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Sen. Russell To Seek U.S. Supreme Court Review of Third Circuit Decision

June 24, 2007 — The battle to get the local Supreme Court established on St. Croix is not finished yet, says Sen. Ronald E. Russell, who explained over the weekend that a ruling recently handed down by the U.S. Court of Appeals for the Third Circuit can only help the Legislature win the case that's still pending on appeal in District Court.
When contacted Sunday afternoon, Russell said the ruling, issued early last week, upholds a recent decision rendered by the federal District Court, which stipulates that Russell, as an individual senator, is not legally qualified to sue the government. He explained that the ruling sets a precedent that can now be applied to Gov. John deJongh, Jr., who is listed as the plaintiff in a suit which challenges the Legislature's decision to place the court on St. Croix.
The suit against the Legislature was initially filed last July by former Gov. Charles W. Turnbull, whose attorneys have argued that sections of the Revised Organic Act prohibit the court from being established anywhere other than Charlotte Amalie, the territory's designated "seat of government."
In a ruling issued earlier this year, V.I. Superior Court Judge Leon Kendall upheld Turnbull's argument. However, the Legislature has since decided to appeal the decision, and deJongh, as the territory's new governor, has been substituted as a party in the case.
Acting independently, Russell has also filed a variety of suits against the government, which, among other things, have challenged the process by which Turnbull nominated the territory's first Supreme Court justices. In a hearing held early last month, Russell's attorney and wife, Royette Russell, explained to a panel of judges from the 3rd Circuit that Turnbull violated the separation of powers doctrine when he called the Legislature into a special session to consider the nominees.
The husband-and-wife team has also said that Turnbull submitted the nominations after a specified 90-day period of time, thus forcing the Legislature to act on the nominations without having a chance to properly vet the justices through the Senate's Rules and Judiciary Committee.
While the federal District Court ruled that Russell lacked standing needed to file an individual suit against the government, the 3rd Circuit vacated the decision in March, giving Russell another chance to argue his case.
Russell was dealt a blow, however, when the 3rd Circuit’s recent ruling upheld the District Court's decision. In an 18-page opinion released last week, the three-member panel of judges stated that Turnbull's call for a special session did not prevent senators from considering, voting on or confirming the nominees.
"Sen. Russell cannot maintain here that the governor's action in calling a special session impaired his right, or that of his legislative colleagues, to advice and consent regarding the judicial nominees," the opinion states. "The action afforded the Legislature an additional opportunity to confirm or not confirm of which the Legislature availed itself by voting unanimously to confirm."
Adding that the Senate could have decided to defer the vote on the justices' nominations, the opinion also states that Russell's "legislative power" as chair of the Senate's Rules and Judiciary Committee was not "usurped" when Turnbull decided to have the nominations go directly before the full Senate instead of being considered through the normal committee process.
The 3rd Circuit held that Russell "has not alleged an injury in fact and that he lacks standing to bring both counts of his complaint."
While Russell said Sunday that he is a bit disappointed by the decision, he added that the federal panel has also set the standard by which the Legislature's case, now on appeal in District Court, will be considered.
"Because this is a precedent-setting case that says I, as an elected official, don't have standing to sue the executive branch, I don't believe that the executive branch is going to have the standing needed to sue the Legislature," Russell said. "And what's good for the goose is good for the gander. It may have been a loss for me, but it is a victory in the end for getting the court built on St. Croix."
Russell added that he will be appealing the 3rd Circuit’s decision by taking his case to the U.S. Supreme Court.
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