Impeach Frank Williams?

Kevin McKenna, president of the 1986 Rhode Island Constitutional Convention, writes in today’s Projo that he believes Frank Williams’ participation in the traffic tribunal magistrate selection process created by the General Assembly to be an impeachable offense…

Chief Justice Frank Williams’s Oct. 11 “appointment” of William R. Guglietta, chief legal counsel to Majority Leader Gordon D. Fox (D.-Providence), to the position of chief magistrate of the state Traffic Tribunal was an impeachable act, a violation of the constitutional principle of separation of powers, and a violation of the chief justice’s oath to enforce the state constitution.
A chief justice is not a governor. Constitutional officers are prohibited from exercising the power of other constitutional officers. In the 2004 separation of powers constitutional amendments, the governor was delegated by the electors the same powers of appointment as a U.S. president to appoint principal officers of the state.
I agree with Mr. McKenna that letting judges appoint other judges (and a magistrate is a judge) is a violation of the principle of separation of powers, but I’m not sure if Chief Justice Williams playing along with the flawed rules created by the legislature rises to the level of an impeachable offense.
Mr. McKenna does suggest a number of other remedies to the problem of the judicial branch exercising executive power certainly worthy of public consideration…
  • Urge your governor not to fund unconstitutional appointments. Surely funds for unconstitutional appointments could be better used for other purposes, such as funding for abandoned children in the state’s custody.
  • Urge your state senator not to approve appointments to unconstitutional positions.
  • Urge your representative and senator to repeal and amend the laws delegating the governor’s budgetary and appointment powers to the chief justice and to other chief judges and to the chief magistrate.
  • Vote in 2008 only for a state representative and senator who supports constitutional judicial reform.

UPDATE:
Commenter “Brassband” disagrees with Mr. McKenna’s position on the constitutionality of judges appointing magistrates, and even my suggestion that the legislature has created a process that’s flawed, making the eminently reasonable argument that “unconstitutional” must be defined in terms of what’s in the Constitution…
McKenna is not reading the R.I. Constitution correctly.
The recent “separation of powers” amendments specifically provided in Art. 9, sec. 5 that the General Assembly could assign the appointment power for lesser officers with the judicial branch in this manner:

Section 5. Powers of appointment. — The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.
This is completely consistent with Article II, sec. 2 of the U.S. Constitution, which similarly permits Congress to authorize such appointments to be made by “the courts of law.”
As I have pointed out in other comments, in the federal system, U.S. District Judges appoint Magistrates within their own Districts, and the R.I. provision is obviously patterned after that system.
The voters specifically adopted a system based on the federal model, and, whether McKenna likes it or not, the magistrate appointment system fits that pattern.

UPDATE REBUTTAL:
Contra “Brassband”, commenter “David” defends Mr. McKenna’s position on the basis that Rhode Island magistrates are true judges while Federal magistrates are not…
Federal magistrates preside mainly over preliminary hearings relating to evidentiary and discovery issues and their decisions are not effective until reviewed and approved by the district court judge responsible for the case. The judge is, of course, nominated by the president and approved by the senate in conformance with the Constitution.
Rhode Island magistrates, by contrast, have all the powers of judges as Mr. McKenna pointed out in his op-ed. The actions of traffic tribunal magistrates have the same legal effect as the acts of any trial court judge in the state and are reviewable only by appeal to the Supreme Court. Rhode Island magistrates are judges in all but name and, with apologies to Shakespeare, that which we call a judge by any other name must be approved by the judicial nominating commission, the governor and the senate.

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brassband
brassband
13 years ago

McKenna is not reading the R.I. Constitution correctly.
The recent “separation of powers” amendments specifically provided in Art. 9, sec. 5 that the General Assembly could assign the appointment power for lesser officers with the judicial branch in this manner:
———————–
Section 5. Powers of appointment. — The governor shall, by and with the advice and consent of the senate, appoint all officers of the state whose appointment is not herein otherwise provided for and all members of any board, commission or other state or quasi-public entity which exercises executive power under the laws of this state; but the general assembly may by law vest the appointment of such inferior officers, as they deem proper, in the governor, or within their respective departments in the other general officers, the judiciary or in the heads of departments.
———————
This is completely consistent with Article II, sec. 2 of the U.S. Constitution, which similarly permits Congress to authorize such appointments to be made by “the courts of law.”
As I have pointed out in other comments, in the federal system, U.S. District Judges appoint Magistrates within their own Districts, and the R.I. provision is obviously patterned after that system.
The voters specifically adopted a system based on the federal model, and, whether McKenna likes it or not, the magistrate appointment system fits that pattern.

David
David
13 years ago

Brassband is ignoring the critical differences between federal and Rhode Island magistrates. Federal magistrates preside mainly over preliminary hearings relating to evidentiary and discovery issues and their decisions are not effective until reviewed and approved by the district court judge responsible for the case. The judge is, of course, nominated by the president and approved by the senate in conformance with the Constitution.
Rhode Island magistrates, by contrast, have all the powers of judges as Mr. McKenna pointed out in his op-ed. The actions of traffic tribunal magistrates have the same legal effect as the acts of any trial court judge in the state and are reviewable only by appeal to the Supreme Court. Rhode Island magistrates are judges in all but name and, with apologies to Shakespeare, that which we call a judge by any other name must be approved by the judicial nominating commission, the governor and the senate.

brassband
brassband
13 years ago

David —
The point is not what the magistrate’s particular powers are, the point is that the appointment authority has been assigned to the judiciary in both the state and federal systems.
If you want to focus on what judges do, then you should also be concerned with the numerous executive branch officials who exercise judicial power — they’re called administrative law judges in the federal system and generally hearing officers in the state system. Their factfinding is subject to very limited review in the judicial branch, and is in large measure unreviewable. This ought to offend anyone who believes in a pure “separation of powers” doctrine, but it’s been in place in the purportedly pristine federal system for generations.
The simple reality is that the R.I. Constitution permits the General Assembly to assign this appointment power to the Chief Justice. If you don’t like it, then you need to work to achieve further amendments to the Constitution; it’s not fair to defame the Chief Justice for discharging a duty that was lawfully assigned to him.

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