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Judge Rules Commission Won't Hear Kendall Complaints

Jan. 17, 2008 — After several months of closed door meetings and heightened public speculation, complaints against Superior Court Judge Leon Kendall will not be heard by the Commission on Judicial Disabilities.
Chief District Court Judge Curtis Gomez ruled in a 42-page opinion released Wednesday evening 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 to another body.
Gomez's judicial rhetoric took a turn for the eloquent in concluding his decision. "The Defendants’ perception that the Revised Organic Act speaks of the authority to remove judges in essence gives an ear and applause to the anticipated performance of an unwritten symphony that no orchestra has performed.
"Significantly," Gomez wrote, "that perception finds no support in law. Accordingly, the Court finds that Congress has not granted the Virgin Islands Legislature the authority to remove judges. Thus, the Legislature may not delegate such authority to the Commission."
The ruling came as a shock to some members of the community, and a victory to others, notably Kendall and his attorney Howard M. Cooper. Kendall's office directed inquiries to Cooper.
"Judge Kendall is thrilled with the decision," Cooper said from his Boston office Thursday. "It is very well reasoned; it is thorough and it vindicates the separation of powers and judicial independence, principles which caused Judge Kendall to take this action in the first place.
"Separation of powers is interesting to lawyers and people familiar with principles of constitutional law," Cooper said, "but they should be of interest to all of us because of basic issues of judicial import."
Community activist and Kendall critic Maria Ferreras said Thursday, "No logical person will see this as a victory. We have seen our problem. Now, it's not whether Judge Kendall is wonderful or bad; it's that we need a review mechanism for the future."
In October last year, 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.
The commission had scheduled hearings in December that would address two of the three complaints against Kendall. At that time, Gomez allowed Kendall to state his opinion of injuries against him and his reputation, though that was not the matter at hand. Gomez said he would issue a ruling by Jan. 15 on the constitutionality of the commission. In the meantime, he asked the commission not to proceed with hearings.
The commission was established by the Legislature in 1976, but, according to commission chairman Sen. Ronald Russell, has rarely ever 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.
Kendall has been widely criticized by members of the community, peaking in a public protest last April, for what many considered a pattern of allowing violent defendants to return to the community after posting little or no bail. (See "'Silent' Protest Against Judge Kendall Draws Diverse Crowd, Approving Honks.")
Kendall has maintained his decisions are based on the Bail Reform Act, and he has pointed out that a decision of his has never been appealed by the V.I. Attorney General's office. Gomez's decision in no way considers the complaints against the judge. It is based solely on the constitutionality of the commission and whether it has the authority to remove a judge.
Ferreras said, "We are not giving up – we are just disappointed. While we respect the separation of powers, we don't seem to have any check and balance system. Now, with Judge Gomez's ruling, we have a situation where there is no mechanism in place to review judicial behavior. We can appoint judges, but not remove them."
She said she was awaiting an opinion of Gomez's ruling from legal entities including the Washington, D.C. based Judicial Watch, which had filed a 53-page complaint against Kendall with the commission. "There are recourses to take. We can file an appeal. It's disabling for the V.I. We have a situation right now that has eroded confidence in the judiciary," she said.
Gomez issued a permanent injunction to prevent the commission from commencing or pursuing removal proceedings against Kendall. He said, "… in absence of injunctive relief, Judge Kendall will suffer irreparable injury to his reputation and career. Finally, given the significance of the issues presented in this matter, the Court finds that the balance of the equities and the public interest favor injunctive relief."
Calls to Russell and commission attorney Maria Tankenson Hodge were not returned Thursday.
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