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Media Alerts - In RE: The Honorable Leon A. Kendall - Third Circuit
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April 10, 2013
  In RE: The Honorable Leon A. Kendall - Third Circuit
Headline: Third Circuit Overturns Criminal Contempt Conviction of Judge and Holds First Amendment Protections Apply To Judicial Opinions

Area of Law: Civil Rights - First Amendment

Issue(s) Presented: Does the First Amendment protect Judges from prosecution for criminal contempt stemming from a judicial opinion or recusal?

Brief Summary:
Judge Leon Kendall of the Superior Court of the Virgin Islands was convicted of criminal contempt based on his criticism of the Virgin Islands Supreme Court in his opinion in a criminal case. Although a special master recommended that Kendall be acquitted of the contempt charges, the Virgin Islands Supreme Court held him guilty. After granting Kendall's petition for a writ of certiorari, the Third Circuit vacated the conviction, finding that a judge's words in a written opinion are protected by the First Amendment, and that the speech in question posed no clear and present danger to the administration of justice.

Extended Summary:
In 2009 Judge Leon Kendall ('Kendall') of the Superior Court of the Virgin Islands was convicted of criminal contempt after he issued an opinion in a criminal case, People v. Ford. Kendall's opinion offered criticism of a recent decision of the Virgin Islands Supreme Court ('V.I. S. Ct.'). After issuing his opinion, Kendall recused himself as the presiding judge on the Ford case. Finding Kendall's remarks to be inflammatory and insubordinate, the V.I. S. Ct. initiated indirect criminal contempt proceedings against Kendall.

Kendall's criminal contempt proceedings were heard before a special master, who eventually recommended Kendall be acquitted of the charges against him. Upon receiving the recommendation of the special master, the V.I. S.Ct. rejected the recommendation and held Kendall guilty of criminal contempt. Kendall petitioned the Third Circuit for a writ of certiorari, which was granted.

In looking at the underlying facts of the case, the Third Circuit held the First Amendment protected Kendall from criminal prosecution for statements made in his opinion in the Ford case. On an issue of first impression, the Third Circuit found a judge's words in a written opinion are sufficiently expressive to trigger the protections of the First Amendment.

As to the scope of the protection offered by the First Amendment, the Third Circuit limited the ability of the government to regulate judicial speech only where that speech, "poses a clear and present danger to the administration of justice." Unlike general discipline for judges and lawyers, criminal contempt goes far beyond mere discipline. Judges are no different than other citizens when it comes to criminal contempt proceedings. Punishment for the pure speech of judges in opinions is just as objectionable as punishment for the pure speech normal citizens.

Because Kendall's speech did not pose a clear and present danger to the administration of justice, the Third Circuit vacated his conviction for criminal contempt. Though Kendall's speech was critical of the V.I. S.Ct., it was not unconstitutional. That Kendall's opinion questioned and criticized the reputation of the judges of the V.I. S. Ct., this was not a sufficient justification for criminal punishment of speech. Furthermore, Kendall's opinion did not delay the administration of justice, nor did it contaminate potential jurors to be selected in the Ford case.

The Third Circuit also vacated Kendall's contempt conviction associated with his supposed failure to follow the writ of mandamus issued by the V.I. S.Ct.. Kendall did not willfully disobey the writ issued by the V.I. S.Ct. because he never issued a ruling in the Ford case after the writ of mandamus issued. Kendall's opinions merely set forth his reasons for recusal from the Ford case. Kendall's opinion did not disobey any order of the V.I. S.Ct. contained in its writ.

Finally, the Third Circuit refused to rule on Kendall's due process claims. Since they had already vacated Kendall's convictions on other grounds, there was no need to consider the due process claims.

See full opinion at

Panel (if known): Smith, Hardiman, Roth, Circuit Judges

Argument Date: December 6, 2012

Argument Location:

Date of Issued Opinion: April 3, 2013

Docket Number: No. 11-4471

Decided: Conviction Vacated.

Case Alert Author: David Herman

Samuel H. Hall, Jr., St. Thomas, VI (Counsel for the People of the Virgin Islands)
Howard M. Cooper, Julie E. Green, Boston, MA (Counsel for Leon A. Kendall)
Lawrence S. Lustberg, Joshua C. Gillette, Newark, NJ (Amicus Curiae, The ACLU Affiliates of New Jersey, Pennsylvania, and Delaware)

Author of Opinion: Judge Smith (Majority), Judge Roth (Concurrence)

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/10/2013 01:52 PM     3rd Circuit  

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