Aug. 8, 2003 – The nomination of Leon Kendall to Territorial Court didn't exactly sail out of the Rules Committee Thursday night; it took four and a half hours of testimony, little of it about Kendall's opinions or philosophy about the job he may be doing if he passes the full Senate.
It wasn't until two-thirds of the way through the hearing, when Sen. Celestino White, who is not a member of the Rules Committee, showed up and asked Kendall his opinion on mandatory minimum sentencing, that any real information about Kendall's views saw even momentary light of day.
What the poll said, and the response to it
Prior to White's query, most of the discussion centered on a V.I. Bar Association poll in which the majority of the poll's respondents voted against Kendall's nomination. As of Thursday afternoon, out of 144 responses, 44 said Kendall was either qualified or highly qualified, 63 said they thought Kendall was not qualified and 38 said they didn't know or didn't have an opinion.
Joel Holt, V.I. Bar Association Judiciary Committee chairman, said twice as many association members responded to the Kendall poll as had responded earlier this year to a poll on the renomination of District Judge Thomas K. Moore.
Holt also he said was not aware of any local judiciary poll that ever had such a high rate of negative responses.
In defense of the apparently low number of respondents compared to the number of Bar Association members, Holt said there are only about 200 lawyers actively practicing law in the territory.
In testimony before the committee, Verne A. Hodge, former presiding judge of the Territorial Court, characterized the poll as being full of "lies" and "falsehoods." He and Kendall both told the committee members they should ignore it.
Hodge was Kendall's boss at Territorial Court, where Kendall served as general counsel for 15 years.
Several senators questioned the poll's anonymity factor, which Holt said is done to protect attorneys — and especially their clients — from any potential retribution, and to thwart those who might attempt to curry favor with positive responses.
But Hodge called the poll "unscientific" and "biased."
"Born here" bias vs. the need for native-born representation
The bias, Hodge wrote in a letter to the Rules Committee chair, Sen. Roosevelt David, is based in "born here" discrimination. Kendall's family is from Guyana, and that is where he was born.
Hodge admonished the senators to watch for those who believe in "born here" discrimination and to "make a strong statement in condemnation of this offensive practice."
Hodge wrote: "This community should be reminded that the great success of democracy in America is rooted in the diversity of its people."
Another non-member of the committee, Sen. Usie Richards, challenged Hodge later with another letter, written 13 years earlier by Hodge to Joseph R. Biden, then-chair of the U.S. Senate Judiciary Committee, denouncing the nomination of attorney Adriane J. Dudley to the U.S. District Court.
At that time Hodge wrote that if Dudley were confirmed it would be "another in the long series of non-native Virgin Islanders (judges, magistrates, marshals, U.S. Attorney, public defender, etc.) [to be appointed] to the exclusion of many well-qualified natives."
"Presently not one of the leading positions in these areas is held by a native," Hodge had written, adding later in the letter: "The denial to native Virgin Islanders of an opportunity to fill these positions constitutes an insensitive, unjust and disgraceful situation which is clearly inconsistent with the autonomous objective of the Revised Organic Act as amended."
Support for Kendall
Many letters were mentioned, and Hodge's current one was read into the record in support of Kendall's nomination.
David said he was holding letters from newly retired Territorial Judge Ishmael Meyers; Elliott "Mac" Davis, V.I. solicitor general; Territorial Judges Riise Hodge and Audrey Thomas; and attorneys J. Brion Morrisette and Andrew Capdeville. The letters and testimony given in person by attorney Robert "Bobby" King spoke of Kendall's high degree of competence and his loyal and dedicated service.
Leslie Payton, an attorney with the Territorial Public Defender's Office, said he had known Kendall from college days at Howard University. He said everyone at the law school knew "if you want to write a perfect brief, go to Kendall."
In answer to a question from White, Kendall said he doesn't believe in mandatory minimum sentencing, because "it removes the discretion of the judge … to consider mitigating circumstances."
In answer to a question of why Territorial Court Presiding Judge Maria Cabret had not endorsed his nomination, Kendall said: "I don't know."
"It came as a big shock when I found out she was opposed to my nomination," he said, especially when Cabret had gone on record "to support me for U.S. attorney."
Rumors accompany nomination
David asked Kendall if he happened to have a copy of Cabret's 10-year-old recommendation letter. He did, and he read it into the record at David's request. The letter was dated March 1993.
David also asked Kendall to set the record straight on two rumors circulating about him — one of sexual harassment and one about irregularities and secrecy surrounding middle-income property purchased from the V.I. Housing Authority by Kendall at Estate Thomas in the mid-1980s, the details of which were sealed for many years.
Kendall dismissed the sexual harassment charges, calling them "totally false," saying there is "nothing in the public record to substantiate those rumors."
David concurred, saying his office had done a thorough review of Kendall's qualifications and background.
"Once someone is appointed to the court," David said, "it invites rumors."
As for the property deal, Kendall said he had purchased the property after being encouraged to do so by his boss at the time, Verne Hodge.
"Judge Hodge encouraged us to sign up for the project," Kendall said.
Once he was screened and found eligible for the program in Hospital Ground, Kendall said, he signed a contract based on the plans for the units, which called for each owner to have a separate cistern. When it turned out that the units were built with a common cistern instead, Kendall said, he sued the Housing Authority and was awarded a $15,000 settlement. He said the reason the suit was sealed was so that other owners would not get the same idea and also sue.
Kendall still owns that unit, along with a house in Washington, D.C., and a home in Lindbergh Bay, St. Thomas, according to his nomination questionnaire.
The hard questions
The Bar Association poll revealed concerns about Kendall's lack of trial experience and questionable ability to effect a "judicial demeanor."
As to the judicial demeanor, Kendall's supporters pointed out that as an advocate he had to be aggressive. But as a judge, they felt, Kendall would easily make the transition to a more calm and balanced perspective.
Kendall said his definition of a judicial temperament is one which allows one to "hear and decide cases in a fair and impartial manner."
But, given a history which includes contention between Kendall and the Bar Association, at least one senator wasn't so sure.
"You asked this body to disregard the [Bar Association] poll," Sen. Ronald Russell said. "How do you expect to be fair with the bar?"
Russell, the only member of the Legislature who is an attorney and member of the V.I. Bar, hammered Kendall staccato-style asking:
"Have you ever tried a murder?"
"No," Kendall said.
"Have you ever
been before a jury in the V.I?"
"No," Kendall replied.
"Have you ever represented any private citizen in a civil or criminal suit?"
"No," Kendall answered.
"A practicing attorney," Russell said, "is different than a lawyer that represented the court."
Sen. Lorraine Berry, noting that Kendall had said on his questionnaire that there were problems with morale at the Territorial Court, asked Kendall to elaborate.
Kendall replied that the employees are not unionized and don't feel they have an advocate at the court. He said the low morale dates back about two or three years.
"Around the time Judge Hodge retired?" Berry asked.
Yes, Kendall said, it started around then.
In August 2001, Cabret — who succeed Hodge as chief judge after he retired, sought a $6 million increase in the court's budget during Finance Committee hearings, specifically to address the needs of the non-unionized employees.
(See "Cabret seeks raises for court workers, judges".)
Berry also wondered why Kendall had not told anyone at the court of his concerns — as expressed in his questionnaire — about the street between the Alexander A. Farrelly Criminal Justice Complex and the Ron de Lugo Federal Building being blocked to through traffic for the last several months.
"As an employee you should have influence," she said.
Russell called Thursday night's hearing "a process that seemed to have been predetermined by the nature of the relationships."
As a past president of the Bar Association, Russell said, he had fought to establish a process for judicial evaluation which would include term limits for presiding judges.
He strongly questioned the ability of Kendall — or Hodge — to be fair where the V.I. Bar association is concerned.
Hodge clearly stated that he "had nothing to do with the nomination" of Kendall.
In fact, Hodge said, he hadn't intended to come to the chambers or to testify, which is why he had sent a letter to David.
"I wanted to stay away and make sure he could stand on his own two feet," Hodge said of the nominee.
It was the poll that caused him to show up, Hodge said.
"I'm convinced that the bar [association] is a clique," he said. "I've been fighting them for years."
The committee voted 5-2 to move Kendall's nomination to the full Senate. Voting in favor were Sens. David, Douglas Canton, Carlton Dowe, Lewis Hill and David Jones.
Voting against were Berry and Russell.
If Kendall is approved, he will be sent to the National Judicial College, which offers courses that will assist him with the transition from advocate to judge.
Territorial Court judges receive an annual salary of $100,000.
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