Saturday, April 20, 2013
An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case. The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013).
The contempt holding arises from proceedings in a murder prosecution. The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide. Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder.
To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court. The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.
The writ of mandamus, however, turned out not to be the end to the matter. Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter. The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense." The judge went on to add the opinion was 'contrary to law and all notions of justice." The judge then recused himself for a number of reasons. Ultimately, one co-defendant died before trial; the other was acquitted by a jury.
Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts. The counts were:
- Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
- Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
- Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.
The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial. The Special Master recommended Judge Kendall be acquitted on all counts. The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.
Judge Kendall's appeal to the Third Circuit followed.
The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment. In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'" Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."
Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice." Kendall certainly is an interesting case and a recommended read.