Russell v. Kendall

48 V.I. 659, 2006 WL 3613269, 2006 U.S. Dist. LEXIS 89537
CourtDistrict Court, Virgin Islands
DecidedDecember 11, 2006
DocketD.C. Civ. App. No. 2006/223
StatusPublished
Cited by2 cases

This text of 48 V.I. 659 (Russell v. Kendall) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Kendall, 48 V.I. 659, 2006 WL 3613269, 2006 U.S. Dist. LEXIS 89537 (vid 2006).

Opinion

MEMORANDUM OPINION

(December 11, 2006)

Senator Ronald E. Russell (“Russell”), a member of the Twenty-Sixth Legislature of the Virgin Islands, has filed a petition for a writ of mandamus against the Superior Court. For the reasons explained below, we will deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter arises from a civil proceeding in the Superior Court of the Virgin Islands.

In October, 2004, the Virgin Islands Legislature established the Supreme Court of the Virgin Islands pursuant to section 21(a) of the Revised Organic Act. 4 V.I.C. § 21(a). That act provided that the Supreme Court would have regular sessions on Charlotte Amalie, St. Thomas. In February, 2005, the Twenty-Sixth Legislature of the Virgin Islands (“Legislature”) passed Act No. 6730. Section 61 of Act No. 6730 amended 4 V.I.C. § 21(b)(2) to provide that the Supreme Court would have regular sessions on St. Croix. Governor Charles Turnbull (the “Governor” or “Governor Turnbull”) vetoed section 61 of Act No. 6730. The Legislature overrode the veto, thereby requiring the Supreme Court to hold regular sessions on St. Croix. See 4 V.I.C. 21(b)(2).

On September 18, 2005, the Legislature passed Act No. 6816 to provide funding for the construction and establishment of the Supreme Court on St. Croix. The Governor vetoed the act on December 2, 2005. On December 15, 2005, the Legislature overrode the veto.

[662]*662On July 28, 2006, the Governor filed a complaint, Governor Turnbull v. Twenty-Sixth Legislature of the Virgin Islands, Super. Ct. Civ. No. 06-CV-394. The Governor’s complaint seeks declaratory relief that the Legislature had no authority to relocate the Supreme Court sessions from St. Thomas to St. Croix. Specifically, Governor Turnbull sought the Superior Court to declare Act Nos. 6730 and 6816 null and void and violative of sections 8 and 2(b) of the Revised Organic Act. Additionally, the Governor sought a declaration that regular sessions of the Supreme Court shall be held on St. Thomas.

Superior Court Judges Rhys S. Hodge and Brenda J. Hollar both recused themselves from participation in Turnbull v. Twenty-Sixth Legislature on July 31, 2006 and August 28, 2006, respectively. The matter was then assigned to Judge Kendall.

On August 21, 2006, Senator Russell’ filed a document entitled “Notice of Removal” in the Superior Court which read as follows:

COMES NOW, Defendant, Twenty-Sixth Legislature of the Virgin Islands, by and through, undersigned co-counsel, and hereby moves this Court to remove this case to the District Court of the Virgin Islands because this case involves a federal question. The federal question arises because the complaint alleges a violation of a congressional act as provided in 48 U.S.C. § 1541(b) and § 1574, i.e. the Revised Organic Act of.... 1954, § 2(b) and § 8 of the Act.
Pursuant to 28 U.S.C. § 1331, “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Because plaintiffs complaint “arises under” a law of the United States, the District Court of the Virgin Islands is the proper venue for this case.
WHEREFORE, defendant prays that this matter be removed to the District Court of the Virgin Islands, Division of St. Thomas.

[Pet. Ex. 2.] On August 22, 2006, Russell filed a document entitled “Amended Notice of Removal” in the Superior Court, changing the first sentence to read:

COMES NOW, Ronald E. Russell, Esq., as a member of the twenty-sixth legislature elected from the district of St. Croix, as a resident of St. Croix, as an Officer of the Court and a member of [663]*663the Virgin Islands Bar Association, and as the primary sponsor of the provisions of the law challenged by Charles W. Turnbull, PhD, Governor of these United States Virgin Islands and hereby moves this Court to remove this case to the District Court of the Virgin Islands because this case involves a federal question.

Both documents Russell filed were signed by himself.

On September 12, 2006, Governor Turnbull filed a motion to strike Russell’s notice of removal. The Governor noted that Russell’s notice was procedurally defective under 28 U.S.C. § 1441 because Russell was not a named defendant and had not been given permission from the Superior Court to intervene.

On September 18, 2006, Judge Kendall ordered that counsel for the defendant immediately enter his or her appearance. He further ordered that within ten days the defendant shall file its opposition to the Governor’s motion to strike.

In response to the September 18, 2006, order, Attorney Douglas A. Brady entered a notice of appearance for the defendant. Attorney Brady also filed a notice that the defendant would take no position regarding the Governor’s motion to strike.

On October 23, 2006, Judge Kendall entered an order granting Governor Turnbull’s motion to strike. The order explained that Russell’s notice of removal and amended notice of removal were both procedurally defective because 28 U.S.C. § 1446 requires that such a notice be filed in the District Court, not the Superior Court. Judge Kendall’s order also stated Russell was not a defendant and thus was not entitled to remove the matter under 28 U.S.C. § 1441. Finally, the order noted that jurisdiction over federal questions is not exclusive to the federal courts.

On December 5, 2006, Russell petitioned this Court for a writ of mandamus directing the trial judge to hold no further proceedings in Turnbull v. Twenty-Sixth Legislature in the Superior Court; to cancel a hearing scheduled for December. 13, 2006; and to remove Turnbull v. Twenty-Sixth Legislature to federal court. Russell also seeks a writ directing Judge Kendall to recuse.1

[664]*664This Court examined the District Court’s records and determined that no notice of removal had been filed in the District Court. In an abundance of caution, on December 7, 2006, this Court directed the parties to file a copy of any notice of removal or any indicia of a notice of removal in Turnbull v. Twenty-Sixth Legislature, that may have been filed in the District Court of the Virgin Islands pursuant to 28 U.S.C. §§ 1441-1446. Such filings were due no later than 3:00 p.m. on December 8, 2006.

Russell subsequently filed a response in the Appellate Division of the District Court averring he had inadvertently filed a notice of removal only in the Superior Court. He attached to his response a document captioned “Amended Notice of Removal” that had been filed in the Superior Court. This Court received no filings indicating that any notice of removal had ever been previously filed in the District Court.

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Related

James v. De Jongh
52 V.I. 202 (Superior Court of The Virgin Islands, 2009)
Russell v. DeJongh
48 V.I. 674 (Virgin Islands, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
48 V.I. 659, 2006 WL 3613269, 2006 U.S. Dist. LEXIS 89537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-kendall-vid-2006.