The 3rd Circuit Court of Appeals ruled this week that the Virgin Islands Commission on Judicial Disabilities violates the separation of the powers principles of the three branches of government inherent in the Revised Organic Act of 1954, the territory’s de facto constitution.
The decision comes after more than a year in the federal court and after almost two years of litigation in local courts when the commission announced it would investigate complaints against Superior Court Judge Leon Kendall.
The commission was established by the V.I. Legislature in 1976, but commission chairman, former Sen. Ronald Russell, said the body had rarely met. It was vested with the authority to remove a judge from the bench for a felony conviction, or if the commission decides a judge has exercised willful misconduct in office, willful and persistent failure to perform judicial duties or brings the judiciary into disrepute.
The decisions of Kendall, however, activated the long dormant commission in 2007. Kendall’s rulings, largely aimed at his bail decisions, stirred public protest, bringing the commission to life.
In October 2007, Kendall asked the District Court for an injunction preventing the members of the commission from conducting a hearing to remove him from the Superior Court of the V.I. based on "alleged complaints about his rulings in particular cases …." His filing contended that such hearings would be "unconstitutional" because they would violate the separation of powers in the Revised Organic Act of 1954.
The Commission was comprised of appointees of the Legislature, the governor and the V.I. Bar Association, but no members of the judiciary. Kendall argued that there can be no greater threat to the independence of the judiciary than to permit the legislative branch of government to seize for itself the power to sit in judgment on decisions rendered by a member of the judiciary
The commission had scheduled hearings in December 2008 that would address two of the three complaints against Kendall. Gomez said he would issue a ruling by Jan. 15, 2008, on the constitutionality of the commission. In the meantime, he asked the commission not to proceed with hearings.
Gomez ruled in a 42-page opinion in January 2008 that the territory’s Revised Organic Act of 1954 gives the V.I. Legislature no authority to remove judges and the Legislature cannot vest that authority in another body, effectively dissolving the commission.
On Monday, the 3rd Circuit Court of Appeals, in a 44-page opinion by Appellate Judge Kent Jordan, affirmed Gomez’s ruling.
"Because the Legislature purported to authorize the Commission to exercise the power to remove judges without itself having such power, we agree with the District Court that
the Commission Act violates the separation of powers principles inherent in the ROA," Jordan wrote.
"For the foregoing reasons, we conclude that the District Court was correct to not abstain from hearing Judge Kendall’s claims and to hold that the provisions of the Act empowering the Commission to remove Superior Court judges violate the separation of powers principle of the ROA. In reaching that conclusion, we do not hold that Superior Court judges are beyond discipline or removal in the Virgin Islands.
"The territorial judiciary has inherent authority to regulate the conduct of its judges, the limits of which authority we do not now consider. Similarly, because the issue is not before us, we do not now consider whether the Commission Act would pass muster under the ROA if Commission orders were subject to review by the Supreme Court of the Virgin Islands."
The ruling concluded, "We now hold only that the Commission Act in its present form violates the separation of powers principle of the ROA, and, accordingly, we will affirm the judgment of the District Court."
However, Jordan encouraged the V.I. Legislature to take up the question of how appeals from such orders should be handled.
Though Judges Jordan and Walter Stapleton affirmed the ruling, Judge Michael Fisher did not. His dissenting opinion boiled down to basically stating that the District Court should not have abstained to begin with. Fisher said federal courts should not interfere in ongoing state or territorial proceedings.
Since the territory currently is without a panel of judiciary oversight, the issue is now how to proceed.
Attorney Tom Bolt, an American Bar Association delegate, said Wednesday, "It is incumbent upon the V.I. to address this now. The issue with Judge Kendall – whose appointment is up in October and who has not offered himself for reappointment – is basically, moot."
Bolt said "there are a number of organizations within the ABA, who would be able to address this concern."
Through a colleague, Bolt said he had a suggestion from Cynthia Gray, director of the Center for Judicial Ethics, American Judicature Society, who said that the V.I. Supreme Court could create its own commission, or the V.I. Legislature could provide for review in the Supreme Court for Commission decisions.
Senate President Louis Hill said through his chief of staff, Colette Monroe, that he will issue a statement Thursday on the issue.
Kendall, in a statement issued Tuesday, said, ""I am gratified to have played a role in vindicating the independence of the judiciary of the Virgin Islands."
Commission attorney Maria Tankenson Hodge is off-island, and unavailable for comment. Attorney Russell did not return calls Wednesday. Speaking from the office of V.I. Bar Association president Pamela L. Colon, Hinda Cabron said Colon had received the ruling late Wednesday, and would comment on the Thursday.
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