Nov. 5, 2007 — The Commission on Judicial Disabilities is asking the District Court to dismiss V.I. Superior Court Leon Kendall's action that seeks to prevent the commission from conducting hearings into complaints filed against him.
The commission's attorney, Maria Tankenson Hodge, has filed a motion that Kendall's case be dismissed. She argues that Kendall's contention that the law establishing the commission violates the separation of the powers doctrine is without merit.
Last month, 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 contends that such hearings would be "unconstitutional" because they would violate the separation of powers in the Revised Organic Act of 1954.
According to previous stories in The Source, the commission has never announced an intention to "remove" Kendall from the court; it has announced its intention to hold hearings on the matter. The commission is extremely close-mouthed about its activities.
Commission Chairman Sen. Ronald Russell announced in September that the commission "should" be holding hearings in complaints filed against Kendall the third week in October. (See "Judicial Commission Ready to Investigate Complaints Against Judge Kendall.")
Kendall contends that the commission is not a part of the judiciary: "The Legislature created the commission and constituted it as a group wholly outside the judicial branch of government, consisting of appointees of the Legislature, the governor and the private bar, but not the judiciary, and endowed it with the power to remove a judge of the Superior or Supreme Court on far-ranging and ill-defined grounds."
Hodge says, "Contrary (to Kendall's allegations), the commission is not a group 'wholly outside of the judicial branch of government.' In fact, under the plain language of the law, the commission was expressly created as an entity within the judicial branch."
Further, Hodge points out, the act that created the commission is the same act that created the V.I. Territorial Court (now Superior Court of the Virgin Islands) itself. The commission consists of two members appointed by the governor, two members appointed by the Legislature president and one member appointed by the V.I. Bar Association.
"The fact that the commission's members are, for the most part, named by official from other branches of government, is no more significant that the fact that the judges, themselves, who sit on the Superior Court and the Supreme Court, are named by the governor and confirmed by the Legislature," Hodge says. "Having been so appointed, they become members of the judicial branch."
Kendall's assertion that the power to discipline judges must always be limited to the judicial branch, Hodge says, is not essentially true. Most jurisdictions in the U.S. have an entity with the authority to regulate judicial conduct, and their makeup and powers vary, she says.
"Certainly, many jurisdictions recognize the power of non-judicial bodies to remove judges for cause, the most common such method being impeachment," Hodge writes.
Kendall says the V.I. commission "closely parallels" a New Hampshire Judicial Conduct Commission, which was "struck down by the Supreme Court of New Hampshire." The court found that the "power to regulate the conduct of judge is a 'judicial power' which was neither expressly granted to the legislature in the state constitution nor necessary for it to exercise power expressly granted to it, it was the power exclusive to the judiciary."
Hodge notes, "… the limitations discussed in the New Hampshire case involving punishment short of removal would have no application." She says, "There is no equivalent constitutional provision in the Organic Act that would give to the judicial branch of the V.I. government the exclusive power to punish improper judicial conduct, short of removal, similar to that found in New Hampshire."
The law now allows the commission the power to investigate complaints against judge and the removal of a judge "for cause." An order of removal entered by the commission is effective upon filing with the District Court where the basis for removal is a felony, Hodge writes.
"An order for the commission for willful misconduct in office, willful and persistent failure to perform judicial duties, or any other conduct … is only effective upon 'affirmance of an appeal' from the order of removal filed in the District Court, or upon expiration of the time within which such an appeal may be taken."
In other words, if a decision to remove a judge for reasons other than felony, the commission must file an order in federal court, and the judge has 20 days to petition the court to review the order.
Kendall's detractors have contended that the judge has been soft on violent criminals, frequently allowing defendants accused of violent crimes to return to the community with little or no bail.
Kendall's attorneys contend that the judge strictly follows the Bail Reform Act. They note that none of his bail decisions have been repealed by the office of the V.I. Attorney General.
Kendall's attorney, Robert King, told the Source earlier this year, "Judge Kendall has been unfairly tried by the media and the victims' advocacy groups, and hung out to dry by people who don't know anything about the law. Not one member of the legal community in the territory has spoken out, not one judicial official, and the reason for that is that Kendall is right."
(See "Attorney for Controversial Jurist: 'Judge Kendall Has Been Unfairly Tried.'")
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