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Judge Kendall Has His Day In Court, Ruling to Come by Jan. 15

Dec. 13 , 2007 –– After listening to hours of arguments in a day-long hearing Thursday, District Court Chief Judge Curtis Gomez said he will make a ruling on the constitutionality of the creation of the Commission on Judicial Disabilities before Jan. 15.
Superior Court Judge Leon Kendall has challenged the constitutional authority of the Commission on Judicial Disabilities, which he claims is not a judicial body. ( See "Judicial Commission Seeks to Dismiss Kendall's Action").
In October, 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 Virgin Islands 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.
Commission attorney Maria Tankenson Hodge last month requested the case be dismissed, arguing that Kendall's contention that the law establishing the commission violates the separation of powers doctrine is without merit, a contention she took up Thursday.
Both actions were denied.
Kendall was represented Thursday by attorneys Julie E. Green and Howard M. Cooper of Todd & Weld LLP of Boston, Mass. Local attorney Robert King had previously represented Kendall.
Gomez made clear at the start of the proceedings that the issue was the constitutionality of the creation of the commission, not the merits of the complaints about Kendall before the commission. The commission was scheduled to hold hearings Thursday and again on Monday in the Kendall matter.
Cooper said the commission's action against Kendall, and the resultant publicity, had had a chilling effect on the judge. He said Kendall had suffered personal and judicial injury because of the media publicity.
Gomez said press coverage comes with the turf in these matters. However, he allowed Kendall to testify on his own behalf.
Under questioning by Green, Kendall said he had been under "intense scrutiny" about his bail decisions, and people were hostile toward him.
Under questioning by Green, Kendall said he had ruled on 400 cases, pointing out that none had been challenged. Kendall said the Judicial Watch complaint against him had been posted on its website and had caused him a lot of damag. "I feel as though I have the sword of Damocles hanging over me. It's an impediment to the performance of my judicial duties."
After further objections by Hodge, Gomez called a brief sidebar conference before Kendall continued with his testimony.
Kendall said he was shunned by friends and colleagues as a result of the scrutiny.
Hodge asked him if he had ever filed any complaint with the commission about its activities.
Kendall didn't answer that question. After further questioning by Hodge about his reasons for bringing the case, Kendall switched the subject. "It is a matter of public record that Senator Russell has been –" Kendall began before Gomez cut him off.
Cooper argued throughout the day that the commission was not constitutionally created, that the Legislature had no authority to create it under the provisions of the Organic Act. He cited the Home Rule Act of the District of Columbia, which provides for an elected mayor and council. Under that act, Congress reviews all legislation passed by the council before it becomes law.
There was much discussion by both sides as to whether the commission constitutes a court. By law under the Organic Act, the Legislature has the authority to create courts. Hodge pointed out that the commission was created by the Legislature as an entity within the judicial branch. The very law that created the commission is the same act that created the Territorial Court (now the Superior Court).
A removal order by the commission is not effective unless the commission's decision is affirmed by the court after a review.
At the end of the day, Gomez noted, "there are a lot of issues here." After saying he would make a decision before Jan. 15, he said, "I don't know if parties are inclined to stand still until I make a decision."
Cooper said he had no objection. After a huddle with the five commission members, Hodge said, "Provided the Court needs that amount of time, the commission will do so."
Gomez then asked the attorneys to file post-trial briefs.
The courtroom was filled with spectators, including Mary Mingus of the Women's Coalition of St. Croix and Lynn Gittens Spencer of the V.I. Domestic Violence and Sexual Assault Council of the V. I., both of whom have filed complaints with the commission about Kendall's court decisions.

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