Dec. 7, 2006 — After striking out in the V.I. courts, Sen. Ronald E. Russell is now calling for federal court judges to step up and take control of a lawsuit that will ultimately determine where a local Supreme Court will be established.
The suit, filed June 28 by Gov. Charles W. Turnbull, challenges the Senate's decision to place the court on St. Croix. Russell has continuously protested against Turnbull's action and in late August sought to have the case removed from under the auspices of the V.I. Superior Court.
Russell has said he filed the motion to remove because the suit asks the court to interpret provisions included in the federal Organic Act, which "should fall" under the jurisdiction of the District Court.
Superior Court Judge Leon Kendall, however, denied the motion in late October, as senators were preparing to confirm the first set of Supreme Court justices. Subsequently, Kendall also ruled against a motion to dismiss filed the by the Legislature's attorneys (See "Stage Set for Battle Over Location of Supreme Court").
Kendall's ruling said that he would be hearing oral arguments on the case beginning Dec. 13.
In this latest twist in the Supreme Court saga, Russell has requested that the District Court issue an emergency writ of mandamus, or direct order, transferring the case from local to federal court. When contacted Thursday, Russell said the request called for "extraordinary relief," as it seeks to move the suit from a lower to a higher court.
He added that the federal court could choose to grant the writ of mandamus if it agrees with "reasons laid out in my request."
Russell said he also had concerns with the fact that Kendall, a Turnbull appointee, is presiding over the case, calling it a "conflict of interest."
"Petitioner [Russell] contends that absent an issuance of a writ by this court, the governor will continue to violate the duly enacted law of the land by using the judiciary, in the person of Judge Leon Kendall, to violate the separation of powers doctrine; to infuse bias and collusion in derogation of due process, justice and fairness; and to forever deprive Petitioner and the other litigants involved in this matter of the fundamental due process right to present their case before an impartial tribunal," Russell's request states.
The document also says that Kendall, in dealing with the suit, has not "followed the rules of civil procedure."
"It appears that Judge Kendall, as a Turnbull appointee, is simply doing the bidding of his boss, without regard to the fair administration of justice. It is plain from Judge Kendalls rulings that he is unlikely 'to maintain that calm detachment necessary for fair adjudication,'" Russell wrote.
On Thursday, Russell also stated that other "issues have come to the surface" regarding Turnbull's recent appointment of three justices to the Supreme Court.
In late October, Turnbull sent notice to Senate President Lorraine L. Berry saying that he was calling a special session so senators could act on the three nominations, which were submitted to the Legislature in late July.
While senators subsequently approved the appointment of judges Rhys S. Hodge, Maria M. Cabret and Ive A. Swan, they also spoke out against the special session procedure, saying that justices do not yet have to be confirmed since a local Supreme Court has not been established.
"We have to explore whether or not the governor followed the proper procedure in getting the justices confirmed before the Legislature," Russell said Thursday. "The request also points out some of those discrepancies."
Russell's request specifically touches upon several provisions included in the V.I. Code, which state, among other things, that:
–the governor may not send a nomination for a justice of the Supreme Court to the Legislature for confirmation without having given seven days public notice in a newspaper of general circulation designated pursuant to section 251(a) of title 31, of this Code.; and
–the governor shall submit nominations for the associate justices of the Supreme Court to the Legislature within 90 days after the effective date of any act appropriating monies to fund the operations of the Supreme Court and shall at the time of submission designate one of the justices to serve an initial term of four years as the initial chief justice of the Supreme Court.
Russell maintains that both sections were violated, since nominees were not submitted 90 days after Turnbull sent down a bill appropriating money for the construction of a court. Additionally, he said that Turnbull's appropriation bill earmarks funds for the establishment of a court on St. Thomas, despite the fact that senators unanimously voted to override Turnbull's veto of a bill calling for the court to be placed on St. Croix.
"This is all very problematic," Russell said Thursday. "And we're going to explore it and attempt to deal with it."
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