In re Kendall

55 V.I. 888, 2011 WL 4852282, 2011 V.I. Supreme LEXIS 42
CourtSupreme Court of The Virgin Islands
DecidedOctober 12, 2011
DocketS. Ct. Misc. No. 2009-0025
StatusPublished
Cited by8 cases

This text of 55 V.I. 888 (In re Kendall) is published on Counsel Stack Legal Research, covering Supreme Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kendall, 55 V.I. 888, 2011 WL 4852282, 2011 V.I. Supreme LEXIS 42 (virginislands 2011).

Opinion

OPINION OF THE COURT

(October 12, 2011)

Per curiam.

This Court, in an August 13, 2009 Order, required Leon A. Kendall, a judge of the Superior Court,2 to show cause as to why he should not be held in indirect criminal contempt.3 On December 18, [893]*8932009, this Court appointed the Honorable Edgar D. Ross, a retired Superior Court judge, to serve as a Special Master, with the authority to, among other things, conduct a show cause hearing and make and submit to this Court proposed findings of fact and conclusions of law. After presiding over the show cause hearing and considering the parties’ submissions, the Special Master has recommended that this Court acquit Kendall of all charges. After an exhaustive review of the record, including a transcript of the show cause hearing, a video of the majority of the proceedings, and numerous documents entered into evidence by both parties, we accept in part and reject in part the Special Master’s findings, conclusions, and recommendations.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The facts and circumstances from which this matter arises stem from a March 9, 2009 petition for writ of mandamus filed in this Court by the People of the Virgin Islands. In a May 13, 2009 Opinion and Order, this Court granted the petition and issued a writ of mandamus to Kendall — the nominal respondent to the mandamus action — directing that his oral and written orders compelling the People to enter into a plea bargain with Basheem Camal Ford and Jermaine S. Paris — the defendants in the underlying Superior Court case — were reversed and that he conduct future proceedings in that case in a matter consistent with the May 13, 2009 Opinion. See In re People of the V.I., 51 V.I. 374 (V.I. 2009). Almost two months after the issuance of that opinion and almost one month after this Court issued its June 10, 2009 mandate, on July 7, 2009, Kendall issued a thirty-one page opinion, designated as “for publication,” in which he, among other things, made numerous inflammatory remarks about this Court, stated that this Court’s issuance of a writ of mandamus “was [894]*894clearly improper,” found that the writ had been “issued to facilitate the Prosecution’s blatant misconduct and perpetrate a fraud on the [Superior] Court,” and recused himself from the case. See People v. Ford, 52 V.I. 30 (V.I. Super. Ct. 2009) (hereinafter “July 7, 2009 Opinion”).

On August 13, 2009, this Court required Kendall to show cause as to why he should not be held in indirect criminal contempt for obstructing the administration of justice, failing to comply with the May 13, 2009 Opinion and Order, and for misbehaving in his official transactions as an officer of the court. Subsequently, Kendall filed a motion to dismiss, which the Special Master, shortly after his appointment, proposed that this Court deny — a recommendation which this Court accepted — and thereafter scheduled a show cause hearing for April 12, 2010.

At the April 12, 2010 hearing, the Special Master heard opening statements, accepted the parties’ request to take judicial notice of numerous exhibits, and allowed the People to present its case. The People called, as its first witness, Assistant Attorney General Jesse M. Bethel, who was counsel for the People in the In re People matter. Due to the length of both direct and cross-examination of Bethel, the Special Master authorized a recess and allowed the hearing to reconvene the following day. Once cross-examination of Bethel concluded on April 13, 2010, the People called Janet Lloyd, the Superior Court’s librarian, who primarily testified on direct examination to the authenticity of Kendall’s July 7, 2009 Opinion and the significance of its “For Publication” designation. Lloyd was then cross-examined by Kendall. Thereafter, the People called its final witness, Stanley Perez, a Marshal for the Superior Court.

After the People rested its case, Kendall orally moved for a judgment of acquittal. However, recognizing that this Court’s December 18, 2009 Order only authorized the Special Master to make proposed recommendations with respect to dispositive motions, Kendall requested that the Special Master recess the show cause hearing to allow the parties to file proposed findings of fact and conclusions of law, for the Special Master to produce his written recommendation, and for this Court to then review the Special Master’s recommendation. The Special Master granted Kendall’s request, and recessed the hearing pending these events.

On April 16, 2010, both Kendall and the People submitted their proposed findings of fact and conclusions of law to the special master. On the same day, Kendall filed a written motion for judgment of acquittal or, in the alternative, a mistrial, which — among other things — argued that [895]*895the First Amendment prohibited this Court from holding him in contempt based on the contents of the July 7, 2009 Opinion absent a finding that its issuance created a “clear and present danger,” and that the People had introduced insufficient evidence to sustain the charges. The People filed its opposition to Kendall’s motion on April 19,2010. On May 4,2010, the Special Master submitted his proposed findings of fact and conclusions of law, and recommended that this Court deny Kendall’s motion for judgment of acquittal on the grounds that the July 7, 2009 Opinion was not protected by the First Amendment.

On May 18, 2010, Kendall timely filed an objection to the Special Master’s recommended disposition, in which he contended, among other things, that the Special Master erred in recommending that this Court deny his April 16, 2010 motion for judgment of acquittal because the Special Master’s “[Recommendation is fatally defective for ignoring, and failing even to address, the controlling [constitutional principles that govern the use of the contempt power against speech,” (Obj. at 2), and that the People failed to present evidence sufficient to establish beyond a reasonable doubt that Kendall is guilty of criminal contempt. Specifically, Kendall contended that the People were required to prove that the July 7, 2009 Opinion presented a “clear and present danger of [the] obstruction of the administration of justice,” (Obj. at 2-3), and that the Special Master had only found that the remarks in Kendall’s July 7, 2009 Opinion “prejudice this Court in public estimation,” tend to “destroy or call into doubt this Court’s function and position as the highest local court in the Virgin Islands,” and “reduce confidence in the administration of justice in the jurisdiction,” which Kendall also argued were threats “to the Court’s dignity and public esteem, not to the administration of justice.” (Obj. at 4 (quoting Rec. at 4).) But in a July 16, 2010 Order, this Court expressly rejected Kendall’s argument that the First Amendment required application of the clear and present danger standard. In re Kendall, S. Ct. Misc. No. 2009-0025, 2010 V.I. Supreme LEXIS 73, at *11 (V.I. July 16, 2010). In addition, the July 16, 2010 Order adopted the Special Master’s holding that the People introduced evidence sufficient for a reasonable trier of fact to hold Kendall in indirect criminal contempt on all three counts, as well as the Special Master’s recommendation that Kendall’s motion for mistrial be denied.

The Special Master resumed the show cause hearing on August 18, 2010. At the hearing, Kendall, through his counsel, introduced four [896]*896documents from the

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Bluebook (online)
55 V.I. 888, 2011 WL 4852282, 2011 V.I. Supreme LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kendall-virginislands-2011.