Kendall v. Russell

OPINION OF THE COURT

(July 13, 2009)

Leon A. Kendall, a judge of the Superior Court of the Virgin Islands, filed this suit against members of the Virgin Islands Commission on Judicial Disabilities (the “Commission”), alleging that Virgin Islands Act No. 3876 (the “Commission Act” or the “Act”), which empowers the Commission to remove judges of the Superior Court, violates the separation of powers principle inherent in the Revised Organic Act of 1954 (the “ROA”). 48 U.S.C. §§ 1541 et seq. The Commission asked the District Court to abstain from hearing the case, but the Court declined and entered judgment for Judge Kendall, declaring that the Commission Act does indeed violate the ROA and enjoining the Commission members from initiating or continuing removal proceedings against Judge Kendall. Now, four members of the Commission, Ronald A. Russell, Bruce Marshack, Robert Molloy, and Luis Morales, appeal the District Court’s judgment.1 Because we conclude that the District Court did not err by *1025refusing to abstain and that the legislation at issue is in violation of the ROA, we will affirm.

I. Background

A. Establishment of the Commission

On September 9, 1976, the Legislature of the Virgin Islands passed the Commission Act, which instituted significant changes involving the judicial system of the Virgin Islands. One of those changes was the creation of the Commission. V.I. CODE Ann. tit. 4, §§ 651-59. The Act grants the Commission the “power to retire or remove a magistrate or judge of the Superior Court of the Virgin Islands” and lists as grounds for removal conviction of a felony, willful misconduct in office, willful and persistent failure to perform judicial duties, a mental or physical disability that seriously interferes with the performance of judicial duties, or any other conduct that is prejudicial to the administration of justice or brings the judicial office into disrepute. Id. §§ 651, 656.

The Act further specifies that the Commission is to be composed of two members appointed by the Governor of the Virgin Islands, two members appointed by the President of the Virgin Islands Legislature, and one member appointed by the Board of Governors of the Virgin Islands Bar Association. Id. § 652. Members of the judiciary are not eligible to serve on the Commission. Id.

The Commission may investigate a judge’s health or conduct on its own initiative or following a complaint. Id. § 657(b)(1). Before the Commission can issue an order affecting a judge’s tenure, it must hold a hearing. Id. A judge who is subject to a Commission hearing must be given notice of the hearing and of the nature of the matters under inquiry. Id. § 657(b)(2). The judge is entitled to attend the hearing, be represented by counsel, present evidence on his own behalf, and confront and cross-examine witnesses. Id. Following a hearing, the Commission makes determinations regarding the conduct or health of the judge concerned. Id. § 657(b)(3). The concurrence of at least four members is required for the Commission to make a determination for removal or retirement. Id.

According to the terms of the Act, if the Commission makes a determination for removal or retirement, it must file an order in the District Court of the Virgin Islands. Id. §§ 656(a), (b), 657(b)(3). The Act provides that the judge who is the subject of the order may then petition *1026the District Court to review the order. Id. § 659. After reviewing the proceedings that give rise to the order, the District Court is ostensibly empowered to affirm, reverse, or remand the order to the Commission for further proceedings. Id. The District Court is directed to follow the rules of procedure governing appeals in civil actions, and its determinations are to be final and conclusive. Id.

B. Judge Kendall and the Commission

In 2003, Leon A. Kendall was appointed to serve as a judge of the Superior Court of the Virgin Islands. In June 2007, Judge Kendall received a letter informing him that the Commission had received and planned to investigate two complaints against him. The Commission served Judge Kendall with two documents on November 16, 2007, each styled as an “Order and Notice of Hearing,” and each bearing a distinct case number and hearing date.

Judge Kendall considered the pending hearings to be “continuing looming threats” to his judicial independence.2 (See App. II at 66.) On October 4, 2007, he filed a complaint in the District Court of the Virgin Islands against the members of the Commission in their official capacities. In his suit, Judge Kendall sought a judgment declaring that the provisions of the Act granting the Commission the power to investigate and remove Superior Court judges constitute a violation of the separation of powers principle inherent in the ROA. He also petitioned the Court to enjoin members of the Commission from commencing or continuing removal proceedings against him.

The next day, October 5, Judge Kendall filed a Motion for a Preliminary Injunction. The District Court consolidated the hearing on the motion with a trial on the merits and heard testimony and arguments on December 13, 2007. On January 16, 2008, the Court issued a judgment in favor of Judge Kendall, holding that the provisions of the Act empowering the Commission to remove Superior Court judges violate the ROA, and enjoining Commission members from initiating or continuing removal proceedings against Judge Kendall.

*1027The Court also issued a thorough memorandum opinion explaining its decision. It began by determining that it had jurisdiction over the case and that Judge Kendall had standing to bring his claims. It then turned to whether it had discretion to abstain from considering the claims because of the ongoing Commission proceedings. After analyzing the case law on Younger abstention,3 the Court focused on whether the removal proceedings provided an opportunity for judicial review of Commission orders and a forum for Judge Kendall to raise his separation of powers claims. The Court noted that, under the Act, Commission orders do not take effect until they are approved by the District Court. The Court held, however, that it actually had no jurisdiction to review such orders and that the Legislature of the Virgin Islands could not expand the jurisdiction of a federal court. Consequently, the District Court concluded that it could not review the Commission’s orders and that judicial review of Commission proceedings is thus effectively unavailable. According to the District Court, since the Commission proceedings are not subject to judicial review, they are not judicial in nature and do not provide an adequate forum for Judge Kendall to raise his separation of powers concerns. Based on that reasoning, the Court determined that the Younger factors weighed against abstention and in favor of reviewing Judge Kendall’s claims.

Next, the Court turned to the merits of those claims. It began by establishing that, for a local legislature to have the power to remove a judge, the legislature must be expressly granted that power by some legal authority, usually a state constitution. Noting that the ROA serves as the Constitution of the Virgin Islands, the Court reviewed the relevant portions of the ROA and concluded that it does not grant the Legislature power to remove judges. Without having such power itself, the Legislature could not delegate it to the Commission. Hence, the Court *1028concluded, the portions of the Act establishing the Commission violate the ROA.

Four members of the Commission (“Appellants”) filed a timely notice of appeal. They assert that the District Court erred in refusing to abstain from ruling while there were proceedings before the Commission. On a related point, they argue that the District Court erred in construing the Act as not providing for judicial review of Commission orders. Finally, they contend that the District Court erred in holding that the provisions of the Act granting the Commission power to remove Superior Court judges are invalid and unenforceable under the ROA.

II. Discussion4

We first consider abstention and then turn to the validity of the contested provisions of the Act.

A. Abstention

“A federal district court has discretion to abstain from exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding.” Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005) (citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971)). As noted earlier, the Younger doctrine allows a district court to abstain, but that discretion can properly be exercised only when (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Matusow v. Trans-County Title Agency, LLC, 545 F.3d 241, 248 (3d Cir. 2008). It is beyond dispute that the second element of that tripartite test is present in this case. Judicial accountability and the regulation of the judiciary are obviously important state interests, and the government of the Virgin Islands is rightly concerned with the *1029competence and integrity of the men and women who serve on the Territory’s bench. But that satisfies only one of the three requirements for Younger abstention. The other two elements, the first and third prongs of the Younger test, are missing here.

1. Commission Proceedings Are Not Judicial

In determining whether state proceedings are judicial in nature, we have identified some “traditional indicia of a judicial action.” Coruzzi v. New Jersey, 705 F.2d 688, 690 (3d Cir. 1983). For example, proceedings may be judicial in nature if they are initiated by a complaint, adjudicative in nature, governed by court rules or rules of procedure, or employ legal burdens of proof. See id. In addition, and of particular significance in this case, the Supreme Court has indicated that the availability of judicial review is an important element of judicial proceedings. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433, 437, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982) (citing the availability of review by the New Jersey Supreme Court as a significant factor in determining that local attorney disciplinary proceedings were judicial in nature); see also Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619, 627, 106 S. Ct. 2718, 91 L. Ed. 2d 512 (1986) (characterizing the holding in Middlesex as being “that federal courts should refrain from enjoining lawyer disciplinary proceedings initiated by state ethics committees if the proceedings are within the appellate jurisdiction of the appropriate State Supreme Court” (emphasis added)).

The Act sets forth several prescriptions for the Commission that make its work akin to judicial proceedings. The Commission may not enter an order affecting a judge’s tenure without holding a hearing. V.I. CODE Ann. tit. 4, § 657(b)(1). A judge under investigation must be given notice of any hearing into his conduct and the nature of the matters under inquiry. Id. § 657(b)(2). In addition, the judge has the right to attend hearings, be represented by counsel, present evidence on his own behalf, and confront and cross-examine any witnesses against him. Id.

The Act also purports to provide for judicial review by requiring that Commission orders affecting judicial tenure be submitted to the District Court for review and by stipulating that any “[djetermination by the district court shall be final and conclusive.” Id. § 659. That provision of the Act, however, presents a conspicuous problem. “Federal courts are courts of limited jurisdiction. They possess only that power authorized by *1030Constitution and [federal] statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994) (citations omitted). Despite laudatory intention, the Legislature of the Virgin Islands cannot expand the jurisdiction of the District Court. See Estate of Thomas Mall, Inc. v. Territorial Court of the V.I., 923 F.2d 258, 261 (3d Cir. 1991) (“Lest we be swayed by the fact that the Virgin Islands statutory provisions purport to grant jurisdiction in the District Court, the Territorial Court points out correctly that the Virgin Islands legislature has no power to do that. Only Congress has the power to determine the jurisdiction of the District Court of the Virgin Islands under Article IV of the United States Constitution.”). It follows that, regardless of whether the Act calls for District Court review of Commission orders, the District Court can only exercise such review if that jurisdiction is grounded in federal law.

Appellants contend that there is a foundation in federal law for the jurisdiction they claim exists, or at least existed when the Act was passed. They base their argument on section 1613a(a) of the ROA, which provides that, prior to the authorized establishment of a local appellate court, “the District Court of the Virgin Islands shall have such appellate jurisdiction over the courts of the Virgin Islands established by local law to the extent now or hereafter prescribed by local law.” 48 U.S.C. § 1613a(a).5 The flaw in the Appellants’ reasoning is that the ROA only granted the District Court “appellate jurisdiction over the courts of the Virgin Islands” and made no mention of any body like the Commission.6 Id. (emphasis added). Although some aspects of Commission proceedings *1031are judicial in nature, the Commission is plainly not a court. Even the Appellants do not claim that status for the Commission, though they do contend that it falls within the judicial branch. To expand the term “court” to encompass the Commission would move well beyond the ordinary meaning of the word, see Alaka v. Att’y Gen., 456 F.3d 88, 104 (3d Cir. 2006) (“Perhaps the most fundamental principle of statutory construction is that words in a statute must be given their ordinary meaning whenever possible.”) (citation omitted), and we decline to take that step.

Appellants next argue that, even if the District Court does not have jurisdiction to review Commission orders, judicial review is nevertheless available before the Virgin Islands Supreme Court. Appellants contend that when the Virgin Islands Supreme Court was created in 2004, the Commission Act was “implicitly or impliedly” amended to provide for Supreme Court review of Commission orders. (Appellants’ Opening Br. at 16.) In support of their argument, Appellants cite section 1613a(d) of the ROA, which states, “[ujpon the establishment of the appellate court provided for in section 1611(a) of this title[,] all appeals from the decisions of the courts of the Virgin Islands established by local law not previously taken must be taken to that appellate court.” 48 U.S.C. § 1613a(d). According to Appellants, that provision of the ROA shifts responsibility for the review of local court decisions and Commission orders from the District Court to the Supreme Court of the Virgin Islands.

Appellants bolster their argument by directing us to the process that the Legislature recently established for the removal of Justices of the Virgin Islands Supreme Court.

Pursuant to title 4 V.I.C. chapter 36, a justice of the Supreme Court shall be involuntarily retired from office when the Commission on Judicial Disabilities determines that the justice suffers from a mental or physical disability, including habitual intemperance, which prevents, or seriously interferes with, the proper performance of his judicial duties, and the Commission files in the Supreme Court an order of involuntary retirement and the order is affirmed on appeal or the time within which an appeal may be taken from the order has expired.

*1032V.I. Code Ann. tit. 4, § 25. Appellants claim that this section serves as evidence of the Legislature’s intent to provide for Supreme Court review of all Commission orders, including those concerning Superior Court judges, even if the provisions of the Commission Act regarding removal of Superior Court judges have not been explicitly amended to reflect that intent.

The argument is not without persuasive force, since it may well be that the Legislature intended Commission orders regarding Superior Court judges to be reviewed by the Supreme Court of the Virgin Islands. But the fact remains that there is simply no legislation saying that. The Commission Act itself unambiguously charges the District Court with that task. For us to read the language otherwise or to conclude that the Commission Act has been “implicitly or impliedly” amended would be to legislate from the bench, a task we have neither the authority nor the inclination to undertake.7 It is not a lack of respect for the Legislature that makes us reticent to recognize an implicit amendment to the Act. On the *1033contrary, it is our immense respect for the power and function of the Legislature that constrains us to look at the language of the Act, not at what we wish the language were or what we think the Legislature would do if it actually amended the Act.

2. Lack of Opportunity to Raise Federal Claims

One consequence of the lack of opportunity for judicial review of Commission decisions is that there is not a meaningful chance for a judge under investigation to raise federal claims. Such an opportunity is a necessity under the third prong of the Younger test for abstention. Even if the Commission permitted a judge to advance federal claims — and it is not clear it would — that would not be adequate because, again, without judicial review, the local administrative process alone is not a full and fair opportunity to litigate such claims. Cf. Middlesex County Ethics Comm., 457 U.S. at 433; Ohio Civil Rights Comm’n, 477 U.S. at 627 (recognizing that Younger abstention may be appropriate when there are ongoing state administrative proceedings, “so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim”).

We have previously noted that “the third part of the [Younger] test ‘is satisfied in the context of a state administrative proceeding when the federal claimant can assert his constitutional claims during state-court judicial review of the administrative determination.’ ” Zahl v. Harper, 282 F.3d 204, 210 (3d Cir. 2002) (quoting O’Neill v. City of Philadelphia, 32 F.3d 785, 792 (3d Cir. 1994)). An implication of that holding, which we embrace now, is that the absence of judicial review of federal claims means the third part of the Younger test has not been satisfied.

*1034In summary, we conclude that, because the District Court does not have jurisdiction to review Commission orders, and because the Act does not provide for any territorial court review of Commission orders concerning Superior Court judges, there is currently no valid avenue for appellate review of a Commission order affecting someone like Judge Kendall. Since an opportunity for appellate review is a highly significant element of judicial proceedings and would be essential in this case to provide a meaningful opportunity to raise a federal claim, we agree with the District Court that two of the three elements of the test for Younger abstention are lacking here. The District Court was, therefore, correct not to abstain from deciding this case.

B. Validity of the Act

Having concluded that the District Court rightly refused to abstain, we now turn to the Court’s decision that the Commission Act violates the separation of powers principle inherent in the ROA.

The Constitution grants Congress the authority to “make all needful rules and regulations respecting the territory or other property belonging to the United States.” U.S. CONST, art. IV, § 3, cl. 2. Pursuant to that authority, Congress passed the ROA, 48 U.S.C. §§ 1541 et seq., which, as we have noted, serves as the Constitution of the Virgin Islands. See Brow v. Farrelly, 994 F.2d 1027, 1032, 28 V.I. 345 (3d Cir. 1993) (citation omitted). The ROA divides the power to govern the territory between a legislative branch, 48 U.S.C. § 1571, an executive branch, id. § 1591, and a judicial branch, id. § 1611. By organizing the government in that manner, Congress “implicitly incorporated the principle of separation of powers into the law of the territory.” Smith v. Magras, 124 F.3d 457, 465, 37 V.I. 464 (3d Cir. 1997) (citation omitted).

In Springer v. Philippine Islands, 277 U.S. 189, 48 S. Ct. 480, 72 L. Ed. 845 (1928), the Supreme Court dealt with an analogous situation. It reviewed the Philippine Organic Act and noted how that act embedded the separation of powers in the territorial government of the Philippines. Id. at 199-202 (1928). The Court then articulated the practical effect of the separation of powers principle:

It may be stated then, as a general rule inherent in the American constitutional system, that, unless otherwise expressly provided or incidental to the powers conferred, the Legislature cannot exercise either *1035executive or judicial power; the executive cannot exercise either legislative or judicial power; the judiciary cannot exercise either executive or legislative power.

Id. at 201-02. In short, the separation of powers principle prohibits any branch of government from exercising powers that are reserved for the other branches, unless such an exercise is “expressly provided or incidental to the powers” that a branch necessarily has.

The question then becomes whether there is a basis in the ROA, either express or as incidental to a grant of power, for the Legislature to regulate the conduct of judges. The Appellants, of course, say there is. They note that, in the ROA, Congress authorized the Legislature of the Virgin Islands to create local courts. 48 U.S.C. § 1611(a), (b). In the same section, Congress addressed the power to promulgate rules governing those courts:

The rules governing the practice and procedure of the courts established by local law and those prescribing the qualifications and duties of the judges and officers thereof, oaths and bonds, and the times and places of holding court shall be governed by local law or the rules promulgated by those courts.

Id. § 1611(c). Appellants contend that the power to prescribe the qualifications and duties of the judges encompasses the power to remove judges from the bench.

We think, however, that their proposed construction of that provision stretches the statutory language beyond its natural and intended meaning. While the ROA does grant the Legislature the authority to prescribe the qualifications of judges, which the Legislature has done,8 *1036there is no indication that Congress intended that authority to include the power to remove judges. The ROA itself leads to the opposite conclusion. In it, Congress demonstrated a clear understanding of how to provide for the removal of government officials. The ROA expressly provides that the President of the United States has the power to remove Virgin Islands district court judges, 48 U.S.C. § 1614(a), that the Governor of the Virgin Islands has the power to remove the heads of executive departments, id. §§ 1591,1597(c), and that the people of the Virgin Islands have the power to remove any elected official by recall, id. § 1593(a). The removal power so plainly provided in those parts of the ROA is conspicuously absent in the provision authorizing the Legislature to create local courts and prescribe the qualifications and duties of local judges. Id. § 1611(c).

Moreover, we think it extremely doubtful that Congress, in developing the ROA, would ignore that the power to remove officers from a coordinate branch of government is expressly established in the United States Constitution, see, e.g., Art. I, § 2, cl. 5 (“The House of Representatives . . . shall have the sole power of impeachment.”); Art. I, § 3, cl. 6 (“The Senate shall have the sole power to try all impeachments.”); Art. I, § 3, cl. 7 (“ludgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States . . . .”), and is not simply left to inference or presumption. We believe Congress would have followed that pattern or otherwise been plain about its intention, had it meant for the Virgin Islands Legislature, operating under a regime of separated powers, to have authority to remove judges.

Appellants next argue that the Legislature did not violate the principle of separation of powers in establishing the Commission because the Commission itself is part of the judicial branch. Even if inconsistent with the rest of their arguments about the exercise of legislative power, that contention at least has the merit of being in tune with the widespread understanding that the authority to discipline judges is fundamentally a *1037judicial power. See, e.g., In re Petition of Judicial Conduct Comm., 151 N.H. 123, 855 A.2d 535, 539 (N.H. 2004) (“[T]he power to regulate the conduct of judges ... is a judicial power.”); In re Dunleavy, 838 A.2d 338, 344 (Me. 2003) (“The judicial power . . . includes the authority to regulate the professional conduct of judges.”) (citations omitted); In re Complaint Concerning Kirby, 350 N.W.2d 344, 347 (Minn. 1984) (“This court has always had an existing inherent power to discipline judges. . . .”). But the claim that the Commission is part of the judicial branch is belied by both the ROA and the Virgin Islands Code.

In the ROA, Congress explicitly granted the judicial power of the Virgin Islands to certain enumerated bodies: “The judicial power of the Virgin Islands shall be vested in a court of record designated the ‘District Court of the Virgin Islands’ established by Congress, and in such appellate court and lower local courts as may have been or may hereafter be established by local law.” 48 U.S.C. § 1611(a). Pursuant to that grant of power, the Virgin Islands Legislature has created local courts and listed which entities exercise the judicial power of the Virgin Islands:

The judicial power of the Territory is vested in a court of general jurisdiction created by section 21 of the Revised Organic Act of the Virgin Islands, approved July 22,1954, as amended, designated the ‘District Court of the Virgin Islands’, and in courts of local jurisdiction to be designated the ‘Superior Court of the Virgin Islands’ and the court of last resort established pursuant to section 21(b) of the Revised Organic Act, ‘The Supreme Court of the Virgin Islands.’ Each court is a court of record.

V.I. CODE ANN. tit. 4, § 2. Not surprisingly, since it is not a court, the Commission is not listed in either the ROA or the Virgin Islands Code as an entity that exercises judicial power.

The Commission Act itself also undercuts Appellants’ argument by explicitly prohibiting those “who are serving in any capacity in any court in the Virgin Islands” from being selected as members of the Commission. Id. § 652(a). In addition, as explained above, the Act currently provides no valid avenue for judicial review of Commission orders. Since the Commission is not a court and since judges can neither sit on the Commission nor review its findings or proceedings, it is quite plainly not a part of the judicial branch.

*1038There is thus no express grant of authority for the Legislature to exercise judicial power through the creation of the Commission. Moreover, the Appellants have not advanced an argument that somehow the disciplining of the judiciary is incidental to legislative power.9 Any such argument would be dubious at best, since it is difficult to imagine a legislative function that incidentally involves directly regulating the officers of an independent branch of government.10

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.

III. Conclusion

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 *1039were subject to review by the Supreme Court of the Virgin Islands, though we do encourage the Virgin Islands’ Legislature to take up the question of how appeals from such orders should be handled. 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.