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District Judge Upholds Nominations of Supreme Court Justices

Jan. 5, 2007 — Sen. Ronald E. Russell's attempt to have the nominations of three V.I. Supreme Court justices dismissed was shot down by V.I. District Court Judge Curtis Gomez in a ruling handed down late Thursday.
Gomez's ruling will ultimately allow judges Maria M. Cabret, Rhys S. Hodge and Ive A. Swan to begin promulgating rules and regulations for the Supreme Court, which has not yet been established, as a lawsuit which will decide where the court will be located is still pending in Superior Court.
Cabret, Hodge and Swan were first confirmed by the Senate in late September and subsequently sworn in as the territory's first Supreme Court justices in a ceremony held last month on St. Croix.
Russell's attempts to keep the ceremony from proceeding were also stalled by Gomez, who struck a deal with Russell and attorneys representing the government in a recent meeting held on St. Thomas. In exchange for allowing the justices to be sworn in, Russell was given the opportunity to present his case before Gomez in a hearing held early Wednesday.
Russell's complaint calls for the court to throw out the three nominations, which were submitted by Gov. Charles W. Turnbull in July and considered by the Senate during a special session in October. During this time, Russell said that Turnbull did not submit the nominations in accordance with V.I. law, which stipulates that nominations for Supreme Court justices must be sent down to the Legislature 90 days after the enactment of any bill appropriating money for the establishment of a court.
The first bill appropriating funds for a Supreme Court building was passed by the Senate in November of 2005 and subsequently signed in law by Turnbull.
In his ruling, Gomez wrote that while Turnbull did exceed the 90-day nomination period, V.I. law does not lay out a "cause of action" or "remedy" for the "governor's failure to timely nominate the justices."
Russell also opposed the fact that a special session was called to consider the nominations and asked the court to declare that Turnbull violated the "separation of powers doctrine" when he decided to convene the meeting.
Specifically, Russell states that the "governor does not have the authority to force the Legislature into special session to consider nominations that are before the Legislature for advice and consent."
Gomez writes in his ruling that in order to consider the claim, the court must determine whether Russell has standing as a taxpayer or citizen of the territory. "Plaintiffs who sue as 'citizens' must assert a particularized injury to have standing to obtain relief in federal courts," Gomez states. "But Russell has not asserted that he has suffered a personal injury. He seems to simply assert that the governor has violated the separation of powers — a doctrine which benefits all citizens equally."
In addition to saying that Russell lacks status as a taxpayer and citizen, Gomez also says that the court would not be able to recognize Russell's standing as a legislator.
"Russell … had the opportunity to questions the nominees and vote on the confirmations," Gomez writes. "Russell voted in favor of confirming all three justices."
Gomez adds that Russell, as an individual senator, would not be able to "vindicate the rights" of the Legislature during the nomination process. Gomez states that since Russell put his objections on the record during the special session, the Legislature could have subsequently "sent the nominations to committee, ended the special session, or voted against the nominees."
Gomez states that the Legislature, after being advised of Russell's concerns, decided to proceed with a vote, which resulted in the unanimous confirmation of all three justices.
The ruling includes a quote from Russell, who says, "The motion [to send the nominations back to committee] failed because the governor had already lobbied some of the senators, and it was an election pending in 10 days that allowed the nominations to go forward."
In concluding, Gomez writes, "It would be impossible for the court to undertake its own independent resolution of Russell's claims without demonstrating a lack of respect to the Legislature … Accordingly, the court will dismiss the complaint."
Russell, who took to the radio airwaves after the ruling came down, said he "disagreed" with Gomez's opinion and plans to appeal the decision. He also said that he would be waiting to see whether Gov. John deJongh plans to dismiss the pending lawsuit which challenges the Senate's decision to place the Supreme Court on St. Croix.
The suit, originally filed by Turnbull in late July, now names deJongh as the plaintiff.
The Source had originally reported that deJongh was the defendant, as reflected in recent court documents. However, the court papers relied on were incorrect. The Source regrets the error.
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