A
Jordanian with a visa, residing in Providence, Rhode Island, kills a
security guard at Fleet Bank Building, in an alleged botched attempt to
blow up the building in reprisal to U.S. bombing in Baghdad. Cries of
terrorism arise. Rhode Island does not have a death penalty. A
violation of the Defense Department's defined war crimes for murder is
death. A violation of war crime, such as murder by a Jordanian, is
triable at The Hague. The Hague has no death penalty.
Does
Chief Justice Williams of the R.I. Supreme Court decide that Rhode
Island has jurisdiction?
Does
Member, Frank Williams, of the Department of Defense's Military Review
Panel, decide that his Military Panel has jurisdiction?
The
problem now gets better. Suppose both cases are appealed and find their
way to the U.S. Supreme Court, which now considers International law,
holdings. Suppose Jordan asks The Hague to review the question of Rhode
Island jurisdiction over its citizen.
As a Chief Justice of the R.I. State Supreme Court, Williams' State
Court decisions are already subject to the review by the U.S. Supreme
Court if there is as federal question involved. 28 U.S.C. Sec. 1331.
As Member of Military Review Panel, Williams' decisions are also
subject to review by the federal courts for U.S. Constitutional
violations, through Habeas Corpus proceedings, challenging Due Process
violations by Executive Branch. See Rasul v. Bush, ___ U.S. ___,
124 S. Ct. 2686 (2004) [47]; In Re Guantanamo Detainee Cases, 1, 35
(U.S D.C. Dist. Of Col. 2005) [48] ; Hamdi v. Rumsfeld,
__U.S.__, ___ S.Ct. __No. 03-6696 (2004) (Petition for a writ of habeas
corpus under 28 U.S.C. Sec. 2241);Padilla v. Hanft, (U.S. D.C. , S.C.
Southern Division , 2005). Compare Johnson v. Eisentrager, 339 U.S. 763
(1950), where there was no presence on American controlled ground of
the alleged combatant.
In our example, what law should be applied? The law of the forum of the
alleged Crime-Rhode Island? International law as defined by U.N.
War Crimes Court? Or, Presidential defined war crimes? That
hypothetical imbroglio is exactly the type of conflict of loyalties
which Article III, 6 ban was designed to prevent when first written in
1842, and re-approved in 1986.
XV. Nothing
in Rhode Island's History Changes the Interpretation of Meaning of the
Self-Executing Ban on Dual Office Holding.
As former Chief Justice Williams has often said in his many previous
written opinions on constitutional construction, if the meaning of
framers of the State Constitution is clear and it needs no further
construction [49]. Here the meaning is clear and the phraseology is
consistent with the history of the times. As a former delegate Frank
Williams well knows, when Article III, §6 was re-approved in 1986,
the voters were "distrustful of appointed officials and state
government." In Re Advisory Opinion to Governor, 612 A.2d 1, 3, 8
(R.I. 1992) [50].
The historical logic of the original R.I. Constitutional ban on dual
Federal and State Office holding in the 1842 is, perhaps, more easily
understood in the context of a short history of events surrounding 1842
[51]. Rhode Islanders were distrustful of foreign powers, national
government, [52]and sought to change the existing power structure
of 1663 Charter Government. Several cases, In re Advisory Opinion, 732
A.2d 55, 64, 65, (R.I. 1999) (Ethics) [53]; Luther v. Borden, et
al, 48 U.S. 1 (1849) (Dorr War-Political Question - Republican Form of
Government); Gorham v. Robinson, 57 R.I. 1, 12-19, (1936); [54],
Payne & Butler v. Providence Gas, 31 R.I. 295, 77 A. 145
(1910), discuss the tenor of times when the Article IX, §6
was first added to the first Rhode Island Constitution.
Several key historical points clearly support the logic of the
Constitutional ban on federal office holding by state office holders.
First, the roots of Rhode Island's distrust of the Federal Government
and foreign government involvement in their affairs ran deep, and were
relatively hot at that time. During Thomas Dorr's revolution, the
assistance of President John Tyler, George Bush's predecessor, was
sought to enforce the alleged duty of the United States to ensure a
form of Republican Government" in Rhode Island. Luther v. Borden, et
al, 48 U.S. 1 (1849).
Second, Rhode Island's dislike for any other government being involved
in their affairs was deep rooted. Roger Williams, Anne Hutchinson,
Samuel Gorton, Thomas Coddington, had left the Commonwealth of
Massachusetts to be free from its religious controls, and eventually
had obtained a liberal charter from King Charles II in 1663 in order to
be nearly free from English governance in all matters, excepting
military and taxation.
Rhode Island had little respect for those so-called reserved powers of
England in the years leading to the American Revolution. Its Newport
privateers harassed British Shipping. Rhode Island citizens burned
British Ships attempting to collect shipping tariffs and harassed
British tax collectors. On May 4, 1776, Rhode Island and Providence
Plantations was one of the first colonies to declare its independence
of Britain, without the any help of any colonial armies.
In 1787 the War with England had been won; and Rhode Island was unsure
that it needed any other national government dominating its people. The
proposed terms of U.S. Constitution took much of the sovereign powers,
[55], [56], [57], which Rhode Island had been long exercising itself
since 1663.
Rhode Islanders then asked: Who needs the United States of
America?
On September 21, 1787, the United States Constitution was signed
by a majority of the then existing states, but, not by delegates from
Rhode Island. It was only after President George Washington's implicit
threat of a state invasion and some negotiation, that the then
government of Rhode Island in 1790 conceded its sovereign authority to
the government of the United States.
That distaste for domination by other governments reminded arid in the
mouths of Rhode Islander 57 years later when in 1842 its voters first
prohibited any Rhode Island officials from holding any Federal office.
XVI. The Office of Member of
the Military Review Panel of the U.S. Department Defense is a Federal
Office Constitutionally Incompatible with the Office of R.I. Supreme
Court Chief Justice, From Which Williams was Automatically Removed on
September 21, 2004.
The standards of review in this matter involve constitutional
incompatibility and the exercise of sovereignty of the United States of
America. Case precedent is clear. The undisputed facts are clear and
undisputed and the plain meaning of the provisions of Article III,
§6 should need no further interpretation. [58] The R.I. Supreme
Court's advice to Governor Dennis J. Roberts, infra, that his
acceptance of the federal position of United Nations Representative
would automatically remove him as Governor is advice that Frank
Williams should have considered.
In this connection it is unnecessary to restate the history of
our constitution and to establish the fact that from the beginning
Rhode Island has been exceptionally jealous of its independence and
sovereignty as a state. For the present problem it is sufficient to
point to the explicit provisions of the above-quoted section of our
constitution which are as strong, if not stronger, than similar
prohibitions found in the constitutions of the other states.
[1] The intent of that language is clear.
It was designed to secure the undivided loyalty and service of such
officers to this state. The framers of the constitution deemed it
prudent to prevent even the possibility of a conflict between
loyalties. Therefore they dealt with the problem in two ways. In the
first clause of sec. 6 they provided that no person while holding an
office under any other government, state or country could act as a
general officer or as a member of the general assembly. Apparently not
content with this exclusion they then provided in the second clause
that if any such officer or judge, after his election and engagement,
accepted any appointment under any other government then his said
office shall be immediately vacated.
In the circumstances here we are
concerned only with the second provision. Whatever may have been
intended by the use of the words "any appointment," as distinguished
from any appointment to an office under any other government, it is
clear in any event that the general language necessarily includes an
appointment to a public office under the United States government.
Therefore in order to give a construction to the words "any
appointment" that will be most liberal and favorable, we shall assume
for our present purpose that these words imply an appointment to office
and not merely an appointment of any kind whatever.
In Re Opinion to the Governor ( Governor Serving As UN Representative),
83 R.I. 370, 373 (R.I. 1955).
***
"The rule for determining what constitutes a public office in the
constitutional sense has already been decided in this state. It is not
governed by a consideration of whether the two offices are naturally
incompatible as required at common law, because the explicit
prohibition in the constitution makes them incompatible if the position
in question is an office under another government. Nor is it decided by
whether an oath may be required or waived; or by whether the tenure or
term is of short or long duration; or by whether the incumbent is
entitled to an emolument which he may desire to waive. In our judgment
these are accidentals which perhaps may be considered when the basic
elements are not clear. But the essential question is always to be
resolved by a consideration of the nature, duties and functions of the
position in order to determine whether they entitle the incumbent to
exercise some portion of the sovereignty of another government.
(Emphasis Added)
That general question was considered by
this court in Attorney General ex rel. Adams v. McCaughey, 21 R.I. 341.
There the court, at page 344, adopted and quoted with approval the text
of Spelling on Extraordinary Relief, § 1780, as follows: "There
are three principal tests for determining whether one performing duties
of a public nature is a public officer, in the sense of subjecting his
incumbency or employment to a quo warranto proceeding: First, whether
the sovereignty, either directly through legislative enactment or
executive appointment, or indirectly as through a municipal charter, is
the source of authority; second, whether the duties pertaining to the
position are of a public character---that is, due to the community in
its political capacity---and third, whether the tenure is fixed and
permanent for a definite period fixed by law, unless for neglect of
duty or malfeasance, or subject to termination at the will of others
without the assignment of cause."
In connection with the same subject,
this court in an earlier case, State v. Brown, 5 R.I.1, held in effect
that it does not change the constitution to say that such an appointee
or designee would avoid the conflicts contemplated by the constitution
by conducting himself so as "to be clear" in both offices. It is
therein stated at page 10: "The law is adapted not to individual and
exceptional cases, but to human nature as it ordinarily exhibits
itself; and it cannot afford to dispense with the well-known guards of
common policy for the chance of now and then stumbling upon a bright
example, or producing a startling effect. The question of
incompatibility is to be determined from the nature of the duties of
the two offices, and not from a possibility, or even a probability,
that the defendant might duly perform the duties of both." See In re
Corliss, 11R.I. 638. See also Opinion to the Governor, 67 R.I. 197, and
State ex rel. Costello v. Powers, 80 R.I. 390. In other words if the
incumbent of a position at some time is entitled thereby to exercise a
portion of the sovereignty of the United States government within the
area or limitations prescribed by law, the other conditions being also
present, then he is a public officer and his position is a public
office in the constitutional sense. (Emphasis Added).
In Re Opinion to the Governor ( Governor Serving As UN Representative),
83 R.I. 370, 373, 374, 375, (R.I. 1955).
***
We are of the opinion that in so functioning, whether he acts on
direction of the president or in accordance with his own
recommendations to the president which are not vetoed, the incumbent
has the right to exercise by delegation, directly or indirectly, some
portion of the sovereign power of the United States in place of the
constituted authority thereof. In other words the nature and character
of the duties and functions imposed upon a special representative meet
all the tests applied by this court in Attorney General ex rel. Adams
v. McCaughey, supra, and in particular the incumbent at least shares in
and exercises a portion of the sovereignty of the United States.
In Re Opinion to the Governor ( Governor Serving As UN Representative),
83 R.I. 370, 373, 374, 375, 382, (R.I. 1955).
Although Advisory Opinions are not precedent, Article X. §3, the
impact of the law outlined herein is directly applicable to the matter
at hand.
* Article VI, §3 is Self Executing.
The provisions of Article IV, §3 are self-executing [59] and
require no further interpretation. At the moment of former Chief
Justice Williams swearing on September 21, 2004 his office of Chief
Justice of the R.I. Supreme Court became vacant. This is no need to
consider questions of judicial incompatibility [60] or of
administrative incompatibility [61]. It is a question of Williams'
refusal to adhere to a self-executing provision of the Rhode Island
Constitution.
XVII. Williams' Published Defenses
Disregard Established Law.
Obviously to all, Williams cannot be a judge of his own constitutional
prohibited conduct. [62]
The headline of the Providence Journal, on January 31, 2004 at page 1,
"Judge: Role Terrorism Tribunal is constitutional" did not decide the
state constitutional question. Exhibit 6. While the article and
headline of January 31, 2004 may contain rhetorical defenses, it is
without legal significance or legal precedence. Judges decide legal
questions, not the media.
Either the operation of Article VI, §3, paragraph 2 of the
Rhode Island State Constitution, automatically removed Williams from
his State Office as Chief Justice on September 21, 2004 or it did not?
* Constitutional Incompatibility Trumps Natural
Incompatibility.
The issue before the Court is not one of "a factual or natural
incompatibility" of the State Office of Chief Justice and the Federal
Office of Member of Military Review Panel of the U.S. Department of
Defense, as argued by Bruce Kogan and Frank Williams in the January 30,
2004 Providence Journal article, Exhibit, i.e.,
those positions may not be factually or naturally incompatible,
but, the issue is one of an absolute State Constitutional Prohibition
[63], [64], of against a state judge taking during his state term
from holding any office in the government of the United States.
The mandatory constitutional words, contained in Article VI, 3, "if any
*** judge shall, after election and engagement, accept any appointment
under any other government, the office under this shall be immediately
vacated" must be enforced by this Court.
* Needham was a Colonel before He was Judge.
The question of the judicial appointment of Thomas Needham while in the
Army Reserves, Davis v. Hawksley, 119 R.I. 453, 455 (R.I. 1977),
is not an apposite case for Williams. Its dicta are actually harmful to
William's defense. The Late Judge Needham's case only arose in the
context of the first paragraph of Article III, § 6, relating to a
then Colonel in the R.I. National Guard Reserve subsequent appointment
as a state judge [65].
Needham's case emphasized the difference between the first and second
paragraph of Article III, §6. The first paragraph of now
Article III, § 6 of the 1986 Constitution, which was then Article
IX, §6 of the 1842 State Constitution, did not create the
constitutional prohibition relating to judges prior to state
appointment; it created a prohibition after state appointment which is
Williams' situation. Timing is everything in life.
Although not discussed in the Needham case, a member of the R.I.
National Guard Reserve certainly, at least prior to a federal call up,
does not exercise federal sovereign powers. Former Reserve Colonel
Thomas Needham had not been called up by a Presidential order, and was
not in the service of the United States when appointed to the
bench.
* Sundlun Exercised No Sovereign Power.
Unlike former Governor Elect Bruce Sundlun who was appointed to private
satellite corporation chartered by the Congress, COMSAT, before he was
sworn as a R.I. Governor, In Re: Sundlun, 585 A.2d 1185 (R.I. 1991),
Frank Williams was appointed to offices of the United States exercising
the sovereign war power of the President. In Re Opinion to the Governor
( Governor) Serving As UN Representative), 83 R.I. 370, 373, 374, 375,
(R.I. 1955). Unlike Sundlun, Williams does not have an advisory opinion
of the U.S. Attorney General that his federal office is not an office
of the United States. [66]
* Senator Felag's Amendment
to R.I. G.L. §30-13-3, as Amended, Can Not Amend Article III,
§6 of the R.I. Constitution Without the Vote of the People.
Defendant Williams in his newspaper defense of January 31, 2004
apparently claims that a state statue, R.I.G.L. §30-14-3, [67] can
amend the State Constitution.
The subsidiary issue here thus is question of State
Constitutional primacy [68], Article VI, §1 [69], Article I,
[70], Preamble, Paragraph 2 [71], Article X, §§1,2. [72],
over the provisions of R.I.G.L.§30-14 - 3.
It is well established Constitutional law that the General Assembly
cannot interpret the meaning of Article III, §6 by passage of a
statute. G. & D. Taylor & Co. v. R.G. & J.T. Place, 4 R.I.
324, 342 (R.I. 1854). [73] It has long been established that the
Supreme Court is the "only * * * body that is authorized to interpret
the statutes of this State with the view of determining their
constitutionality." Payne & Butler v. Providence Gas Co., 31 R.I.
295,313, 77 A. 145, 153, (1910).
The General Assembly may not, through a statute change constitutional
rights. Attempting to amend Article VI, §3 to permit a vacated
judge to continue to sit interferes with the right of citizens under
the provisions of Article I, §2, §§5 to an adequate
judicial remedy. Citizens cannot expect non judges to adjudicate their
causes. [74] A statute, such as R.I.G.L. §30-14-3, cannot amend an
unequivocal State Constitutional mandate. Only the voters of this State
can amend [75] the mandatory State Constitutional provisions [76] of
Article III, §6. Only the Supreme Court can interpret Article III,
§6. See Article III, Distribution of Powers, Article X of the R.I.
Constitution.
Twelve (12) days after Williams' public defense of his intention to
accept the federal position on January 30, 2004, in a not so subtle
legislative attempt to unconstitutionally configure a statute to suit
the needs of Frank Williams' ambitions, Senator Walter Felag introduced
an amendment to the provisions of R.I.G.L. §31-14.3 adding the
words "or active" to make the statute applicable to Frank Williams'
expected appointment as a Major General in Armed Forces. [77]
The 2004 amendment adding membership in the active armed forces to
alleged shelter of R.I. G.L. 30-14-3 had only one obvious
beneficiary, soon to be Major General Frank Williams. The R.I.
National Guard serving in Iraq were already protected by the original
1956 enactment; and the provisions of 10 U.S.C. § 973, Duties:
Officers on Active Duty; Performance of Civil Functions Restricted
[78], otherwise bans an active member of the Armed Forces from holding
any state office. Curiously, Rumsfeld's Directive Number Nine (9), [79]
claimed to have the Federal Executive Authority to exempt a Member of
the Military Review Panel from that Congressional ban prohibiting a
Major General in the active armed forces from holding state office. In
any case, Felag's amendment is "blatantly unconstitutional" [80]; and
repugnant to Article III,§6.
Compare the words of Article III, §6 to the words contained in
Felag's amendment. Felag's amendment, P.L. 2004, ch. 414, and, the
statue itself as originally enacted, P.L. 1956, ch. 3742, par. 242.
Both are directly repugnant to those similar words in the State
Constitution contained in Article III, §2.
Article III, §6. "if any *** judge shall, after
election and engagement, accept any appointment under any other
government, the office under this shall be immediately vacated."
(Emphasis Added)
Senator Felag's amendment. "30-14-3. Any citizen of this state may hold
a commission in *** any active or reserve component of the United
States armed forces without thereby vacating any civil office,
position, or commission held by that citizen. The holding of any
commission shall not constitute such a holding of an office of trust
and profit under the government of this state or of the United States
as shall be incompatible with the holding of any civil office,
position, or commission under the government of this state.
A state senator is no more able to interpret through a statue Article
III, §6 of the R.I. State Constitution then Frank Williams is able
to do now as a former Chief Justice. If a constitutional provision
needs interpretation, and Article III, § 6, does not, then the
judicial branch will do that job, not the legislative branch. [81]
As explained earlier, Senator Felag's 2004 amendment does not bring
Williams into the shelter of the R.I. Supreme Court's holding in Thomas
Needham's case [82]. Needham was in the reserves first and a judge
second. Williams was a judge and Chief Justice first, and then a
federal officer.
* The First Federal
Appointment Removed Williams.
Notwithstanding the Felag Amendment, and notwithstanding the possible
appointment of Williams as a Major General, his first appointment as a
Member of the Military Panel of Review, a federal office, removed him
automatically from state office. The Office of Member of the Military
Review Panel of the U.S. Department of Defense and the Office of Major
General, a two star general, are two distinct federal offices. At the
time of the swearing of Williams as Member of the Military Review Panel
on September 21, 2004, he had not been sworn as Major General. He was
yet become his self proclaimed "Weekend Solider." To the
extent that the provisions of R.I.G.L. §30-14-3 [83] might be
interpreted incorrectly as a statutory shelter for Williams' automatic
removal, his acceptance of the separate and independent federal prior
position of a Member of the Military Review Panel of the U.S.
Department of Defense did the job. One federal appointment was enough
to remove him from federal office, not withstanding whether or not
Williams' received his commission as a Major General.
* Williams' Position as a
Member of the Military Review Panel shares the exercise of Federal
Sovereign Powers by His Own Words.
Williams' newspaper defense that he is a citizen soldier, not full
time, that he will be a non active reserve office and only reporting to
Secretary of Defense, supposedly, as employee without discretion to
exercise federal sovereign powers is not only constitutionally not
relevant, see earlier citations, but appears to be contrary to Williams
own statements, at his swearing in ceremony.
Contrary to his earlier newspaper comments, the transcript of his
swearing ceremony on September 21, 2004, indicates that Williams
expects to exercise independent judgment of war crime issues and
procedural defense issues. He does not indicate that that he will be a
non discretionary official taking orders. According to his own words,
as he appeared in his judicial robes, See Exhibit,-as did the words of
the Secretary of Defense, and those of his other appointees, Williams
will be acting in his new position as would an other wise independent
minded federal administrative appellate judge be expected to act.
Donald Rumsfeld: ***"The role of the view panels is critically
important. It's to ensure that the commissions take place in a fair and
proper manner. And except in a few cases, I suppose, that my be
necessary to safeguard sensitive information and that might damage our
national security, the panel's written opinions will be published and
made available to the public. These gentlemen have been selected
because they will make every effort to ensure that the procedures
followed are fair to the accused and reflect our basic legal
traditions. Gentlemen, your actions, your independent judgment and your
careful oversight will serve as a clear demonstration of the character
of our country and its people.***"
Frank Williams: *** "I commend the secretary and the president, our
commander -in - chief for insisting - and I wish the public out there
to know that the only instructions we've really be given as members of
this panel is to be fair and impartial and that's only right because
that all judges know how to be is fair and impartial." ***
Griffin Bell: "*** They had military tribunals in the Civil War and
they had them since George Washington's time, actually. Nothing new
about a military tribunal, but as with an tribunal, you have to be
dedicated to fairness, follow the rules of due process."
Pages 1, 3 of Transcript of September 21, 2004 Swearing In Ceremony.
Exhibit 5.
Exhibit 5, Transcript of September 21, 2004, U.S. DOD.
XVIII. Summary.
The words of the Article III, §6 of the Rhode Island Constitution
are clear. The meaning of Article II, §2 of the U.S. Constitution
is clear. The words of the U.S. Code of Federal Register and Military
Instructions of the Department of Defense are clear. A Member of the
Military Review Panel of the U.S. Defense is an Officer of the United
States Government.
Pursuant to the constitutionally self executing provisions of Article
III, §6, the Office of Chief Justice of the R.I. Supreme Court
became vacant on September 21, 2004 when then Chief Justice Frank
Williams was sworn and engaged as Officer of the U.S. Government in the
capacity as a Member of Military Review Panel of the U.S. Department of
Defense, as an appointment of the President of the United States,
through his designee, Secretary of Defense Donald Rumsfeld. The Office
of Chief Justice of the Rhode Island Supreme Court has been vacant
since September 21, 2004.
Plaintiffs
By Their Counsel
___________________
Keven A. McKenna, #662
Keven A. McKenna, P.C.
23 Acorn Street
Providence, R.I. 02903
401 273-8200 Tel.
401 521-5820 Fax
KevenM@McKennalaw.cc Net
Certification
I the undersigned hereby certified that on ___ day of April, 2005, I
caused to be served by constable and to be delivered by counsel,
postage prepaid, a copy of the above memorandum, complaint,
exhibits, and motion to restrain, to Frank Williams, 250 Benefit
Street, Providence, Rhode Island 02903; Donald Carcieri, Governor, The
State House, Smith Street, Providence, Rhode Island; Gerald Visconti,
Chair of R.I. Judicial Nominating Commission, Dorrance Street,
Providence, R.I. 02903, to Paul Tavares, R.I. State Treasurer, The
State House, Smith Street, Providence, R.I.; and Patrick Lynch,
Attorney General of the State of Rhode Island, 150 South Main Street,
Providence, R.I. 02903.
__________________________
_____
[1] R.I. G.L. §9-30-1 Scope.
The superior or family court upon
petition, following such procedure as the court by general or special
rules may prescribe, shall have power to declare rights, status, and
other legal relations whether or not further relief is or could be
claimed. No action or proceeding shall be open to objection on the
ground that a declaratory judgment or decree is prayed for. The
declaration may be either affirmative or negative in form and effect;
and such declarations shall have the force and effect of a final
judgment or decree. *** (Emphasis Added.)
R.I.G.L. 9-30-2 Power to construe.
Any person interested under a deed,
will, written contract, or other writings constituting a contract, or
whose rights, status, or other legal relations are affected by a
statute, municipal ordinance, contract, or franchise, may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and obtain a
declaration of rights, status, or other legal relations thereunder. ***
R.I.G.L. §9-30-12 Construction.
This chapter is declared to be remedial;
its purpose is to settle and to afford relief from uncertainty and
insecurity with respect to rights, status, and other legal relations;
and is to be liberally construed and administered. The remedy provided
by this chapter shall be cumulative and shall not exclude or prevent
the exercise of any other right, remedy, or process heretofore allowed
by law or by previous enactment of the legislature. (Emphasis Added).
[2] R.I.G.L.§ 8-2-14 Jurisdiction of actions at law. -
(a) The superior court shall have original jurisdiction of all
actions at law where title to real estate or some right or interest
therein is in issue, except actions for possession of tenements let or
held at will or by sufferance; and shall have exclusive original
jurisdiction of all other actions at law in which the amount in
controversy shall exceed the sum of ten thousand dollars ($10,000); and
shall also have concurrent
original jurisdiction with the district court in all other actions at
law in which the amount in controversy exceeds the sum of five thousand
dollars ($5,000) and does not exceed ten thousand dollars ($10,000);
provided, that the plaintiff shall not recover costs unless he or she
shall recover in such action
not less than five thousand dollars ($5,000), or unless the action is
one in which the title to real estate or some right or interest therein
is in question, or unless in the discretion of the court, on motion,
costs are awarded. If an action is brought in the superior court which
is within the jurisdiction conferred by this section, the superior
court shall have jurisdiction of all other actions arising out of
the same transaction or occurrence, provided the other actions are
joined with the action within the jurisdiction conferred by this
section or are subsequently made a part thereof under applicable
procedural rules.
[3] R.I.G.L.§ 8-2-13 Exclusive jurisdiction of equity
actions. -
The superior court shall, except as otherwise provided by law,
have exclusive original jurisdiction of suits and proceedings of an
equitable character and of statutory proceedings following the course
of equity; provided, however, that every probate court shall have the
power, concurrent with
the superior court, to replace, remove, or fill any vacancy of any
trustee under a trust established under a will, or to effect tax
minimization or estate planning under § 33-15-37.1 If an action is
brought in the superior court which represents an attempt in good faith
to invoke the jurisdiction conferred
by this section, the superior court shall have jurisdiction of all
other actions arising out of the same transaction or occurrence,
provided the other actions are joined with the action so brought or are
subsequently made a part thereof under applicable procedural rules, and
the court may retain
jurisdiction over the other actions even though the initial action
fails for want of equity jurisdiction. (Emphasis Added).
[4] Providence Teachers Union v. Napolitano, 690 A.2d 855, 856, (R.I.
1997).
The purpose of declaratory-judgment actions brought pursuant to G.L.
1956 chapter 30 of title 9 is "to settle and to afford relief from
uncertainty and insecurity with respect to rights, status and other
legal relations." G.L. 1956 §9-30-12; see also Fireman's Fund
Insurance Co. v. E.W. Burman, Inc.,
120 R.I. 841,, 845, 391 A.2d 99, 101 (1978) ("[t]he obvious purpose of
the Uniform Declaratory Judgment Act[s] Act is to facilitate the
termination of controversies"). However, the party seeking declaratory
relief must present the court with an actual controversy. See, e.g.,
Newbay Corp. v. Sisson, 621 A.2d 1250,
1251 (R.I. 1993) ("defer[ing] review of, * * * Superior Court
[declaratory] judgment in order to determine whether there is an actual
controversy at stake"); State v. Cianci, 496 A.2d 139, 146 (R.I.
1985) ("[t]he main prerequisite to successful prosecution of an action
for declaratory judgment is the existence of an
actual or justiciable controversy"); Langton v. Demers, 423 A.2d 1149,
1150 (R.I. 1980) ("plaintiff failed to establish the essential
prerequisite of the existence of an actual or justiciable
controversy"). Although the "`decision to grant a remedy under the
Declaratory Judgment[s] Act is purely discretionary,'" Vincent Co. v.
First National Supermarkets, Inc., 683 A.2d 361, 362 (R.I. 1996), trial
justices may not dispense with the traditional rules prohibiting them
from rendering advisory opinions or adjudicating hypothetical issues
merely to resolve potential disputes. E.g., Langton, 423 A.2d at 1150
(the Declaratory Judgments Act "does not authorize the Superior Court
to give an advisory opinion upon hypothetical facts that are not in
existence or may never come into being"). ***
Whether the individual plaintiffs may continue to live where they
choose if and when they are ever offered permanent employment with the
city is a question that is not yet ripe. See Sasso v. State, 686 A.2 d
88, 91 (R.I. 1996) ("that which is not ripe for decision cannot
and should not be decided in a declaratory-judgment action").
[5] Compare Capital Properties, Inc. V. State, 749 A.2d 1069, 1080
(R.I. 1999), affirming the decision of Thomas Needham, Justice of the
R.I Superior Court in the matter of Capital Properties, Inc. v. State
Of Rhode Island Et Al., 99-324-A.
"This Court finds that a declaratory determination of the contractual
obligations of the parties will terminate this aspect of the
controversy. Moreover, our Supreme Court recognized, in Rhode Island
Turnpike and Bridge Authority v. Nugent, 95 R.I. at 29, 182 A.2d at
432, that the State may consent to be sued, and thus waive any
sovereign immunity from judicial review under the Act. Additionally,
"[i]t has been determined that public officers are entitled to have
their legal duties determined judicially by action for declaratory
judgment. I Anderson, Declaratory Judgments (1951), sec. 159, p. 307.
And it has stated that the `state itself and its political subdivisions
. . . are proper parties plaintiff'" Borchard, Declaratory Judgments
(1941), pp. 264." Abbott v. Beth Israel Cemetery Ass'n, 100 A.2d.532,
538 (N.J. 1953) (citations omitted). (Emphasis Added.)."
[6] Retirement Bd. of Employees' Retirement Sys. of Rhode Island v.
DiPrete; ___ A.2d ___ (2004-058); Williams, Chief Justice. Abraham
Lincoln once explained that "[t]he legitimate object of government is
to do for * * * people whatever they need to have done, but cannot do
at all, or cannot so well do, for themselves * * *."(fn1) Implicit in
this is an indispensable ingredient of a well-functioning democracy --
the element of trust. Public officials are honored with the opportunity
to serve the public to benefit the people. It is expected that those
officials will fulfill their commitments with loyalty, honor and
integrity.
[7] In Re to the Governor, 83 R.I. 370, 372, 374, 382 (1955). *** "The
intent of that language is clear. It was designed to secure the
undivided loyalty and service of such officers to this state. The
framers of the constitution deemed it prudent to prevent even the
possibility of a conflict between loyalties. Therefore they dealt with
the problem in two ways. In the first clause of sec. 6 they provided
that no person while holding an office under any other government,
state or country could act as a general officer or as a member of the
general assembly. Apparently not content with this exclusion they then
provided in the second clause that if any such officer or judge, after
his election and engagement, accepted any appointment under any other
government then his said office shall be immediately vacated." *** "
But the essential question is always to be resolved by a consideration
of the nature, duties and functions of the position in order to
determine whether they entitle the incumbent to exercise some portion
of the sovereignty of another government. " *** "In other words
the nature and character of the duties and functions imposed upon a
special representative meet all the tests applied by this court in
Attorney General ex rel. Adams v. McCaughey, supra, and in particular
the incumbent at least shares in and exercises a portion of the
sovereignty of the United States."*** It is true that such a special
representative's discretion is limited to an extent, but he is
nonetheless a participant as a representative of the United States in
the exercise of an act of sovereignty."
[8] R.I. State Constitution, Article 10, 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. The governor shall fill any
vacancy of any judge of the Rhode Island Superior Court, Family Court,
District, Workers' Compensation Court, Administrative Adjudication
Court, or any other state
court which the general assembly may from time to time establish by
nominating on the basis of merit, a person from a list submitted by the
aforesaid judicial nominating commission, and by and with the advice
and consent of the senate, shall appoint said person to the court where
the vacancy occurs. The powers, duties, and composition of the judicial
nominating commission shall be defined by statute.
[9] R.I.G.L.§ 8-16.1-5 Nomination and appointment of supreme
court justices.-
(a) The governor shall immediately notify the commission of any
vacancy or prospective vacancy of a justice of the Rhode Island supreme
court. The commission shall advertise for each vacancy and solicit
prospective candidates and shall consider names submitted from any
source. Within ninety (90) days of any vacancy the commission shall
publicly submit the names of not less than three (3) and not more than
five (5) highly qualified persons for each vacancy to the governor. The
governor shall fill any vacancy of any justice of the Rhode Island
supreme court by
nominating one of the three (3) to five (5) highly qualified persons
forwarded to him or her by the commission for the court.
(b) The governor shall fill any such vacancy within twenty-one
(21) days of the public submission by the commission. ***
[10] Kass v. Retirement Board, 567 A.2d 358 (R.I. 1989).Fn. 1 "We
assume, without deciding, that plaintiff-taxpayer Kass has standing to
bring this suit owing to the "substantial public interest" in resolving
this issue. See Sennott v. Hawksley, 103 R.I.730, 732, 241 A.2d 286,
287 (1968).
[12] Assoc. Builders & Contractors of Rhode Island Inc. v. Dept. of
Admin., 787 A.2d 1179, 1187,( R.I. 2002).
" Here, the trial justice found that "at least one, and probably
more, of the plaintiffs, including * * * Robert Audet, Inc., has
demonstrated to the Court that the facts alleged cause injury to it
which is sufficiently real and immediate so as to give it standing to
bring this proceeding."(fn5) We concur with this finding, and therefore
we need not, as we have done on rare occasions, relax our standing
requirements "because of substantial public interest in having a matter
resolved." Blackstone Valley, 452 A.2d at 933 (citing Sennott v.
Hawksley, 103 R.I. 730, 732, 241 A.2d 286, 287 (1968)). Moreover,
whether the state's use of PLAs violates the state purchases act is a
question of law that is capable of repetition, yet may evade review.
Therefore, as we indicated in our stay of the Superior Court's
judgment, this case will not be deemed mooted."
[13] R.I. State Constitution, Article I, Section 5. Entitlement to
remedies for injuries and wrongs - Right to justice.
Every person within this state ought to find a certain remedy,
by having recourse to the laws, for all injuries or wrongs which may be
received in one's person, property, or character. Every
person ought to obtain right and justice freely, and without purchase,
completely and without denial; promptly and without delay; conformably
to the laws.
[14] R.I. Constitution, § 2. Laws for good of whole - Burdens to
be equally distributed - Due process - Equal protection -
Discrimination - No right to abortion granted.
All free governments are instituted for the protection, safety,
and happiness of the people. All laws, therefore, should be made for
the good of the whole; and the burdens of the state ought to be fairly
distributed among its citizens. No person shall be deprived of life,
liberty or property without due process of law, not shall any person be
denied equal protection of the laws. No otherwise qualified person
shall, solely by reason of race, gender or handicap be subject to
discrimination by the state, its agents or any person or entity doing
business with the state. Nothing in this section shall be construed to
grant or secure any right relating to abortion or the funding thereof.
(Emphasis Added).
[15] R.I. State Constitution. Article X, §2. Jurisdiction of
supreme and inferior courts - Quorum of supreme court.
The supreme court shall have final revisory and appellate
jurisdiction upon all questions of law and equity. It shall have power
to issue prerogative writs, and shall also have such other
jurisdiction as may, from time to time, by prescribed by law. A
majority of its judges shall always be necessary to constitute a
quorum. The inferior courts shall have such jurisdiction as may,
from time to time, be prescribed by law.
[16] R.I. State Constitution, Article III, Section 6. Holding of
offices under other governments -
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 acknowledgment of deeds, or other legal
instruments, by the authority of any other state or country. (Emphasis
Added.)
[17] R.I.G.L.§ 8-1-1 Composition - Effect of resignation or
retirement on pending cases. -
The supreme court shall consist of a chief justice and four (4)
associate justices; provided, however, that whenever any justice of the
supreme court shall cease to be a justice thereof by reason of
resignation or retirement, the resigned or retired justice shall be
eligible to exercise the function of a
justice of the supreme court for the purpose of participating in
rendering decisions in all causes argued to the court prior to the
resignation or retirement of the justice. The provisions of this
section shall be interpreted and construed liberally, for the purpose
of accomplishing the purpose thereof.
[18] In Re Petition Of DeOrsey, 112 R.I. 536, 312 A.2d 720, (1973).
[19] Rhode Island Bar Ass'n v. Automobile Serv. Ass'n, 179 A. 139, 143
(R.I. 1935). "The practice of law is affected with a public interest.
It is, therefore, the right and duty of the state to regulate and
control it so that the public welfare will be served and promoted."
[20] In Re: Lallo, 768 A.2d 921, 923 (R.I. 2001).
"We shall first discuss the arguments of respondent that
challenge the authority of the commission, and ultimately, this Court's
authority to impose a civil sanction in a disciplinary action. It is
well settled that the authority of the Supreme Court to discipline the
members of the bar, including judges, is plenary in nature. See
In the Matter of Almeida, 611 A.2d 1375,1382 (R.I. 1992); see also
Rhode Island Bar Association v. Automobile Service Association, 55 R.I.
122, 178 A. 139 (1935) (stating that the power is inherent in the
judiciary to protect the public and the jurisdiction of the Court)."
(Emphasis Added).
[21] Berberian V. Kane, 425 A.2d 527,528 (R.I. 1981).
"Aram K. Berberian, an attorney, had sought in the Superior Court
a declaratory judgment that Rule 45 of the Supreme Court Rules was
invalid. Rule 45 provides for periodic registration of attorneys and
the payment of an annual registration fee of $15 for the establishment
and maintenance of a disciplinary account that is used for the
enforcement of the Code of Professional Responsibility. He sought to
enjoin the defendant, the clerk of this court, from removing his name
from the roll of attorneys for failure to pay said fee. The plaintiff
contended further that this registration fee is in fact an
unconstitutional tax. The trial justice rejected this contention on the
authority of Petition of Rhode Island Bar Ass'n 118 R.I.489,528,374
A.2d 802 (1977).*** An argument which advances the proposition
that a justice of the court who participates in the necessary
rule-making function should then be disqualified to pass upon the
validity of such a rule if subjected to constitutional challenge would
run counter to the essential principle of necessity [fn1] and would
render the rule-making process self-defeating and nugatory. See Cullen
v. Adler, 107 R.I. 749, 271A.2nd 466 (1970); Poirier v. Martineau, 86
R.I. 473, 136 A.2d 814 (1957) [fn2].
[22] Bergeron v. Roszkowski, 2003-26-Appeal (R.I. 2005).
"[T]o prevail on a legal malpractice claim , `a plaintiff must
prove by a fair preponderance of the evidence not only a defendant's
duty of care, but also a breach thereof and the damages actually or
proximately resulting therefrom to the plaintiff.'" Ahmed v.
Pannone, 779 A.2d 630, 632-33(R.I. 2001) (quoting Macera Brothers
of Cranston, Inc. v. Gelfuso & Lachut, Inc., 749 A.2d 1262, 1264,
R.I. 1999))
[23] Gans v. Mundy, 762 F.2d 338,341, 346 (3rd Cir. 1985), cited
with approval in Insurers' Fund v. Leviton Mfg. Co., Inc., 763 A.2d
590, 595 (R.I. 2000). " The parties agree that Pennsylvania malpractice
law governs the substantive aspects of this case and the panel is
unanimous in the statement of relevant controlling precepts of
substantive law. Elements of this tort under Pennsylvania law are "(1)
the employment of the attorney or other basis for duty; (2) the failure
of the attorney to exercise ordinary skill and knowledge; and (3) that
such negligence was the proximate cause of damage to the plaintiff."
Schenkel v. Monheit, 266 Pa. Super. 396,399, 405 A.2d 493, , 494 (1979)
(quotation omitted). The standard of care to which an attorney must
adhere is measured by the skill generally possessed and employed by
practitioners of the profession. See Denardo v. Carneval, 297 Pa.
Super. 484, 444, A.2d 135 (1982). "[A]n attorney is presumed to have
discharged the duties of his representation until the opposite has been
made to appear." Mazer v. Security Insurance Group, 368 F. Supp. 418,
422 (E.D.Pa. 1973), aff'd mem., 507 F.2d 1338 (3d Cir. 1975). Under
Mazer, an attorney's considered decision involving at a minimum the
requisite exercise of "ordinary skill and capacity," and which is an
"informed judgment," does not constitute malpractice. An attorney's
conscious exercise of such judgment, "even if subsequently proven to be
erroneous, is not negligence. . . . There is no presumption that an
attorney has been guilty of a want of care, arising merely from a bad
result." Id. *** In Lentino v. Fringe Employee Plans, Inc., 611 F.2d
474 (3d Cir. 1979), we stated that the determination of legal
malpractice, like determinations of malpractice in other professions,
requires not only an evaluation of professional skill and judgment, but
also of a standard of care which is related to common professional
practice.
[24] Macera Bro. Of Crans. v. Gelfuso & Lachut, 740 A.2d 1262, 1264
(R.I. 1999)
A civil malpractice claim is, in essence, a negligence claim. In order
to prevail on a negligence-based legal malpractice claim, a plaintiff
must prove by a fair preponderance of the
evidence not only a defendant's duty of care, but also a breach thereof
and the damages actually or proximately resulting therefrom to the
plaintiff. "Failure to prove all three of those
required elements, acts as a matter of law, to bar relief or recovery."
Vallinoto v. DiSandro, 688 A.2d 830, 836 (R.I. 1997). Macera is
required to prove that Gelfuso was negligent in its
representation, and that the attorney's negligence was the proximate
cause of any damage or loss. Scuncio Motors, Inc. v. Teverow, 635 A.2d
268, 269 (R.I. 1993). The plaintiffs have not
established that but for the attorney's negligence, a security bond
would have been posted. (Emphasis Added).
[25] Vallinoto v. DiSandro, 688 A.2d 830, 834 (R.I. 1997)
An integral part of any attorney-malpractice-negligence claim requires
proof that actual damages resulted from the attorney's alleged breach
of the duty arising out of the attorney-client relationship. That duty
includes in essential part providing competent representation to the
client, including the utilization of competent legal knowledge, skill,
thoroughness and case preparation reasonably necessary both to protect
and to advance the client's interests. See, e.g., art. V, Rule 1.1 of
the Supreme Court Rules of
Professional Conduct. (Emphasis Added).
[26] R.I. Supreme Court Rules, Art.V. 5, R. 1.1 Rhode Island
Rules Of Professional Conduct
Rule 1.1 Competence . A lawyer shall provide competent
representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.
[27] R.I.G.L.§ 8-16.1-5. (a) "The governor shall immediately
notify the commission of any vacancy
or prospective vacancy of a justice of the Rhode Island supreme court."
[28]Plunkett v. State, 810 A.2d 787, 789 (R.I. 2002). " Both issues in
this case hinge on questions of statutory interpretation, which this
Court reviews de novo. State v. Fritz, 801 A.2d 679, 682 (R.I.2002).
The first issue is whether the SJIS executive director is an assistant
to the court administrator and thus serves at the pleasure of the Chief
Justice, pursuant to § 8-15-4(a), which provides: "The chief
justice shall appoint a court administrator and such assistants as he
or she deems necessary to aid in the administration of the judicial
system. The administrator and his or her assistants shall serve at the
pleasure of the chief justice."
[29] R.I. State Constitution, Article VI §6. " if any *** judge
shall, after election and engagement, accept any appointment under any
other government, the office under this shall be immediately vacated"
(Emphasis Added.)
[30] 10 U.S.C. § 603. Appointments in time of war or national
emergency (a) In time of war, or of national
emergency declared by the Congress or the President after
November 30, 1980, the President may ppoint any qualified
person (whether or not already a member of the armed
forces) to any officer grade in the Army, Navy, Air Force,
or Marine Corps, except that appointments under this
section may not be made in grades above major general or
rear admiral. Appointments under this section shall be made
by the President alone, except that an appointment in the
grade warrant officer, W-1, shall be made by warrant by the
Secretary concerned.
(b) Any appointment under this section is a
temporary appointment
and may be vacated by the President at any time.
(c)(1) Any person receiving an original appointment
under this section is entitled to service credit as
authorized under section 533 of this title.
(2) An appointment under this section of a person
who is not on active duty becomes effective when that
person begins active duty under that appointment.
(d) An appointment under this section does not
change the permanent status of a member of the armed forces
so appointed. A member who is appointed under this section shall
not incur any
reduction in the pay and allowances to which the member was
entitled, by virtue of his permanent status, at the time of his
appointment under this section.
(e)(1) An officer who receives an appointment to a
higher grade under this section is considered to have
accepted such appointment on the date of the order announcing the
appointment unless he expressly declines the appointment.
(2) An officer who has served continuously since he
subscribed to the oath of office prescribed in section 3331
of title 5 is not required to take a new oath upon
appointment to a higher grade under this section.
(f) Unless sooner terminated, an appointment under
this section terminates on the earliest of the following:
(1) The second anniversary of the
appointment.
(2) The end of the six-month period
beginning on the last day of the war or national emergency
during which the appointment was made.
(3) The date the person appointed is
released from active duty.
DELEGATION OF FUNCTIONS
Functions of President under subsecs. (a) and (b) to
make or vacate certain temporary commissioned appointments
delegated to Secretary of Defense to perform during a time
of war or national emergency, without approval,
ratification, or other action by President, and with
authority for Secretary to redelegate, provided that, during a
national emergency declared by President, exercise of any
such authority be specifically directed by President in
accordance with section 1631 of Title 50, War and National
Defense, and that Secretary ensure any authority so
delegated be accounted for as required by section 1641 of
Title 50, see Ex. Ord. No. 12396, Sec. 2, 3, Dec. 9, 1982,
47 F.R. 55897, 55898, set out as a note under section 301
of Title 3, The President.
[31] 18 U.S.C. § 202. Definitions.
(a) For the purpose of sections 203, 205, 207, 208, and 209 of
this
title the term "special Government employee" shall mean an officer or
employee of the executive or legislative branch of the United States
Government, of any independent agency of the United States or of the
District of Columbia, who is retained, designated, appointed, or
employed to perform, with or without compensation, for not to exceed
one hundred and thirty days during any period of three hundred and
sixty-five consecutive days, temporary duties either on a full-time or
intermittent basis, a part-time United States commissioner, a part-time
United States magistrate, or, regardless of the number of days of
appointment, an independent counsel appointed under chapter 40 of title
28 and any person appointed by that independent counsel under section
594(c) of title 28. ***. Notwithstanding section 29(c) and (d)
<http://loislaw.com/pns/tcdocview.htp?dockey=7632684@USCODE#[fn1]00#[fn1]00>
[fn1] of the Act of August 10, 1956 (70A Stat. 632; 5 U.S.C. §
30r(c) and (d)), a Reserve officer of the Armed Forces, or an officer
of the National Guard of the United States, unless otherwise an officer
or employee of the United States, shall be classified as a special
Government employee while on active duty solely for training. A Reserve
officer of the Armed Forces or an officer of the National Guard of the
United States who is voluntarily serving a period of extended active
duty in excess of one hundred and thirty days shall be classified as an
officer of the United States within the meaning of section 203 and
sections 205 through 209 and 218. A Reserve officer of the Armed Forces
or an officer of the National Guard of the United States who is serving
involuntarily shall be classified as a special Government employee. The
terms "officer or employee" and "special Government employee" as used
in sections 203, 205, 207 through 209, and 218, shall not include
enlisted members of the Armed Forces.
(b) For the purposes of sections 205 and 207 of this title, the
term "official responsibility" means the direct administrative or
operating authority, whether intermediate or final, and either
exercisable alone or with others, and either personally or through
subordinates, to approve, disapprove, or otherwise direct Government
action.
(c) Except as otherwise provided in such sections, the terms
"officer" and "employee" in sections 203, 205, 207 through 209, and 218
of this title shall not include the President, the Vice President, a
Member of Congress, or a Federal judge.
(e) As used in this chapter, the term -
(1) "executive branch" includes each executive agency as defined
in title 5, and any other entity or administrative unit in the
executive branch;
(2) "judicial branch" means the Supreme Court of the United
States; the United States courts of appeals; the United States district
courts; the Court of International Trade; the United States bankruptcy
courts; any court created pursuant to article I of the United States
Constitution, including the Court of Appeals for the Armed Forces, the
United States Court of Federal Claims, and the United States Tax Court,
but not including a court of a territory or possession of the United
States; the Federal Judicial Center; and any other agency, office, or
entity in the judicial branch; and
(3) "legislative branch" means ***.
[32] 18 U.S.C. § 203. Compensation to Members of Congress,
officers, and others in matters affecting the Government
(a) Whoever, otherwise than as provided by law for the proper
discharge of official duties, directly or indirectly -
(1) demands, seeks, receives, accepts, or agrees to receive or
accept any compensation for any representational services, as agent or
attorney or otherwise, rendered or to be rendered either personally or
by another -
(A) at a time when such person is a Member of Congress,*** ; or
(B) at a time when such person is an officer or employee or
Federal judge of the United States in the executive, legislative, or
judicial branch of the Government, or in any agency of the United
States, in relation to any proceeding, application, request
for a ruling or other determination, contract, claim,
controversy, charge, accusation, arrest, or other
particular matter in which the United States is a party or
has a direct and substantial interest, before any
department, agency, court, court-martial, officer, or any
civil, military, or naval commission; or4
(2) knowingly gives, promises, or offers any compensation for
any such representational services rendered or to be rendered at a time
when the person to whom the compensation is given, promised, or
offered, is or was such a Member, Member Elect, Delegate, Delegate
Elect, Commissioner, Commissioner Elect, Federal judge, officer, or
employee;
shall be subject to the penalties set forth in section 216 of
this title.
(b) Whoever, otherwise than as provided by law for the
proper discharge of official duties, directly or indirectly -
(1) demands, seeks, receives, accepts, or agrees to receive or
accept any compensation for any representational services, as agent or
attorney or otherwise, rendered or to be rendered either
personally or by another, at a time when such person is an officer or
employee of the District of Columbia, in relation to any proceeding,
application, request for a ruling or other determination, contract,
claim, controversy, charge, accusation, arrest, or other particular
matter in which the District of
Columbia is a party or has a direct and substantial interest, before
any department, agency, court, officer, or commission; or
(2) knowingly gives, promises, or offers any compensation for
any such representational services rendered or to be rendered at a time
when the person to whom the compensation is given, promised, or
offered, is or was an officer or employee of the District of Columbia;
shall be subject to the penalties set forth in section 216 of this
title.
(c) A special Government employee shall be subject to
subsections (a) and (b) only in relation to a particular matter
involving a specific party or parties -
(1) in which such employee has at any time participated
personally and substantially as a Government employee or as a special
Government employee through decision, approval, disapproval,
recommendation, the rendering of advice, investigation or otherwise;
or (2) which is pending in the department or agency of the
Government in which such employee is serving except that paragraph (2)
of this subsection shall not apply in the case of a special Government
employee who has served in such department or agency no more than sixty
days during the immediately preceding period of three hundred and
sixty-five consecutive days.
(d) Nothing in this section prevents an officer or employee,
including a special Government employee, from acting, with or without
compensation, as agent or attorney for or otherwise ***.
[34] 10 U.S.C. § 973. Duties: Officers on Active Duty; Performance
of Civil
Functions Restricted.
(a) No officer of an armed force on active duty may accept
employment
if that employment requires him to be separated from his organization,
branch, or unit, or interferes with the performance of his military
duties.
(b)(1) This subsection applies -
(A) to a regular officer of an armed force on the active-duty
list ***);
(B) to a retired regular officer of an armed force serving on
active duty under a call or order to active duty for a period in excess
of 270 days; and
(C) to a reserve officer of an armed force serving on active
duty under a call or order to active duty for a period in excess of 270
days.
(2)(A) Except as otherwise authorized by law, an officer to whom
this
subsection applies may not hold, or exercise the functions of, a civil
office in the Government of the United States -
(i) that is an elective office;
(ii) that requires an appointment by the President by and with
the advice and consent of the Senate; or
(iii) that is a position in the Executive Schedule under
sections 5312 through 5317 of title 5.
(B) An officer to whom this subsection applies may hold or
exercise the functions of a civil office in the Government of the
United States that is not described in subparagraph (A) when assigned
or detailed to that office or to perform those functions.
(3) Except as otherwise authorized by law, an officer to whom
this subsection applies by reason of subparagraph (A) of paragraph (1)
may not hold or exercise, by election or appointment, the functions of
a civil office in the government of a State (or of any political
subdivision of a State).
(4)(A) An officer to whom this subsection applies by reason of
subparagraph (B) or (C) of paragraph (1) may not hold, by election or
appointment, a civil office in the government of a State (or of any
political subdivision of a State) if the holding of such office while
this subsection so applies to the officer -
(i) is prohibited under the laws of that State; or
(ii)***
(B) Except as otherwise authorized by law, while an officer
referred to in subparagraph (A) is serving on active duty, the officer
may not exercise the functions of a civil office held by the officer as
described in that subparagraph.
(5) Nothing in this subsection shall be construed to invalidate
any action undertaken by an officer in furtherance of assigned
official duties.
(6) In this subsection, the term "State" includes the District
of Columbia and a territory, possession, or commonwealth of the United
States.
(c) ***.
(d) The Secretary of Defense, and the Secretary of Homeland
Security with respect to the Coast Guard when it is not operating in
the Navy, shall prescribe regulations to implement this section.
(Emphasis Added.)
[35] U.S. Constitution,,Article I, §6. No Senator or
Representative shall, during the time for which he was elected, be
appointed to any civil office under the authority of the United States,
which shall have been created, or the emoluments whereof shall have
been increased during such time: and no person holding any office under
the United States, shall be a member of either House during his
continuance in office.
[36] U.S. Constitution,,Article I, §8 To provide for organizing,
arming, and disciplining, the militia, and for governing such part of
them as may be employed in the service of the United States, reserving
to the states respectively, the appointment of the officers, and the
authority of training the militia according to the discipline
prescribed by Congress;
U.S. Constitution,Article I, §8.And To make all laws which
shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer
thereof.
[37] U.S Constitution, Article II, §3. Powers and Duties of
the President.
He shall from time to time give to the Congress Information of
the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or either of them, and in
Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper;
he shall receive Ambassadors and other public Ministers; he shall take
Care that the Laws be faithfully executed, and shall Commission all the
Officers of the United States.
U.S. Constitution. Article II, §1. The executive power shall be
vested in a President of the United States of America. Article II,
§ 2. The President shall be commander in chief of the Army and
Navy of the United States, and of the militia of the several states,
when called into the actual service of the United States; he may
require the opinion, in writing, of the principal officer in each of
the executive departments, upon any subject relating to the duties of
their respective offices, and he shall have power to grant reprieves
and pardons for offenses against the United States, except in cases of
impeachment. ***
He shall have power, by and with the
advice and consent of the Senate, to make treaties, provided two thirds
of the Senators present concur; and he shall nominate, and by and with
the advice and consent of the Senate, shall appoint ambassadors, other
public ministers and consuls, judges of the Supreme Court, and all
other officers of the United States, whose appointments are not herein
otherwise provided for, and which shall be established by law: but the
Congress may by law vest the appointment of such inferior officers, as
they think proper, in the President alone, in the courts of law, or in
the heads of departments.
[39] A major general is two-star general in the U.S.Army, Air Force, or
Marine. A major general is equivalent to a rear admiral (upper half) in
the US Navy. In Britain a major-general ranks below a Lieutant-General.
The Officer Corps provides leadership and managerial functions, and is
composed of
* Company Grade officers
* Second Lieutenant (2LT; pay grade O-1) - gold bar,
* First Lieutenant (1LT; pay grade O-2) - silver bar,
* Captain (CPT; pay grade O-3) - two silver bars,
* Field Grade officers
* Major (MAJ; pay grade O-4)- gold oak leaf,
* Lieutenant Colonel (LTC; pay grade O-5)- silver oak
leaf,
* Colonel (COL; pay grade O-6)- silver eagle,
* and General officers
* Brigadier General (BG; pay grade O-7)- one star,
* Major General (MG; pay grade O-8)- two stars,
* Lieutenant General (LTG; pay grade O-9)- three
stars,
* General (GEN; pay grade O-10) - four stars
* General of the Army - five stars in a
pentagon
[40] In Re: Sundlun, (Comstat) 585 A.2d 1185, 1187 RI 1991).
The test for what constitutes an "office under the government of the
United States" is whether the incumbent is entitled by the office "to
exercise a portion of the sovereignty of the United States government."
Opinion to the Governor, 83 R.I. 370, 375, 116 A.2d 474, 476 (1955). It
is enough that the incumbent participate or share in the exercise of
federal sovereignty. Id. at 381, 116 A.2d at 479. The justices in 1955
described the purpose of this provision as an ability "to secure the
undivided loyalty and service" of the Governor. Id. at 373, 116 A.2d at
475. In considering Governor Roberts's inquiry, the justices noted that
"the essential question is always to be resolved by a consideration of
the nature, duties and functions of the position in order to determine
whether they entitle the incumbent to exercise some portion of the
sovereignty of another government." Id. at 374, 116 A.2d at 475;
Attorney General ex rel. Adams v. McCaughey, 21 R.I. 341, 344, 43 A.
646, 648 (1899)(quoting Spelling, Extraordinary Relief, § 1780).
[41] 32 C.F.R. § 15.3 Policies and Procedures.
(a) Supervisory and performance evaluation relationships.
Individuals appointed, assigned, detailed, designated or employed in a
capacity related to the conduct of military commission proceedings
conducted in accordance with 32 C.F.R. part 9 and Military Order of
November 13, 2001, "Detention, Treatment, and Trial of Certain
Non-Citizens in the War Against Terrorism," shall be subject to the
relationships set forth in paragraphs (a)(1) through (a)(9) of this
section. Unless stated otherwise, the person to whom an individual
"reports," as set forth in paragraphs (a)(1) through (a)(9) of this
section, shall be deemed to be such individual's supervisor and shall,
to the extent possible, fulfill all performance evaluation
responsibilities normally associated with the function of direct
supervisor in accordance with the subordinate's Military Service
performance evaluation regulations.
***
(7) Review Panel members: Members of the Review Panel shall
report
to the Secretary of Defense. (Emphasis Added)
***
[68 FR 39394, July 1, 2003, effective April 30, 2003]
[42] U.S. Constitution, Article 2, §2. Constitution of the United
States. The President shall be commander in chief of the Army and Navy
of the United States, and of the militia of the several states, when
called into the actual service of the United States; he may require the
opinion, in writing, of the principal officer in each of the executive
departments, upon any subject relating to the duties of their
respective offices, and he shall have power to grant reprieves and
pardons for offenses against the United States, except in cases of
impeachment. He shall have power, by and with the advice and consent of
the Senate, to make treaties, provided two thirds of the Senators
present concur; and he shall nominate, and by and with the advice and
consent of the Senate, shall appoint ambassadors, other public
ministers and consuls, judges of the Supreme Court, and all other
officers of the United States, whose appointments are not herein
otherwise provided for, and which shall be established by law: but the
Congress may by law vest the appointment of such inferior officers, as
they think proper, in the President alone, in the courts of law, or in
the heads of departments.
[43] 66 F.R.12992, November 16, 2001; C.F.R. Title 3-The President,
Military Order of November 13, 2001.
Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.
By the authority vested in me as President and as Commander in Chief of
the Armed Forces of the United States by the Constitution and the laws
of the United States of America, including the Authorization
for Use of Military Force Joint Resolution (Public Law 107-40, 115
Stat. 224) and sections 821 and 836 of title 10, United States Code, it
is hereby ordered as follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have
carried out attacks on United States diplomatic and military personnel
and facilities abroad and on citizens and property within the United
States on a scale that has created a state of armed conflict that
requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism,
including the terrorist attacks on September 11, 2001, on the
headquarters of the United States Department of Defense in the national
capital region, on the World Trade Center in New York, and on civilian
aircraft such as in Pennsylvania, I proclaimed a
national emergency on September 14, 2001 (Proc. 7463, Declaration of
National Emergency by Reason of Certain Terrorist Attacks).
(c) Individuals acting alone and in concert involved in international
terrorism possess both the capability and the intention to undertake
further terrorist attacks against the United States that, if not
detected and prevented, will cause mass deaths, mass injuries, and
massive destruction of property, and may place at
risk the continuity of the operations of the United States Government.
(d) The ability of the United States to protect the United States and
its citizens, and to help its allies and other cooperating nations
protect their nations and their citizens, from such further terrorist
attacks depends in significant part upon using the United States Armed
Forces to identify terrorists and those who support them, to disrupt
their activities, and to eliminate their ability to conduct or support
such attacks.
(e) To protect the United States and its citizens, and for the
effective conduct of military operations and prevention of terrorist
attacks, it is necessary for individuals subject to this order pursuant
to section 2 hereof to be detained, and, when tried, to be tried for
violations of the laws of war and other applicable laws by military
tribunals.
(f) Given the danger to the safety of the United States and the nature
of international terrorism, and to the extent provided by and under
this order, I find consistent with section 836 of title 10, United
States Code, that it is not practicable to apply in military
commissions under this order the principles of law and the rules of
evidence generally recognized in the trial of criminal cases in the
United States district courts.
(g) Having fully considered the magnitude of the potential deaths,
injuries, and property destruction that would result from potential
acts of terrorism against the United States, and the probability that
such acts will occur, I have determined that an extraordinary emergency
exists for national defense purposes, that this emergency
constitutes an urgent and compelling government interest, and that
issuance of this order is necessary to meet the emergency.
Sec. 2. Definition and Policy.
(a) The term "individual subject to this order" shall mean any
individual who is not a United States citizen with respect to whom I
determine from time to time in writing that:
(1) there is reason to believe that such
individual, at the relevant times, (i) is or was a member of the
organization known as al Qaida; (ii) has engaged in, aided or abetted,
or conspired to commit, acts of international terrorism, or acts in
preparation therefor, that have caused, threaten to cause, or have as
their aim to cause, injury to or adverse effects on the United States,
its citizens, national security, foreign policy, or economy; or
(iii) has knowingly harbored one or more individuals described in
subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and
(2) it is in the interest of the United States
that such individual be subject to this order.
(b) It is the policy of the United States that the Secretary of Defense
shall take all necessary measures to ensure that any individual subject
to this order is detained in accordance with
section 3, and, if the individual is to be tried, that such individual
is tried only in accordance with section 4.
(c) It is further the policy of the United States that any individual
subject to this order who is not already under the control of the
Secretary of Defense but who is under the control of any other officer
or agent of the United States or any State shall, upon delivery of a
copy of such written determination to such officer or agent, forthwith
be placed under the control of the Secretary of Defense.
Sec. 3. Detention Authority of the Secretary of Defense.
Any individual subject to this order shall be - (a)
detained at an appropriate location designated by the Secretary
of Defense outside or within the United States; (b) treated humanely,
without any adverse distinction based on race, color, religion, gender,
birth, wealth, or any similar criteria; (c) afforded adequate food,
drinking water, shelter, clothing, and medical treatment;
(d) allowed the free exercise of religion consistent with the
requirements of such detention; and (e) detained in accordance with
such other conditions as the Secretary of Defense may prescribe.
Sec. 4. Authority of the Secretary of Defense Regarding Trials of
Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by
military commission for any and all offenses triable by military
commission that such individual is alleged to have committed, and
may be punished in accordance with the penalties provided under
applicable law, including life imprisonment or death.
(b) As a military function and in light of the findings in section 1,
including subsection (f) thereof, the Secretary of Defense shall issue
such orders and regulations, including orders for the appointment of
one or more military commissions, as may be necessary to carry out
subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this section
shall include, but not be limited to, rules for the conduct of the
proceedings of military commissions, including pretrial, trial, and
post-trial procedures, modes of proof, issuance of process, and
qualifications of attorneys, which shall at a minimum
provide for -
(1) military commissions to sit at any time
and any place, consistent with such guidance regarding time and place
as the Secretary of Defense may provide;
(2) a full and fair trial, with the military
commission sitting as the triers of both fact and law;
(3) admission of such evidence as would, in
the opinion of the presiding officer of the military commission (or
instead, if any other member of the commission so requests at the time
the presiding
officer renders that opinion, the opinion of the commission rendered at
that time by a majority of the commission), have probative value to a
reasonable person;
(4) in a manner consistent with the protection
of information classified or classifiable under Executive Order 12958
of April 17, 1995, as amended, or any successor Executive Order,
protected by
statute or rule from unauthorized disclosure, or otherwise protected by
law, (A) the handling of, admission into evidence of, and access to
materials and information, and (B) the conduct, closure of, and
access to proceedings;
(5) conduct of the prosecution by one or more
attorneys designated by the Secretary of Defense and conduct of the
defense by attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of
two-thirds of the members of the commission present at the time of the
vote, a majority being present;
(7) sentencing only upon the concurrence of
two-thirds of the members of the commission present at the time of the
vote, a majority being present; and
(8) submission of the record of the trial,
including any conviction or sentence, for review and final decision by
me or by the Secretary of Defense if so designated by me for that
purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of
Defense.Departments, agencies, entities, and officers of the United
States shall, to the maximum extent permitted by law, provide to the
Secretary of Defense such assistance as he may request to implement
this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in section 1,
the Secretary of Defense shall issue such orders and regulations as may
be necessary to carry out any of the provisions of this order.
(b) The Secretary of Defense may perform any of his functions or
duties, and may exercise any of the powers provided to him under this
order (other than under section 4(c)(8) hereof) in accordance
with section 113(d) of title 10, United States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to -
(1) authorize the disclosure of state secrets
to any person not otherwise authorized to have access to them;
(2) limit the authority of the President as
Commander in Chief of the Armed Forces or the power of the President to
grant reprieves and pardons; or
(3) limit the lawful authority of the
Secretary of Defense, any military commander, or any other officer or
agent of the United States or of any State to detain or try any person
who is not an
individual subject to this order.
(b) With respect to any individual subject to this order -
(1) military tribunals shall have exclusive
jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to
seek any remedy or maintain any proceeding, directly or indirectly, or
to have any such remedy or proceeding sought on the
individual's behalf, in
(i) any court of the United States, or any State thereof, (ii) any
court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right,
benefit, or privilege, substantive or procedural, enforceable at law or
equity by any party, against the United States, its departments,
agencies, or other entities, its officers or employees, or any other
person.
(d) For purposes of this order, the term "State" includes any State,
district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense, at any
time hereafter, to transfer to a governmental authority control of any
individual subject to this order. Nothing in this order shall
be construed to limit the authority of any such governmental authority
to prosecute any individual for whom control is transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
George Bush
THE WHITE HOUSE,
November 13, 2001.
[FR Doc. 01-28904 Filed 11-15-01; 8:56 am]
[44] 68 F.R. 39374, 39378,39379,
Procedures for Trials by Military Commissions of Certain
Non-United States Citizens in the War Against Terrorism; 32 C.F.R.
§t 9.7.(h)(1)(2)(3)(4)(5)(6);July 1, 2003.)
***
(h) Post-trial procedures-(1) Record of Trial.
Each Commission shall make a verbatim transcript of its proceedings,
apart from all Commission deliberations, and preserve all evidence
admitted in the trial (including any sentencing proceedings) of each
case brought before it, which shall constitute the record of trial. The
court reporter shall prepare the official record of trial and submit it
to the Presiding Officer for authentication upon completion. The
Presiding Officer shall transmit the authenticated record of trial to
the Appointing Authority. If the Secretary of
Defense is serving as the Appointing Authority, the record shall be
transmitted to the Review Panel constituted under paragraph (h)(4) of
this section. (Emphasis Added)
(2) Finality of findings and sentence. A Commission finding as to a
charge and any sentence of a Commission becomes final when the
President or, if designated by the President, the Secretary of
Defense makes a final decision thereon pursuant to section 4(c) (8) of
the President's Military Order and in accordance with paragraph (h) (6)
of this section. An authenticated finding of Not Guilty as to
a charge shall not be changed to a finding of Guilty. Any sentence made
final by action of the President or the Secretary of Defense shall be
carried out promptly. Adjudged confinement shall begin
immediately following the trial.(Emphasis Added.)
(3) Review by the Appointing Authority. If the Secretary of Defense is
not the Appointing Authority, the Appointing Authority shall promptly
perform an administrative review of the record of
trial. If satisfied that the proceedings of the Commission were
administratively complete, the Appointing Authority shall transmit the
record of trial to the Review Panel constituted under paragraph
(h)(4) of this section. If not so satisfied, the Appointing Authority
shall return the case for any necessary supplementary proceedings. (68
F.R.39379, (July 1, 2003).
(4) Review Panel. The Secretary of Defense shall designate a Review
Panel consisting of three Military Officers, which may include
civilians commissioned pursuant to section 603 of title 10,
United States Code. At least one member of each Review Panel shall have
experience as a judge. The Review Panel shall review the record of
trial and, in its discretion, any written submissions from the
Prosecution and the Defense and shall deliberate in closed conference.
The Review Panel shall disregard any variance from procedures specified
in this part or elsewhere that would not
materially have affected the outcome of the trial before the
Commission. Within thirty days after receipt of the record of trial,
the Review Panel shall either:
(i) Forward the case to the Secretary of Defense with a recommendation
as to disposition, or (ii) Return the case to the Appointing Authority
for further proceedings, provided that a majority of the Review Panel
has formed a definite and firm conviction that a material error of law
occurred.
(5) Review by the Secretary of Defense. The Secretary of Defense shall
review the record of trial and the recommendation of the Review Panel
and either return the case for further proceedings or, unless making
the final decision pursuant to a Presidential designation under section
4(c)(8) of the President's Military Order, forward it to the President
with a recommendation as to disposition.
(6) Final decision. After review by the Secretary of Defense, the
record of trial and all recommendations will be forwarded to the
President for review and final decision (unless the President has
designated the Secretary of Defense to perform this function). If the
President has so designated the Secretary of Defense, the Secretary may
approve or disapprove findings or change a finding of Guilty to a
finding of Guilty to a lesser-included offense, or mitigate, commute,
defer, or suspend the sentence imposed or any portion thereof. If the
Secretary of Defense is authorized to render the final decision, the
review of the Secretary of Defense under paragraph (h)(5) of this
section shall constitute the final decision.
[45] 68 FR 39374,39378,39379. Procedures for Trials by Military
Commissions of Certain Non-United States Citizens in the War Against
Terrorism; 32 C.F.R. Part 9,. § 9.6 Conduct of the trial (g)
(July 1, 2003).
32 C.F.R.9.6(g) Sentence. Upon conviction of an Accused, the Commission
shall impose a sentence that is appropriate to the offense or offenses
for which there was a finding of Guilty, which sentence may include
death, imprisonment for life or for any lesser term, payment of a fine
or restitution, or such other lawful punishment or condition of
punishment as the Commission shall determine to be proper. Only a
Commission of seven members may sentence an Accused to death. A
Commission may (subject to rights of third parties) order confiscation
of any property of a convicted Accused, deprive that Accused of any
stolen property, or order the delivery of such property to the United
States for disposition.
[46] 66 F.R.12992 ,November 16, 2001; C.F.R. Title 3-The President,
Sec. 7. (b) With respect to any individual subject to this order -
(1) military tribunals shall have exclusive
jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to
seek any remedy or maintain any proceeding, directly or indirectly, or
to have any such remedy or proceeding sought on the
individual's behalf, in
(i) any court of the United States, or any State thereof, (ii) any
court of any foreign nation, or (iii) any international tribunal.
(c) This order is not intended to and does not create any right,
benefit, or privilege, substantive or procedural, enforceable at law or
equity by any party, against the United States, its departments,
agencies, or other entities, its officers or employees, or any other
person.
(d) For purposes of this order, the term "State" includes any State,
district, territory, or possession of the