In Re: Leon A. Kendall v.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-4471
_____________
IN RE: THE HONORABLE LEON A. KENDALL,
Petitioner
_____________
On Writ of Certiorari to the Supreme Court
of the Virgin Islands
Supreme Court Misc. No. 2009-0025
Argued December 6, 2012
Before: SMITH, HARDIMAN, and ROTH, Circuit
Judges
(Filed: April 3, 2013)
Samuel H. Hall, Jr. [ARGUED]
Hall & Griffith
No. 91B Solberg
P.O. Box 305587
St. Thomas, VI 00803
Counsel for the People of the Virgin Islands
Howard M. Cooper [ARGUED]
Julie E. Green
Todd & Weld
28 State Street
31st Floor
Boston, MA 02109
Counsel for Leon A. Kendall
The ACLU Affiliates of New Jersey,
Pennsylvania, and Delaware
Lawrence S. Lustberg
Joshua C. Gillette
One Gateway Center
Newark, NJ 07102
Counsel for Amici Curiae in Support
of Leon A. Kendall
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
As Alexander Hamilton famously explained,
courts have “no influence over either the sword or the
purse.” The Federalist No. 78 (Alexander Hamilton).
They have “neither FORCE nor WILL but merely
2
judgment.” Id. Except for the persuasiveness of their
decisions, courts can compel obedience to their orders
only through their inherent power of contempt. Int’l
Union of United Mine Workers of Am. v. Bagwell, 512
U.S. 821, 831 (1994) (describing the “inherent contempt
authority” as a power “necessary to the exercise of all
other[]” judicial powers (quoting United States v.
Hudson, 11 U.S. (7 Cranch) 32, 34 (1812))). The
contempt power, however, is limited to “those instances
where the court must vindicate its authority.” Waste
Conversion, Inc. v. Rollins Envtl. Servs., 893 F.3d 605,
612 (3d Cir. 1990). It is “not made for the protection of
judges who may be sensitive to the winds of public
opinion. Judges are supposed to be [people] of fortitude,
able to thrive in a hardy climate.” Craig v. Harney, 331
U.S. 367, 376 (1947).
After the Virgin Islands Supreme Court issued a
writ of mandamus in a criminal case presided over by
former Superior Court Judge Leon A. Kendall, he
published an opinion chastising the mandamus decision
and recusing himself from the case due to alleged
prosecutorial misconduct. The Justices cited Kendall for
criminal contempt and eventually found him guilty
because his opinion, in their view, obstructed the
administration of justice and because his recusal was
pretextual in that he sought to avoid complying with the
writ of mandamus.
3
Kendall asks us to reverse his convictions. He
argues that his judicial opinion is protected by freedom of
speech and cannot therefore serve as a basis for criminal
contempt. As to that novel question, we hold that the
First Amendment protects a sitting judge from being
criminally punished for his opinion unless that opinion
presents a clear and present danger of prejudicing
ongoing proceedings. Kendall’s opinion did not pose
such a threat. We also agree with Kendall that there is
insufficient evidence that his recusal was pretextual.
Consequently, we will reverse the Virgin Islands
Supreme Court’s judgment and vacate all of Kendall’s
contempt convictions.
I.
A. The Underlying Criminal Case
Kendall’s criminal-contempt convictions arose
from actions he took while presiding over People v.
Ford, a criminal trial of Basheem Ford and Jermaine
Paris for killing an off-duty police officer. See generally
Crim. Nos. 76/2008, 109/2008 (V.I. Super. Ct. July 7,
2009). The prosecutor, Assistant Attorney General Jesse
Bethel, Jr., initially charged Ford and Paris with
manslaughter (among other crimes) in January 2008 but
later added charges of first-degree assault and first- and
second-degree murder.
Bethel subsequently expressed “serious doubt” to
4
his supervisor about whether he could successfully
convict Ford and Paris of more than voluntary
manslaughter. Although he later admitted that his
prosecutorial duties required him not to pursue charges
about which he had “serious doubt[s],” Bethel left the
murder charges pending and began plea negotiations with
counsel for Ford and Paris.
On January 16, 2009, Bethel left a voicemail with
the defendants’ counsel that offered Ford and Paris a plea
bargain to involuntary manslaughter in exchange for
dismissal of the remaining charges—an offer they
accepted ten days later. Bethel then reversed course,
claiming that he had offered a plea deal to voluntary
manslaughter and denying that any plea deal existed for
involuntary manslaughter. People v. Ford, 52 V.I. 30(V.I. Super. Ct. July 7, 2009) (depublished). Ford and
Paris each moved to enforce the involuntary-
manslaughter offer. During argument on the motions
before Kendall, Bethel said that even though he might
“have misspoken” or the defendant’s counsel may have
“misunderstood” the deal, he also insisted that he “made
it very clear” that “the deadline to respond [to the offer]”
was January 26, 2009, and that the defendants had not
done so. But a voicemail of Bethel’s plea offer told a
different story. That recording “unambiguously”
revealed that Bethel’s offer was for involuntary
manslaughter—not voluntary manslaughter, as Bethel
5
had later claimed—and that Bethel had never imposed
any deadline for the defendants to accept the offer.
Based on this evidence, Kendall concluded that
Bethel misrepresented his plea offer to the Court and held
that the defendants’ acceptance of Bethel’s offer had
created a binding plea agreement. Accordingly, Kendall
scheduled a change-of-plea hearing for February 2, 2009
at 4:00 p.m., cancelling jury selection and the jury trial.
Unhappy with this course of events, Bethel repeatedly
interrupted and traded jabs with Kendall, who
admonished him several times. That back-and-forth
culminated with Bethel informing Kendall that he would
not be present for the change-of-plea hearing. Kendall
responded that he did not “need to know that” and
proceeded to schedule the change-of-plea hearing
anyway.
On the morning of the hearing, Bethel appealed
Kendall’s decision to enforce the oral plea offer to the
Virgin Islands Supreme Court. And consistent with his
earlier promise, he did not show up for the change-of-
plea hearing at 4:00 p.m. that afternoon. After waiting
fifteen minutes without any sign of Bethel, Kendall
adjourned the hearing, held Bethel in contempt, and
issued a warrant for his arrest. At about 4:30 p.m.,
Bethel was arrested and remained under the control of the
Bureau of Corrections until the next morning. At the
time, Bethel told the media and the Virgin Islands
6
Supreme Court that he had been incarcerated overnight—
a statement that was later revealed to be false when
Bethel admitted that the warden had allowed him to
spend the night at home without judicial authorization
and without the $10,000 bail set by Kendall.
At a hearing the next day, Bethel apologized to
Kendall for his “tardiness” and explained that he was “in
the process of filing papers” and “looking for a parking
space.” Although Kendall concluded that these
explanations were false, he accepted an apology from
Bethel and “defer[red]” from any decision to hold him in
contempt. Kendall never revisited the issue of Bethel’s
contempt. At the end of the hearing, Kendall returned to
the issue of whether the plea offer for involuntary
manslaughter was enforceable. Kendall asked Bethel and
defense counsel to submit supplemental briefing on
Virgin Islands v. Scotland, 614 F.2d 360 (3d Cir. 1980), a
Third Circuit case holding that a prosecutor may
withdraw a plea offer at any time before the court accepts
it unless the defendant detrimentally relies on the offer
by, for example, pleading guilty. Kendall stated that “if
Scotland is dispositive, the Court will proceed to trial; if
not, the Court will enforce the plea agreement.”
Beginning that same day, the Virgin Islands Daily
News published several articles about Bethel’s arrest,
detention for contempt, and eventual release. One of the
7
articles recounted Bethel’s earlier misrepresentations at
the hearing about the oral plea offer.
On February 5, Bethel moved for reconsideration of
Kendall’s decision to enforce the plea agreement to
involuntary manslaughter, but Kendall denied that
motion. He concluded that the revelation of the plea
agreement in numerous press reports (including the Daily
News article) had tainted the jury pool and therefore
made it impossible for Ford and Paris to receive a fair
trial. Consequently, he reasoned that Ford and Paris had
detrimentally relied on the plea agreement, and so he had
to enforce it. Kendall then rescheduled the change-of-
plea hearing for March 11, 2009.
B. The Writ of Mandamus Against Judge Kendall
Following Kendall’s decision to enforce the plea
agreement for involuntary manslaughter, Bethel filed an
amended notice of appeal with the Virgin Islands
Supreme Court, indicating that there was no factual basis
for acceptance of a guilty plea to involuntary
manslaughter. Bethel simultaneously petitioned the
Virgin Islands Supreme Court for a writ of mandamus
directing Kendall not to enforce the plea agreement.
In the petition, Bethel made several
mischaracterizations and also took swipes at Kendall. He
claimed that Kendall had publicly “commented on
[People v. Ford in a manner] adverse to the People’s
8
position as reported in the Virgin Islands Daily News.”
He said that Kendall “participated in plea negotiations
directly by . . . mandating what the plea agreement
should be in its entirety.” And in reference to his
absence from the initial change-of-plea hearing, Bethel
claimed that he had told Kendall “he would not be
appearing on Monday, February 2, 2009, for the Change
of Plea, but he did not say and never intended to convey
that he would not be appearing at all.” Kendall declined
the Virgin Islands Supreme Court’s invitation to appear
in the mandamus action in response to Bethel’s petition.
The Virgin Islands Supreme Court denied Bethel’s
direct appeal because Kendall’s rulings were not yet final
but granted his petition for mandamus. According to the
Virgin Islands Supreme Court, settled United States
Supreme Court precedent establishes that the
“government may unilaterally withdraw a plea offer,
even if . . . the defendant” promises to accept the offer,
because a “plea agreement, as a unilateral contract,
cannot become binding on the parties through the
defendant’s mere promise of performance but by the
defendant’s actual performance—a change of plea to
guilty.” And although a limited exception to this rule
exists when the defendant detrimentally relies upon a
plea offer, see Scotland, 614 F.2d at 365, the Virgin
Islands Supreme Court concluded that Ford and Paris had
not detrimentally relied on the plea offer to involuntary
manslaughter at the time it was withdrawn. In the Virgin
9
Islands Supreme Court’s view, Kendall had incorrectly
and prematurely concluded that the defendants could not
get a fair trial. Rather, Kendall was required “‘at the very
least . . . [to] conduct[] an immediate voir dire inquiry to
determine if the jurors had read the [media reports] and,
if they had, whether they could nevertheless render a fair
and true verdict.’” Id. (quoting United States v. New
Jersey, 519 F.2d 1356, 1357 (3d Cir. 1975)). In addition,
Kendall had “‘an affirmative constitutional duty to
minimize the effects of [any] prejudicial pretrial
publicity.’” 2 Ohio App. 16 (quoting United States v. Scarfo,
263 F.3d 80, 90 (3d Cir. 2001)). Consequently, “even if
[Kendall] could have properly . . . found that pretrial
publicity prejudiced [Ford and Paris], [he] was still
obligated to employ less drastic curative measures, such
as a continuance or change of venue, prior to ordering the
extreme remedy of specific performance of a withdrawn
plea offer.”
In issuing its writ of mandamus on May 13, 2009,
the Virgin Islands Supreme Court reversed Kendall’s
orders enforcing the oral plea offer, vacated his order
scheduling a change-of-plea hearing for March 11, 2009,
and remanded the case “for proceedings consistent with”
its opinion. The writ did not provide any additional
instructions to Kendall.
10
C. Kendall’s Subsequent Opinion and Recusal
After the writ of mandamus issued, Ford and Paris
accepted Bethel’s offer to plead guilty to voluntary
manslaughter, and Kendall scheduled a change-of-plea
hearing. At the hearing, Bethel proffered what the
evidence would show at trial, and Kendall conducted a
plea colloquy with Ford and Paris to determine whether
they agreed with Bethel’s account. Ford and Paris,
though, stuck to their story that they were acting in self-
defense. And that story was consistent with Bethel’s
own review of the evidence: in a 2008 memorandum to
his superiors, Bethel concluded that the victim “initiated
a deadly confrontation with [Ford] by threatening and
chasing him with an ax handle which unfortunately
resulted in the death of [the victim] by gunshots from the
defendants.” Kendall concluded (and Bethel agreed) that
there was an insufficient factual basis to support the
defendants’ guilty plea to voluntary manslaughter. As a
result, Kendall had no choice but to reject the pleas and
plea agreement.
Rejecting the plea agreement left Kendall in what
he considered a difficult situation. Notwithstanding the
insufficient factual basis for voluntary manslaughter and
Bethel’s own “serious doubt,” Bethel “unequivocally”
planned to prosecute Ford and Paris for not only the
voluntary manslaughter, but also first-degree assault,
first- and second-degree murder, aiding and abetting
11
third-degree assault, and unauthorized possession of a
firearm. That decision to pursue the more-serious
charges, as Kendall noted, contradicted Bethel’s own
factual proffer on how the victim died: first-degree
assault requires “intent to murder” and murder requires
proof of “malice aforethought,” yet Bethel’s own factual
proffer showed that it was the victim who “initiated a
deadly confrontation” with the defendants. In Kendall’s
view, Bethel’s continued pursuit of these unsupported
charges would “be tantamount to perpetrating a fraud
upon the Court.”
But Kendall recognized that he had “to follow [the
Virgin Islands Supreme Court’s] directions with respect
to the disposition of this matter.” And having rejected
the plea agreement, Kendall’s “only alternative [was] to
have this matter set down for trial according to the
Supreme Court.” With those determinations made,
Kendall promised the parties that he would memorialize
his reasons for rejecting the plea agreement in a written
opinion.
On July 7, 2009, Kendall filed a thirty-one page
opinion “for publication.” As promised, the Ford
opinion recounted the background of the criminal case,
including the events that gave rise to the writ of
mandamus, and memorialized his reasons for rejecting
the plea agreement to voluntary manslaughter. But the
opinion also took two unexpected turns, both of which
12
later became the basis for Kendall’s criminal-contempt
convictions: First, the opinion offered a point-by-point
denunciation criticism of the Virgin Islands Supreme
Court’s decision to issue the writ of mandamus. The
opinion characterized the Virgin Islands Supreme Court’s
reasoning as erroneous, “improper,” having “no rational
basis,” lacking “merit,” and “making no sense.” In re
Kendall, S. Ct. Misc. No. 2009-0025, 2011 WL 4852282,
at *4 & n.6 (V.I. Oct. 12, 2011). Indeed, the opinion
went so far as to say that the writ of mandamus “was
apparently sought and issued to facilitate [Bethel’s]
blatant misconduct and perpetrate a fraud on the
[Superior] Court.” Id. at *4 n.6. Its issuance, Kendall
wrote scathingly, was therefore “contrary to law and all
notions of justice.” Id.
Second, Kendall recused himself from presiding
over further proceedings in the Ford case. Because of
Bethel’s misrepresentations concerning the oral plea
agreement and his continued pursuit of more-serious
charges that contradicted his own factual proffer, Kendall
lost the ability to believe “any of [Bethel’s] further
representations” in the Ford case. Moreover, Bethel’s
decision to press the unsupported, more serious charges
enhanced Kendall’s nagging concern that the extensive
pretrial publicity would deny the defendants’ their Sixth
Amendment rights to a fair and impartial jury. In short,
Kendall said he could no longer “be a party to [Bethel’s]
egregious misconduct.”
13
After Kendall issued this opinion, People v. Ford
was reassigned to James S. Carroll III. Judge Carroll
held a pretrial conference on July 23, 2009. The People
were not prepared to proceed to trial at that time because
certain witnesses were unavailable. So Judge Carroll
scheduled jury selection and trial for November 23, 2009.
Meanwhile, Ford and Paris petitioned the Third
Circuit for a writ of certiorari to review the Virgin
Islands Supreme Court’s writ of mandamus and its
conclusion that Bethel’s plea offer for involuntary
manslaughter was not enforceable. When November 23
arrived, the government indicated that it was not prepared
to begin trial because it was awaiting a ruling by the
Third Circuit on the defendants’ certiorari petition. In
fact, the Third Circuit had denied the petition a few days
earlier on November 17. Judge Carroll nonetheless
continued jury selection until April 12, 2010, at the
request of Paris’s counsel because two defense witnesses
either could not be located or had to be flown to the
Virgin Islands. Although Ford died before he could go to
trial, a jury ultimately acquitted Paris.
D. The Criminal-Contempt Charges Against Kendall
The Virgin Islands Supreme Court did not take
Kendall’s recalcitrance lying down. They had no
mechanism for disciplining Kendall: in an earlier
challenge by Kendall, the statute authorizing the Virgin
14
Islands Commission on Judicial Discipline to investigate
and remove Superior Court judges was struck down by
this Court as unconstitutional. See Kendall v. Russell,
572 F.3d 126, 138 (3d Cir. 2009). Nor had the Virgin
Islands Supreme Court yet issued new disciplinary rules
applicable to judges.
Believing that they had no other alternatives, the
Justices ordered Kendall to show cause why he should
not be held in criminal contempt. That show-cause order
charged Kendall with three counts of indirect 1 criminal
contempt:
1
Contempt can be either direct or indirect. See United
States v. Dixon, 509 U.S. 688, 723 n.1 (1993) (White, J.,
concurring in the judgment in part and dissenting in part)
(“The distinction between, on the one hand, direct and
summary contempt (i.e., contempt for acts occurring in
the courtroom and interfering with the orderly conduct of
business), and, on the other hand, nonsummary contempt,
possesses old roots in the [Supreme] Court’s cases.”).
Direct contempt describes “the judge’s authority to
[summarily] impose punishment, without any form of
trial, on one who engages in contumacious behavior in
the judge’s presence,” such as a party’s repeated
outbursts during a hearing or a witness’s refusal to testify
during trial. Earl C. Dudley, Jr., Getting Beyond the
Civil/Criminal Distinction, 79 Va. L. Rev. 1025, 1030
15
(1) Count 1: Obstructing the
administration of justice by issuing
the Ford opinion critical of the
Justices’ writ of mandamus;
(2) Count 2: Failing to comply with the
writ of mandamus by refusing to
schedule People v. Ford 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
(3) Count 3: Misbehaving in his official
transactions as an officer of the court
by issuing his Ford opinion and
disobeying the writ of mandamus.
The Virgin Islands Supreme Court appointed a
special prosecutor to pursue the criminal-contempt
charges and a Special Master to rule on all non-
dispositive motions, manage discovery, preside over the
trial, and recommend findings of fact and conclusions of
law. Much like the relationship between a magistrate
(1993). Indirect contempt targets acts “committed
outside the presence of the court for which some fact-
finding process is concededly necessary,” such as a
person’s refusal to obey a court order. Id.
16
judge and a district judge, see generally 28 U.S.C. § 636,
the Justices had the ultimate authority to adopt or reject
the Special Master’s recommendations.
Before trial, Kendall moved to disqualify all three
Justices of the Supreme Court because they were the
target of his opinion’s criticism. The Justices denied this
motion, and Kendall’s case proceeded to trial. After the
People rested, Kendall moved for a judgment of acquittal
based on insufficient evidence. He also moved for a
mistrial, arguing that the Justices violated his due-process
right by not personally attending the trial and observing
the witnesses’ live testimony before making findings of
fact in the case. The Special Master recommended denial
of this motion, and the Supreme Court adopted that
recommendation.
At the conclusion of the trial, the parties submitted
proposed findings of fact and conclusions of law to the
Special Master. The Special Master recommended that
Kendall be acquitted on all charges. After considering
supplemental briefs from both sides and reviewing a
video recording of a “majority” of the proceedings before
the Special Master, the Virgin Islands Supreme Court
rejected the Special Master’s ultimate recommendation
of acquittal and found Kendall guilty on all counts.
17
In sentencing Kendall, the Justices ordered him to
pay a $1,000 fine on Count 1 2 but stayed sentencing for
the remaining charges because all three charges arose
from the same conduct. The Supreme Court also
depublished Kendall’s Ford opinion.
E. This Appeal
Kendall sought review of his convictions by
petitioning this Court for a writ of certiorari.3 We
granted his petition on the following questions:
2
The Virgin Islands Supreme Court subsequently stayed
payment of the fine pending our review.
3
The Virgin Islands Supreme Court had inherent and
statutory jurisdiction over Kendall’s contempt
proceeding. See 4 V.I. Code § 243(4) (“Every court shall
have power . . . [t]o compel obedience to its judgments,
orders, and process, and to the orders of a judge out of
court, in all actions, or proceedings pending therein[.]”);
4 V.I. Code § 281(2) (“Every judicial officer shall have
power . . . [t]o compel obedience to his lawful
orders[.]”); Young v. United States, 481 U.S. 787, 793
(1987) (“[I]t is long settled that courts possess inherent
authority to initiate contempt proceedings for
disobedience to their orders . . . .”). We have certiorari
jurisdiction under 48 U.S.C. § 1613, which grants the
Third Circuit certiorari jurisdiction to review final
decisions of the Virgin Islands Supreme Court. See
18
1. Whether the First Amendment limits the
imposition of criminal contempt for
statements made in a judge’s written
opinion and if so, the scope of the
limitation and its application in this case;
2. Whether the Virgin Islands Supreme
Court erred in imposing criminal
contempt on the charges of failure to
comply with its mandamus order of May
13, 2009, in In re People of the Virgin
Islands, V.I. S. Ct. Civ. No. 2009-021;
3. Whether the Virgin Islands Supreme
Court Justices erred in not recusing
themselves from this matter; and
4. Whether [Kendall] impliedly consented,
or waived any challenge, to conducting
the show cause hearing before a special
master and, if not, the propriety of that
procedure.
Kendall v. Daily News, __ F.3d __, No. 11-4162, 2013
WL 856433 (3d Cir. Mar. 8, 2013) (holding that
Congress’s recent elimination of the Third Circuit’s
certiorari jurisdiction over decisions of the Virgin Islands
Supreme Court does not affect, at a minimum, certiorari
petitions filed before the effective date of the
jurisdiction-stripping act).
19
II.
On Count 1, Kendall was convicted of indirect
criminal contempt for obstructing the administration of
justice by publishing inflammatory remarks about the
Virgin Islands Supreme Court in his Ford opinion.
Kendall argues that the remarks in his Ford opinion are
protected by freedom of speech and therefore cannot
serve as a basis for his conviction. 4 We agree.
4
The ACLU, as amicus, argues that Kendall is shielded
from criminal contempt by absolute judicial immunity.
According to the ACLU, “if judges are immune from
civil liability from third parties even for judicial actions
done maliciously, with an improper motive, in bad faith,
or which are unfair or controversial, then . . . they ought
not face criminal liability for a mere written opinion.”
ACLU Br. at 11. We do not need to address this
argument because it is not properly before us. Judicial
immunity is outside the questions on which we granted
certiorari. See 3d Cir. LAR 112.10(a) (“If a petition for
writ of certiorari is granted, . . . the case shall proceed as
other appeals [do] . . . but with review limited to the
questions on which the writ of certiorari was granted.”);
see also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.
Philips Corp., 510 U.S. 27, 32–33 (1993) (explaining the
limited categories of “unusual circumstances,” in which
the Court would consider an issue on which certiorari
20
was not granted, such as “the possible absence of
jurisdiction” (quotation marks and citations omitted)).
What’s more, Kendall did not raise this argument before
the Virgin Islands Supreme Court or in any of his briefs
before this Court. See AT&T, Inc. v. FCC, 582 F.3d 490,
495 (3d Cir. 2009) (“An appellant waives an argument in
support of reversal if he does not raise that argument in
his opening brief.”), rev’d on other grounds, FCC v.
AT&T, Inc., 131 S. Ct. 1177 (2011).
In any event, Kendall would not be able to shoulder his
burden of showing that he is entitled to judicial immunity
from criminal contempt. Antoine v. Byers & Anderson,
Inc., 508 U.S. 429, 432 n.4 (1993). Judicial immunity is
a common-law doctrine designed to protect judicial
independence. Nixon v. Fitzgerald, 457 U.S. 731, 759
n.2 (1982) (Burger, C.J., concurring) (“[T]he
Constitution provides no hint that either judges,
prosecutors, or congressional aides should be so
protected [through absolute immunity]. Absolute
immunity for judges and prosecutors is seen to derive
from the common law and public policy . . . .”). And
while “[f]ew doctrines were more solidly established at
common law than the immunity of judges from liability
for damages for acts committed within their judicial
jurisdiction,” Cleavinger v. Saxner, 474 U.S. 193, 200
(1985) (quoting Pierson v. Ray, 386 U.S. 547, 553–54
(1967)), the same was not true for contempt or criminal
21
liability, Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991)
(recognizing that “a judge is not absolutely immune from
criminal liability”)); O’Shea v. Littleton, 414 U.S. 488,
503 (1974) (same). As the Supreme Court has
recognized, at common law, superior courts routinely
used their contempt power to hold inferior judges
accountable for violating their writs and orders. Pulliam
v. Allen, 466 U.S. 522, 532 n.19 (1984) (noting that a
judge to whom a writ of mandamus or prohibition is
issued “risks contempt for violating the writ,” and that
“although courts properly are reluctant to impose costs
against a judge for actions taken in good-faith
performance of his judicial responsibilities, a court, in its
discretion, may award costs against a respondent judge”);
see, e.g., United States v. Justices of Lauderdale Cnty.,
10 F. 460 (Cir. Ct., W.D. Tenn. 1882); Lapique v.
Superior Court of L.A. Cnty., 229 P. 1014 (Cal. Dist. Ct.
App. 1924); In re Smith, 83 P. 167 (Cal. Dist. Ct. App.
1905); Pittman v. Hagans, 91 Ga. 107 (1892);
Havemeyer v. Superior Court of City and Cnty. of S.F.,
87 Cal. 267, 275 (1890); In re Cary, 10 F. 622, 631
(S.D.N.Y. 1882); Gorham v. Luckett, 45 Ky. 638 (1846);
People v. Pearson, 4 Ill. 270 (1841); Floyd v. Barker, 77
Eng. Rep. 1305 (K.B. 1607); see also 3 William
Hawkins, A Treatise of the Pleas of the Crown ch. 8 § 74
(7th ed. 1795) (“Justices of the peace are not punishable
civilly for acts done by them in their judicial capacities,
but if they abuse the authority with which they are
22
entrusted, they may be punished criminally at the foot of
the king by way of information.”). This practice held fast
until codes of judicial conduct and judicial disciplinary
commissions were created in the mid-twentieth century.
See Jeffrey M. Sham, State Judicial Conduct
Organizations, 76 Ky. L.J. 811, 811 (1987–88)
(recounting the history of judicial discipline).
Indeed, there would be little reason to extend judicial
immunity to criminal contempt. Unlike the danger that
civil liability poses to judicial independence, any threat to
judicial independence from criminal liability is “severely
curtail[ed]” by “the limitations already imposed” by the
exceptional nature of mandamus and the constitutional
protections for criminal prosecutions (such as the right to
a trial by jury, burden of proof, and presumption of
innocence). Pulliam, 466 U.S. at 537–38 (rejecting
Justice Powell’s dissenting argument that the “specter of
contempt proceedings [against a judge who] violat[es]
. . . injunctive orders is likely to inhibit unbiased judicial
decisionmaking as much as the threat of liability for
damages”). And an inferior-court judge’s freedom to
disobey a superior court’s order is not the sort of
independent judicial decision-making that immunity is
designed to protect. Accord United States v. Claiborne,
727 F.2d 842, 847–48 (9th Cir. 1984) (rejecting a judge’s
argument that separation-of-powers concerns should
prevent executive officers from prosecuting federal
23
A. The Scope of Constitutional Protection for Judicial
Speech
The Supreme Court has yet to address the scope of
a judge’s freedom of speech as a sitting judge. See
Republican Party of Minn. v. White, 536 U.S. 765, 796
(2002) (Kennedy, J., concurring) (“This case does not
present the question whether a State may restrict the
speech of judges because they are judges—for example,
as part of a code of judicial conduct; the law here
regulates judges only when and because they are
candidates.”). Yet other federal and state courts have
repeatedly held that a “judge does not check his First
Amendment rights at the courthouse door, to be
reclaimed at the expiration of his judicial tenure.” 5 In re
judges for acts involving exercise of their judicial
power); United States v. Hastings, 681 F.2d 706, 710–11
(11th Cir. 1982) (same); United States v. Isaacs, 493 F.2d
1124, 1140–44 (7th Cir. 1974) (same). With no support
in history, law, or logic, we cannot extend judicial
immunity to criminal contempt. Cf. Dennis v. Sparks,
449 U.S. 24, 29 (1980) (rejecting an extension of
derivative judicial immunity because the petitioners had
“pointed to nothing indicating that, historically, judicial
immunity insulated from damages liability those private
persons who corruptly conspire with the judge”).
5
E.g., In re Vincent, 172 P.3d 605, 607 (N.M. 2007)
(“[W]e recognize that there are nevertheless
24
Judicial Misconduct, 632 F.3d 1289, 1289 (9th Cir. Jud.
Counc. 2001) (Kozinksi, C.J., sitting alone).
We agree. What a judge says in an opinion is
sufficiently expressive to trigger First Amendment
review. The judge “inten[ds] to convey a particularized
message” by explaining his legal analysis and
conclusions, and there is a “great” likelihood that the
opinion’s message would be understood by its
audience—no less than if the judge had published the
same analysis and commentary in a law review article.6
Texas v. Johnson, 491 U.S. 397, 404 (1989) (quotation
marks and citations omitted). Indeed, as pure speech on
constitutional limitations on the regulation of judicial
speech.”); In re Sanders, 995 P.2d 369, 375 (Wash.
1998) (“A judge does not surrender First Amendment
rights upon becoming a member of the judiciary.”).
6
We do not decide, however, whether a judge’s ultimate
rulings and judgments (as opposed to the explanations
and commentary offered in opinions) also trigger First
Amendment review. See Nev. Comm’n on Ethics v.
Carrigan, 131 S. Ct. 2343, 2351 n.5 (2011) (“A legislator
voting on a bill is not fairly analogized to one simply
discussing that bill or expressing an opinion for or
against it. The former is performing a governmental act
as a representative of his constituents; only the latter is
exercising personal First Amendment rights.” (emphasis
added) (citations omitted)).
25
public issues, a judicial opinion “occupies the highest
rung of the hierarchy of First Amendment values” and is
thus “entitled to special protection.” Snyder v. Phelps,
131 S. Ct. 1207, 1215 (2011) (quotation marks and
citations omitted). To be sure, the rationale and holdings
in an opinion often carry the force of law, but the mere
fact that an opinion has legal effect does not “somehow
deprive[] [an opinion] of its expressive component.” Doe
v. Reed, 130 S. Ct. 2811, 2818 (2010); see also Nev.
Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2351
(2011) (“It is one thing to say that an inherently
expressive act remains so despite its having
governmental effect, but it is altogether another thing to
say that a governmental act becomes expressive simply
because the governmental actor wishes it to be so. We
have never said the latter is true.”). No one contends that
Kendall’s opinion was not speech.
Having concluded that a judicial opinion qualifies
as “speech,” we must determine the scope of its
protection. Kendall argues that a judicial opinion is
criminally punishable only under the government’s
limited authority as sovereign to regulate speech that
poses a clear and present danger to the administration of
justice. By contrast, the Virgin Islands Supreme Court
relied on the government’s broader authority to discipline
attorneys for speech that is substantially likely to
prejudice ongoing proceedings and held that this broader
authority allows the government to criminally punish
26
judicial speech that poses the same threat. 7 We agree
with Kendall.
As a general matter, the First Amendment protects
freedom of expression regardless of its content or
viewpoint and “regardless of whether it is disruptive,
offensive, vulgar or insulting.” J.S. v. Blue Mountain
Sch. Dist., 650 F.3d 915, 936 (3d Cir. 2011) (en banc)
(Smith, J., concurring). Yet that rule is not absolute.
When acting as sovereign, the government is empowered
to impose time, place, and manner restrictions on speech,
see Ward v. Rock Against Racism, 491 U.S. 781, 791
7
Because this case involves a sitting judge’s speech
about one of his pending cases, we need not decide the
constitutional standard for evaluating judicial speech in
other contexts, such as a speech about a case over which
he is not presiding or about topics unrelated to any
pending case. Cf., e.g., Miss. Comm’n on Judicial
Performance v. Wilkerson, 876 So. 2d 1006, 1011–12
(Miss. 2004) (en banc) (applying strict scrutiny to a
state’s decision to discipline a judge for his extra-judicial
statements on gay rights); In re Hey, 452 S.E.2d 24, 33
(W.Va. 1994) (“A judge may not be disciplined
consistent with the First Amendment . . . for his remarks
during a radio interview in which he discussed his own
disciplinary proceedings, criticized a member of his
investigative panel, and stated his intention to take some
reactive and lawful measure against the panel member.”).
27
(1989), make reasonable, content-based decisions about
what speech is allowed on government property that is
not fully open to the public, see Ark. Educ. Television
Comm’n v. Forbes, 523 U.S. 666, 674–75 (1998), decide
what viewpoints to espouse in its own speech or speech
that might be attributed to it, see Johanns v. Livestock
Mktg. Ass’n, 544 U.S. 550, 560 (2005), and categorically
restrict unprotected speech. 8 Sometimes, however, the
government acts in a capacity that goes beyond merely
being sovereign, and it gains additional authority to
regulate speech in those capacities. See, e.g., Garcetti v.
Ceballos, 547 U.S. 410, 419–20 (2006) (government as
public employer); Morse v. Frederick, 551 U.S. 393,
369–97 (2007) (government as K-12 educator); Gentile v.
8
Examples of categorically unprotected speech include
obscenity, see Miller v. California, 413 U.S. 15, 23
(1973), child pornography, see New York v. Ferber, 458
U.S. 747, 764–65 (1982), advocacy that imminently
incites lawless action, see Brandenburg v. Ohio, 395 U.S.
444, 447–48 (1969) (per curiam), fighting words, see
Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72
(1942), true threats, see Watts v. United States, 394 U.S.
705, 708 (1969) (per curiam), commercial speech that is
false, misleading, or proposes illegal transactions, see
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n
of N.Y., 447 U.S. 557, 562, 566–67 (1980), and some
false statements of fact, see generally United States v.
Alvarez, 132 S. Ct. 2537, 2546–47 (2012).
28
State Bar of Nev., 501 U.S. 1030, 1066, 1075 (1991)
(government as regulator of attorneys); Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989) (government as prison
administrator); FCC v. Pacifica Found., 438 U.S. 726,
748–49 (1978) (government as regulator of broadcast
radio and television); Parker v. Levy, 417 U.S. 733, 758–
59 (1974) (government as military commander).
In the realm of speech about ongoing judicial
proceedings, the government’s authority as sovereign
provides only limited power to criminally punish speech
by those outside the judicial system. As the Supreme
Court made clear in a trio of cases involving members of
the press held in criminal contempt for their news stories,
speech about ongoing judicial proceedings is criminally
punishable only if it poses a clear and present danger of
obstructing or prejudicing the ongoing proceedings.
Craig, 331 U.S. at 372; Pennekamp v. Florida, 328 U.S.
331, 348 (1946); Bridges v. California, 314 U.S. 252,
260–63 (1941); see also Standing Comm. on Discipline
of U.S. Dist. Court for Cent. Dist. of Cal. v. Yagman, 55
F.3d 1430, 1442 (9th Cir. 1995). The government has
greater authority to discipline speech about an ongoing
judicial proceeding, though, when the speaker is an
attorney involved in that proceeding. See Gentile, 501
U.S. at 1075. Because the attorney is likely to be
viewed as “especially authoritative” and his statements
are more “likely to influence the actual outcome of the
trial,” the government has an overriding interest in
29
limiting the attorney’s prejudicial comments to preserve
the litigants’ constitutional rights to an impartial jury. Id.
at 1074–75. Consequently, the attorney’s speech is
subject to discipline at a lower threshold: when it is
substantially likely to prejudice the proceedings. Id. at
1075.
That brings us to the question in this case: does the
government’s broader authority to discipline attorney
speech about ongoing proceedings also permit the
government to hold a judge in criminal contempt for his
speech about ongoing proceedings? We answer that
question with a resounding “No.” Criminal contempt is
no mere disciplinary tool. It derives, like all crimes, from
a government’s power as sovereign. See Eash v. Riggins
Trucking, Inc., 757 F.2d 557, 565–66 (3d Cir. 1985)
(“[A] court’s broad power to discipline attorneys as
officers of the court for misconduct not properly
categorized as contempt is substantially different from
the contempt power.”); Cammer v. United States, 350
U.S. 399, 408 n.7 (1956) (“‘The power to disbar an
attorney proceeds upon very different grounds’ from
those which support a court’s power to punish for
contempt.” (quoting Ex Parte Robinson, 86 U.S. (19
Wall.) 505, 512 (1873))); see also Bagwell, 512 U.S. at
826 (describing criminal contempt as “a crime in the
ordinary sense” (quoting Bloom v. Illinois, 391 U.S. 194,
201 (1968)). Because the government’s use of the
criminal-contempt power is the sine qua non of a
30
sovereign act, the government has no greater authority to
hold someone in criminal contempt for their speech about
ongoing proceedings than it would to criminally punish
any speech. The government’s additional authority to
discipline attorney speech is therefore inapposite. And
that means the speech must present a clear and present
danger—not just a substantial likelihood—of obstructing
the administration of justice. Consequently, the First
Amendment protects a judge’s opinion from criminal
punishment unless his speech poses a clear and present
danger to the administration of justice. 9
9
The Supreme Court has not yet been asked to resolve
whether or how Garcetti’s government-employer
rationale extends to disciplinary restrictions on a judge’s
on-the-job speech. See White, 536 U.S. at 796 (Kennedy,
J., concurring) (“Whether the rationale of [our public-
employee-speech cases] could be extended to allow a
general speech restriction on sitting judges—regardless
of whether they are campaigning—in order to promote
the efficient administration of justice, is not an issue
raised here.”); see also In re Vincent, 172 P.3d at 608
(“[E]valuating the constitutionality of restrictions on the
political speech of a judge does not fit neatly into the
existing analytical framework for First Amendment
analysis. Selecting the appropriate framework for
analysis has become even more difficult since White.”)
31
The People, however, argue that Kendall’s opinion
should receive no constitutional protection from criminal
punishment. See People’s Br. at 15–16. The People
analogize the Virgin Islands Supreme Court’s authority
to punish lower-court judges’ speech to the government’s
broad authority as public employer to discipline an
employee for speech made pursuant to his official duties,
see Garcetti, 547 U.S. at 421, and to the government’s
broad authority as military commander to punish an
officer’s insubordinate speech towards his superiors, see
United States v. Howe, 37 C.M.R. 429 (1967).
These analogies fall flat. As we have already
explained, contempt is not discipline: the Virgin Islands
Supreme Court acted as sovereign, not as public
employer, by criminally punishing Kendall’s speech.
And the Virgin Islands Supreme Court’s supervisory
capacity over lower-court judges is hardly similar to the
government’s capacity as military commander. The
Supreme Court has long differentiated military-speech
restrictions from those in the civilian community based
on considerations unique to the military. See, e.g.,
Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (“Our
review of military regulations challenged on First
Amendment grounds is far more deferential than
constitutional review of similar laws or regulations
Since that question is not implicated here, we leave it for
another day.
32
designed for civilian society. The military need not
encourage debate or tolerate protest to the extent that
such tolerance is required of the civilian state by the First
Amendment[.]”); Parker v. Levy, 417 U.S. 733, 758–59
(1974) (“The armed forces depend on a command
structure that at times must commit men to combat, not
only hazarding their lives but ultimately involving the
security of the Nation itself. Speech that is protected in
the civil population may nonetheless undermine the
effectiveness of response to command. If it does, it is
constitutionally unprotected.” (citations omitted)). Those
same considerations have no force in a civilian court
system: Superior courts do not depend on an instinctive
obedience to command structure that is critical to
executing split-second battlefield orders. Nor do court
systems have a similar need to restrict the role of
dissent—unlike the military, the judicial mission depends
on courts being deliberative bodies. Cf. United States v.
Grimley, 137 U.S. 147, 153 (1890) (“An army is not a
deliberative body. It is the executive arm. Its law is that
of obedience. No question can be left open as to the right
to command in the officer, or the duty of obedience in the
soldier.”).
In summary, the First Amendment prevents the
government from criminally punishing a sitting judge’s
speech about one of his pending cases unless it poses a
clear and present danger to the administration of
33
justice.10 Cf. Citizens United v. FEC, 130 S. Ct. 876, 904
(2010) (“If the First Amendment has any force, it
prohibits Congress from fining or jailing citizens, or
associations of citizens, for simply engaging in political
10
The Virgin Islands Supreme Court did not base
Kendall’s conviction on a conclusion that his words were
defamatory. See Standing Comm. on Discipline of U.S.
Dist. Court for Cent. Dist. of Cal. v. Yagman, 55 F.3d
1430, 1438 (9th Cir. 1995) (“It follows that statements
impugning the integrity of a judge may not be punished
unless they are capable of being proved true or false
. . . .”) And no such conclusion would be possible here.
Contrary to the Virgin Islands Supreme Court’s
characterization, Kendall’s remarks cannot be reasonably
interpreted as “blatantly accus[ing], without proof, the
Justices . . . of gross dereliction of their sworn duties and
of committing illegal acts.” Kendall’s statements were
nothing more than “rhetorical hyperbole” using language
in a “loose, figurative sense” and therefore cannot be
interpreted as asserting actual facts about the Justices.
Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264,
284–85 (1974); see also id. at 286 (holding that a union
newsletter’s description of a “scab” as a “traitor” could
not be construed as a factual assertion); Greenbelt Coop.
Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (holding
that a description of a public figure’s negotiating position
as “blackmail” could not be construed as charging the
plaintiff with committing a crime).
34
speech.”).
B. Whether Kendall’s Opinion Crossed the
Constitutional Line
We must vacate Kendall’s conviction because his
opinion did not pose a clear and present danger of
prejudicing the ongoing Ford proceedings. In the usual
course of reviewing the sufficiency of evidence, we
“review the record in the light most favorable to the
prosecution to determine whether any rational trier of
fact could have found proof of guilt beyond a reasonable
doubt based on the available evidence.” United States v.
Wolfe, 245 F.3d 257, 261 (3d Cir. 2001) (citing Jackson
v. Virginia, 443 U.S. 307 (1979)). But “in cases raising
First Amendment issues,” we have an “obligation to
‘make an independent examination of the whole record’
in order to make sure that ‘the judgment does not
constitute a forbidden intrusion on the field of free
expression.’” Gentile, 501 U.S. at 1038 (quoting Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
499 (1984)). Consequently, we are “compelled to
examine for [ourselves] the statements in issue and the
circumstances under which they were made to see
whether or not they do carry” the requisite threat to the
administration of justice. Id. (quoting Pennekamp, 328
U.S. at 335); see also United States v. Cutler, 58 F.3d
825, 834 (2d Cir. 1995) (“Suffice it to say that in First
Amendment cases, we must scrutinize carefully the lower
35
court’s application of the relevant standards to the facts
at hand.”).
As we have explained, obstruction of the
administration of justice contemplates interference with
“the pendency of some sort of judicial proceeding.”
United States v. Walasek, 527 F.2d 676, 678 (3d Cir.
1975). But obstruction of the administration of justice
should “not be confused with obstruction of justice.
Justice may be obstructed by mere inaction, but
obstruction of the administration of justice requires
something more—some act that will interrupt the orderly
process of the administration of justice, or thwart the
judicial process.” United States v. Warlick, 742 F.2d
113, 115–16 (4th Cir. 1984) (citing Ex parte Hudgings,
249 U.S. 378, 383 (1919)); compare In re Michael, 326
U.S. 224, 228 (1945) (“[P]erjury alone does not
constitute an ‘obstruction’ [of the administration of
justice] . . . [and] there ‘must be added to the essential
elements of perjury under the general law the further
element of obstruction to the Court in the performance of
its duty.’” (quoting Ex parte Hudgings, 249 U.S. at 384)),
with Clark v. United States, 289 U.S. 1, 11 (1933)
(concluding that a prospective juror who committed
perjury had also obstructed the administration of justice
because she had falsely testified to qualify for the jury
even though she was biased and would acquit the
defendant no matter what the evidence showed). And to
transgress the threshold of clear and present danger, the
36
speech must “constitute an imminent, not merely a likely,
threat to the administration of justice. The danger must
not be remote or even probable; it must immediately
imperil.” Craig, 331 U.S. at 376.
The Virgin Islands Supreme Court relied on two
theories in concluding that Kendall’s opinion was a clear
and present danger to the fairness of the Ford case.
Neither passes muster.
According to the Virgin Islands Supreme Court,
Kendall’s opinion was punishable because it “called the
very integrity of [its mandamus] decision into question”
by “blatantly accus[ing], without proof, the Justices . . .
of gross dereliction of their sworn duties and of
committing illegal acts.” Yet Kendall’s criticism of the
decision to issue mandamus—even if it unfairly
impugned the Justices’ motives—is simply not enough.
His after-the-fact critique “could not affect [the Justices’]
ability to [fairly] decide” how to rule on the petition for a
writ of mandamus. Pennekamp, 328 U.S. at 348 (holding
that “criticism of judicial action already taken,” even
though “the cases were still pending on other points or
might be revived by rehearings,” was not enough to
satisfy the clear-and-present-danger standard). And the
Virgin Islands Supreme Court’s interests in “protecting
the reputation of its judges” and “maintaining [its]
institutional integrity” are insufficient “to justify the
subsequent [criminal] punishment of speech.” Landmark
37
Commc’ns, Inc. v. Virginia, 435 U.S. 829, 841–42
(1978).
Nor, as the Virgin Islands Supreme Court
intimated, did Kendall’s opinion delay or otherwise
prejudice the criminal case against Ford and Paris.
According to the Virgin Islands Supreme Court,
Kendall’s opinion delayed the Ford trial by prompting
the defendants to petition this Court for a writ of
certiorari to review the mandamus decision.
The evidence unequivocally contradicts that
account. The defendants’ mere filing of a petition for
certiorari in this Court did not and could not have stayed
their trial. See Brewer v. Quarterman, 474 F.3d 207, 210
(5th Cir. 2006) (en banc) (Dennis, J., dissenting from the
majority’s exercise of jurisdiction) (explaining that while
the granting of a petition for certiorari stays a case in the
lower court, the filing of a petition for certiorari does not
do so). Although the government moved to continue the
Ford trial on November 23, 2009, to await a ruling on the
defendants’ petition, this Court had already denied the
defendants’ petition several days earlier on November
17, 2009. Judge Carroll (who ultimately presided over
the Ford trial) nevertheless continued the trial at the
defendants’ request because some key defense witnesses
either could not be located or were off-island.
Furthermore, even if there were some evidence that the
defendants’ petition delayed the trial, the Virgin Islands
38
Supreme Court did not identify any evidence that
Kendall’s opinion caused the defendants to seek review
of the mandamus decision by petitioning for certiorari.
The record simply contains no support for the conclusion
that Kendall’s opinion delayed the Ford trial. Accord
Scarfo, 263 F.3d at 95 (reversing a gag order on an
attorney’s speech about an ongoing case because there
was no “evidence that [his] statements to the press
jeopardized the fairness of the trial or in any way
materially impaired or prejudiced the judicial power of
the court”).
The People offer an additional argument about
how Kendall’s opinion prejudiced the Ford case.
According to the People, Kendall “deliberately
contaminated the jury pool” by “publicly argu[ing] that
the People lacked sufficient evidence to convict the Ford
defendants,” directly resulting in Paris’s acquittal.
People’s Br. at 19. This is pure conjecture, and as
conjecture it is belied by the fact that Judge Carroll was
ultimately able to select an impartial jury for Ford’s trial.
More importantly, the Virgin Islands Supreme Court did
not rely on this theory in convicting Kendall. Nor can
we. Turner v. Louisiana, 379 U.S. 466, 472–73 (1965)
(holding that the Sixth Amendment’s guarantee of a trial
by jury requires the jury to base its verdict only on the
evidence presented at trial); TXO Prod. Corp. v. Alliance
Res. Corp., 509 U.S. 443, 468 (1993) (Kennedy, J.,
concurring) (“Unlike a legislature, whose judgments may
39
be predicated on educated guesses and need not
necessarily be grounded in facts adduced in a hearing, a
jury is bound to consider only the evidence presented to
it in arriving at a judgment.” (internal citations omitted)).
On the whole, Kendall’s opinion contained “strong
language, intemperate language, and, we assume, an
unfair criticism. But a judge may not hold in contempt
one ‘who ventures to publish anything that tends to make
him unpopular or belittle him.’” Craig, 331 U.S. at 376
(quoting Craig v. Hecht, 263 U.S. 255, 281 (1923)
(Holmes, J., dissenting)); see also In re Little, 404 U.S.
553, 556 (1972) (overturning lawyers’ contempt
convictions where “[t]heir convictions rest[ed] on
nothing whatever except allegations [they] made in
motions for change of venue and disqualification of [the
judge] because of [his] alleged bias,” and noting that the
lawyers had not “disobeyed any valid court order, talked
loudly, acted boisterously, or attempted to prevent the
judge or any other officer of the court from carrying on
his court duties” (internal quotation marks and citations
omitted)). Consequently, Kendall’s controversial
remarks in the Ford opinion were protected by the First
Amendment and cannot sustain his conviction on Count
1.
40
III.
On Count 2, Kendall was charged and convicted of
indirect criminal contempt for failing to comply with the
writ of mandamus. This conviction fails, however,
because it is not supported by sufficient evidence.
Like any crime, a conviction for criminal contempt
requires proof beyond a reasonable doubt. Young v.
United States, 481 U.S. 787, 798 (1987). And like any
criminal prosecution, we review the sufficiency of the
evidence de novo. United States v. Flores, 454 F.3d 149,
154 (3d Cir. 2006) (citing United States v. Brodie, 403
F.3d 123, 133 (3d Cir. 2005)). In doing so, we
“‘examine the totality of the evidence, both direct and
circumstantial,’ and ‘interpret the evidence in the light
most favorable to the government as the verdict winner.’”
United States v. Starnes, 583 F.3d 196, 206 (3d Cir.
2009) (quoting United States v. Miller, 527 F.3d 54, 60,
62 (3d Cir. 2008)). If “all the pieces of evidence, taken
together, make a strong enough case to let a jury find [the
defendant] guilty beyond a reasonable doubt,” then we
must uphold the jury’s verdict. Brodie, 403 F.2d at 134
(quoting United States v. Coleman, 811 F.2d 804, 807
(3d Cir. 1987)).
Criminal contempt generally requires the existence
of a valid court order that the defendant knew of and
willfully disobeyed. Doral Produce Corp. v. Paul
41
Steinberg Assoc., Inc., 347 F.3d 36, 38 (2d Cir. 2003);
see also FTC v. Lane Labs-USA, Inc., 624 F.3d 575, 582
(3d Cir. 2010) (discussing civil contempt). This
willfulness requirement distinguishes civil contempt from
criminal contempt and requires “a specific intent to
consciously disregard an order of the court or where the
defendant knows or should reasonably be aware” that he
is disregarding the order. Doral Produce Corp., 347 F.3d
at 38 (citations and internal quotation marks omitted);
Waste Conversion, 893 F.2d at 610. Because of this
willfulness requirement, good-faith compliance is a
defense to criminal contempt but not civil contempt: “if
the defendant’s alleged disobedience is consistent with a
reasonable interpretation of the court’s order . . . and
there is no other evidence of willfulness, we would be
unable to affirm the conviction.” Doral Produce Corp.,
347 F.3d at 38–39.
The Virgin Islands Supreme Court charged
Kendall with disobeying the writ of mandamus in two
ways: (1) by refusing to consider a change of venue or a
continuance to minimize pretrial publicity; (2) by
refusing to schedule the Ford case for trial and recusing
himself instead of proceeding to trial (in the absence of a
valid plea agreement). These two grounds, however,
suffer from a similar defect: the writ of mandamus did
not require Kendall to take any action with respect to
these issues. Consequently, there is insufficient evidence
42
that Kendall disobeyed any unambiguous term of the writ
of mandamus.
A. Refusal to Consider Alternatives to Minimize
Pretrial Publicity
As the Virgin Islands Supreme Court
acknowledged, the writ of mandamus “did not itself
direct Kendall to consider a postponement or change of
venue.” The Virgin Islands Supreme Court nonetheless
determined that the writ “precluded Kendall from
concluding” that the Ford defendants could not obtain a
fair trial “without first considering a change of venue or a
postponement.” Id.
Kendall did not, however, ignore the writ’s
requirement that he consider ways to minimize pretrial
publicity as part of any ruling on pretrial publicity
because he never ruled on this issue. Rather, Kendall left
this question open for his successor to decide. To be
sure, his opinion describes his continued belief that
“widespread publicity” disclosing the defendants’ earlier
willingness to plead guilty “virtually foreclosed the
selection of [a fair and impartial] jury in [the territory’s]
very small population.” But his opinion does so only to
explain some of the concerns motivating his recusal—not
as part of any ruling on whether the pretrial publicity had
violated the defendants’ right to a fair trial.
43
Consequently, Kendall’s discussion of pretrial publicity
did not violate the writ.
B. Recusal Instead of Proceeding to Trial
Likewise, the Virgin Islands Supreme Court
conceded that the writ of mandamus did not “state that
Kendall was forbidden from recusing himself and was
required to immediately proceed to trial.” Kendall
therefore cannot be held in contempt for recusing himself
rather than proceeding to trial.
The Virgin Islands Supreme Court convicted him
on Count 2 anyway. It concluded that Kendall was guilty
because his recusal was a pretext to avoid complying
with the writ, even though pretextual recusal would not
violate the writ. 11 The Special Master concluded that the
11
Count 2 charged Kendall with violating the writ of
mandamus by recusing himself, but the Virgin Islands
Supreme Court ultimately convicted him of pretextually
recusing himself even though his recusal did not violate
the writ. This shift in theories raises a serious question as
to whether Kendall was unconstitutionally convicted of a
crime with which he was not charged. See United States
v. Vosburgh, 602 F.3d 512, 532 (3d Cir. 2010) (“Because
of [the Fifth Amendment], ‘a court cannot permit a
defendant to be tried on charges that are not made in the
indictment against him.’” (quoting Stirone v. United
States, 361 U.S. 212, 216 (1960))); United States v.
44
evidence was at least “equally consistent with the
premise that Kendall recused himself because he believed
Bethel had engaged in prosecutorial misconduct and [that
he] ‘could not, and ethically should not, render decisions
in the case.’” V.I. S. Ct. Op. at 24. The Virgin Islands
Supreme Court rejected the Special Master’s assessment
for one reason: the timing of Kendall’s recusal.
According to the Virgin Islands Supreme Court, all of
Kendall’s reasons for recusal arose by March 9, 2009, yet
Kendall “continued to issue rulings” in People v. Ford
after that date, and waited until after the writ issued
months later to recuse himself. Id. at 26. So the Virgin
Islands Supreme Court concluded that the timing of
Kendall’s decision revealed the real reason for his
recusal: his disagreement with the writ of mandamus. Id.
That theory fails on its own terms. Its premise—
that all of Kendall’s reasons for recusal arose before the
writ was issued—is contradicted by the evidence. While
Bethel made several misrepresentations to Kendall before
the writ of mandamus was issued, the last straw came
after the writ issued: Bethel proffered evidence in support
Daraio, 445 F.3d 253, 260 (3d Cir. 2006) (“‘The key
inquiry is whether the defendant was convicted of the
same conduct for which he was indicted.’” (quoting
United States v. Robles-Vertiz, 155 F.3d 725, 729 (5th
Cir. 1998))). Nevertheless, we do not consider this issue
because Kendall has not raised it.
45
of the plea agreement for voluntary manslaughter that
tended to exculpate the defendants and confirm their self-
defense theory. Even though Bethel’s factual basis was
insufficient to support the plea agreement for voluntary
manslaughter, Bethel forged ahead toward trial on more
serious charges requiring proof of intent—an element
contradicted by Bethel’s own previous account of the
evidence. And he pressed forward despite his “serious
doubt” about the evidentiary support for those more
serious charges. This post-writ conduct led Kendall to
conclude that Bethel was unethically trying to “win a
conviction rather than seeing that justice is done” and
that he was no longer able “to accord much credence to
[Bethel’s] further representations” in the Ford case. As a
result, there is not “substantial evidence that, when
viewed in the light most favorable to the [People], would
allow a rational trier of fact” to conclude that Kendall’s
recusal was pretextual. 12 United States v. Wright, 665
12
Kendall also argues that the Virgin Islands Supreme
Court lacked authority to hold him in criminal contempt
for pretextual recusal where his recusal did not violate
any court order. Because we conclude that Kendall’s
conviction on Count 2 was not supported by sufficient
evidence, we need not consider whether the Virgin
Islands Supreme Court was “inescapably wrong” about
the scope of its contempt power. Defoe v. Phillip, 702
F.3d 735, 744 (3d Cir. 2012) (explaining that our limited
oversight over the Virgin Islands Supreme Court
46
F.3d 560, 567 (3d Cir. 2012) (internal quotation marks
and citations omitted).
Because none of the Virgin Islands Supreme
Court’s grounds are sufficient to demonstrate Kendall’s
willful non-compliance with the writ of mandamus, we
must vacate his conviction on Count 2.
IV.
On Count 3, the Virgin Islands Supreme Court
convicted Kendall of indirect criminal contempt for
misbehaving in his official transactions based on the
conduct underlying Counts 1 and 2. As the Virgin
Islands Supreme Court explained, “the disposition of the
obstruction of administration of justice and failure to
comply charges also dictates the disposition of
misbehaving in official transactions charge.” V.I. S. Ct.
Op. at 28. Consequently, our reversal of Kendall’s
convictions on Counts 1 and 2 requires us to reverse his
conviction on Count 3.
“requires us to affirm [its] decisions . . . that are based on
territorial law unless those decisions are inescapably
wrong”). Nevertheless, we note that, so far as we can
find, no court has ever used its limited contempt
authority to punish a judge’s pretextual recusal absent the
violation of a court order.
47
V.
Lastly, Kendall argues that the Justices violated his
right to due process in two ways: First, the Justices did
not recuse themselves from presiding over his contempt
charges. Second, the Justices, acting as the ultimate fact-
finders in his case, convicted him without personally
attending his trial and observing the witnesses while they
testified. Because Kendall’s convictions were
unconstitutional and based on insufficient evidence, we
need not reach his due-process arguments.
* * * * *
We take no issue with the Virgin Islands Supreme
Court’s well-intentioned desire to promote respect for the
judiciary. Nowhere is such respect more important than
among judges, who “have a common interest, as
members of the judiciary, in getting the law right,” and
who, “as a result, . . . are willing to listen, persuade, and
be persuaded, all in an atmosphere of civility and
respect.” Harry T. Edwards, The Effects of Collegiality
on Judicial Decision Making, 151 U. Pa. L. Rev. 1639,
1645 (2003). Whatever its substantive merit, Kendall’s
Ford opinion gratuitously undermined the collegial
judicial atmosphere “that helps to create the conditions
for principled agreement, by allowing all points of view
to be aired and considered.” Id. But as Justice Black
explained:
48
The assumption that respect for the judiciary
can be won by shielding judges from
published criticism wrongly appraises the
character of American public opinion. For it
is a prized American privilege to speak
one’s mind, although not always with
perfect good taste, on all public institutions.
And an enforced silence, however limited,
solely in the name of preserving the dignity
of the bench, would probably engender
resentment, suspicion, and contempt much
more than it would enhance respect.
Bridges, 314 U.S. at 270–71; see also Landmark
Commc’ns, Inc., 435 U.S. at 839 (“[T]he law gives
‘[j]udges as persons, or courts as institutions . . . no
greater immunity from criticism than other persons or
institutions.’” (quoting Bridges, 314 U.S. at 289
(Frankfurter, J., dissenting))). We will reverse the
judgment of the Virgin Islands Supreme Court and vacate
all of Kendall’s convictions.
49
In re: KENDALL
No. 11-4471
ROTH, Circuit Judge, concurring:
I join this Court’s judgment reversing the criminal
contempt conviction against Judge Kendall. I write
separately, however, to express my view that the contempt
conviction should be reversed on the grounds of absolute
judicial immunity. 1 It is well-established that absolute
judicial immunity protects judges from civil suit for judicial
actions within their jurisdiction. See, e.g., Mireles v. Waco,
502 U.S. 9, 9 (1991); Stump v. Sparkman, 435 U.S. 349, 357-
62 (1978). I believe that, absent corruption or bribery, such
protection should also reach criminal liability for judicial
actions within the judge’s jurisdiction. 2
1
Because I believe that the issue of judicial immunity falls
within the scope of the second issue on which we granted
certiorari—whether the Virgin Islands Supreme Court erred
in imposing criminal contempt on the charges of failure to
comply with its mandamus order—and because it is an issue
of great importance, I address the issue in this concurrence.
2
To be sure, to the extent that offenses like corruption and
bribery are not judicial acts within a judge’s jurisdiction, they
do not fall within this proposed extension of the doctrine of
judicial immunity. See Braatelien v. United States, 147 F.2d
888, 895 (8th Cir. 1945) (noting that a judge “may be held
criminally responsible when he acts fraudulently or
“As early as 1872, the [Supreme] Court recognized
that it was ‘a general principle of the highest importance to
the proper administration of justice that a judicial officer, in
exercising the authority vested in him, [should] be free to act
upon his own convictions, without apprehensions of personal
consequences to himself.’” Stump, 435 U.S. at 355 (quoting
Bradley v. Fisher, 80 U.S. 335, 347 (1871)). Rooted in
English common law, the doctrine of judicial immunity is
aimed primarily at preserving judicial independence. See
Forrester v. White, 484 U.S. 219, 225 (1988) (citing Bradley,
80 U.S. at 348) (noting that judicial immunity historically was
also a device for discouraging collateral attacks and
protecting the finality of judgments); Pierson v. Ray, 386 U.S.
547, 554 (1967) (“This immunity . . . ‘is not for the protection
or benefit of a malicious or corrupt judge, but for the benefit
of the public, whose interest it is that judges should be at
liberty to exercise their functions with independence and
without fear of consequences.’”) (quoting Scott v. Stansfield,
L.R. 3, Ex. 220, 223 (1868), quoted in Bradley, 80 U.S. at
349); United States v. Chaplin, 54 F. Supp. 926, 933 (S.D.
Cal. 1944) (“The immunity which has clothed judges for a
century and a half in our country found its genesis in the
English common law simultaneously with the independence
of the judiciary.”).
corruptly”); McFarland v. Nebraska, 109 N.W.2d 397, 403
(Neb. 1961) (“[A]ny judicial officer who acts fraudulently or
corruptly is responsible criminally, whether he acts under the
law or without the law.”) (internal quotation marks and
citation omitted). I include the qualifier of “absent corruption
or bribery,” however, to ensure that such criminal acts by
judges will not be covered by judicial immunity.
2
In the civil context, “[a] long line of th[e] Court’s
precedents acknowledge that, generally, a judge is immune
from a suit for money damages.” Mireles, 502 U.S. at 9.
There are only two circumstances in which the doctrine of
judicial immunity does not apply to civil suits for money
damages: (1) “a judge is not immune from liability for
nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity” and (2) “a judge is not immune for action,
though judicial in nature, taken in the complete absence of all
jurisdiction.” Id. at 11.
While the application of absolute judicial immunity in
civil proceedings is well-established, the Supreme Court has
noted in dicta that it has not recognized absolute judicial
immunity from criminal liability. See Mireles, 502 U.S. at 9
n.1 (“The Court, however, has recognized that a judge is not
absolutely immune from criminal liability . . . .”); O’Shea v.
Littleton, 414 U.S. 488, 503 (1974) (“[W]e have never held
that the performance of the duties of judicial, legislative, or
executive officers, requires or contemplates the immunization
of otherwise criminal deprivation of constitutional rights. . . .
On the contrary, the judicially fashioned doctrine of official
immunity does not reach so far as to immunize criminal
conduct proscribed by an Act of Congress. . . .”) (internal
quotation marks and citations omitted). 3, 4
3
To the extent that I propose that judges not be exempt from
prosecution for the offenses of bribery or corruption, my
position is consistent with that of the Supreme Court.
4
In Ex Parte Virginia, 100 U.S. 339 (1878), the Supreme
Court did deny judicial immunity to a judge indicted for
excluding black citizens from jury lists in violation of the
3
Still, some federal district courts and state courts have
found judges to be judicially immune from criminal charges
relating to the performance of judicial duties. See Chaplin,
54 F. Supp. at 934-35 (sustaining a judge’s plea at bar that he
should be immune from indictment and prosecution for
depriving a citizen of civil rights “under the color of any law”
in judicial proceedings in his court); In re Petition of Dwyer,
406 A.2d 1355, 1360 (Pa. 1979) (finding “that the petitioners
are quasi-judicial and/or quasi-prosecutorial officers . . . [and]
in the absence of allegations of bad faith or corruption, the
petitioners, in granting the extensions and variance, are
insulated from criminal prosecution for the consequences of
their actions”); Commonwealth v. Tartar, 239 S.W.2d 265,
266-67 (Ky. App. 1951) (holding that the circuit court
properly sustained a demurrer to the indictment of a judge for
misfeasance in office because “judges acting in their official
capacities should be protected from harassment by either civil
suits or criminal prosecutions”); In re McNair, 187 A. 498,
502 (Pa. 1936) (finding that magistrate judges “cannot be
subjected to liability, civil or criminal, for any of their judicial
acts, no matter how erroneous, so long as they act in good
faith”).
I believe that, absent bribery or corruption, the
importance of judicial independence warrants application of
the doctrine of absolute judicial immunity to criminal liability
for judicial acts performed within a judge’s jurisdiction.
Exposing judges to criminal liability for judicial acts
performed within their jurisdiction poses the same type of
Civil Rights Act of 1875. However, the Court did so on the
grounds that the act in question was ministerial, not judicial.
Id. at 348.
4
threat to judicial independence as does exposing them to civil
suit for money damages. As the courts that have found
judges immune from criminal prosecution have noted, fear of
criminal prosecution for judicial acts, like fear of civil suits
by disgruntled litigants, could affect the ability of judges to
act on their own convictions in fulfilling their judicial duties.
See, e.g., Chaplin, 54 F. Supp. at 934 (“If judges are protected
against civil actions for judicial acts, the reasons are more
weighty that they should be protected against criminal
actions.”); Dwyer, 406 A.2d at 1361 (“Judges made timid
because of fear of criminal prosecutions for errors in their
decisions make poor public servants.”); Tartar, 239 S.W.2d at
266 (“[O]therwise judges might be unduly burdened
defending charges instigated by other governmental officers
or aggrieved members of the public.”).
Moreover, as courts have noted with respect to judicial
immunity from civil suits, there are other means of
disciplining judges that do not pose such a threat to the
independence of the judiciary. Judges are subject to removal.
See U.S. Const. art. II, § 4; V.I.S.CT.R. 209.6; Bradley, 80
U.S. at 354 (“But for malice or corruption in their action
whilst exercising their judicial functions within the general
scope of their jurisdiction, judges of these courts can only be
reached by public prosecution in the form of impeachment, or
in such other form as may be specially prescribed.”). Judges
also are subject to disciplinary controls: all states now have
judicial commissions to review complaints of judicial
misconduct, and there are procedures within the federal courts
for such review as well. 5 See John O. Haley, The Civil,
5
The majority notes that “superior courts routinely used their
contempt power to hold inferior judges accountable for
5
Criminal and Disciplinary Liability of Judges, 54 AM. J.
COMP. L. 281, 288-89 (2006). The Virgin Islands also has a
judicial commission, the Commission on Judicial Conduct.
V.I.S.CT.R. 209. 6
The majority asserts, however, that there is “no
support in history, law, or logic” for extending judicial
immunity to criminal contempt. Ante at 24 n.4. The majority
cites to Pulliam v. Allen, 466 U.S. 522 (1984) for support.
Ante at 23 n.4. However, in Pulliam, the Supreme Court held
violating their writs and orders . . . .” Ante at 22 n.4.
However, the majority cites only to cases from the late
nineteenth and early twentieth centuries and recognizes that
this practice was common only until the mid-twentieth
century when codes of judicial conduct and judicial
disciplinary commissions were created. Ante at 22-23 n.4.
6
Complaints arising out of other cases had been filed against
Judge Kendall with the Commission on Judicial Conduct’s
predecessor, the Commission on Judicial Disabilities. The
Commission on Judicial Disabilities was nullified by this
Court’s decision in Kendall v. Russell, 572 F.3d 126 (3d Cir.
2009), in which we found that the provisions of the
legislature’s act allowing the Commission to remove judges
violated the separation of powers principle in the Revised
Organic Act that served as the Constitution of the Virgin
Islands. This decision was published on July 13, 2009. On
December 10, 2009, the Supreme Court of the Virgin Islands
adopted Supreme Court Rule 209, which created the new
judicial disciplinary body, the Commission of Judicial
Conduct. V.I.S.CT.R. 209; V.I.S.CT., Promulgation No.
2009-01 (Dec. 10, 2009).
6
only that judicial immunity “is not a bar to prospective
injunctive relief against a judicial officer acting in her judicial
capacity” or to an award of attorney’s fees under 42 U.S.C. §
1988. 7 466 U.S. at 541-42. The Court did not directly
address whether judicial immunity should bar criminal
contempt proceedings against a judge. Nevertheless, Justice
Powell, in dissent, voiced concern that “[t]he specter of
contempt proceedings for alleged violations of injunctive
orders is likely to inhibit unbiased judicial decisionmaking as
much as the threat of liability for damages.” 8 Id. at 555
7
It is noteworthy that after the Supreme Court’s decision in
Pulliam, Congress passed the Federal Courts Improvement
Act of 1996, which amended 42 U.S.C. § 1983 to bar
injunctive relief against a judicial officer “unless a
declaratory decree was violated or declaratory relief was
unavailable” and 42 U.S.C. § 1988 to bar an award of costs,
including attorney’s fees, against a judicial officer in any
action “for an act or omission taken in such officer’s judicial
capacity . . . , unless such action was clearly in excess of such
officer’s jurisdiction.” Pub. L. No. 104-317, 110 Stat. 3847
(codified at 42 U.S.C. §§ 1983, 1988).
8
The majority asserts that the Pulliam Court rejected Justice
Powell’s dissenting argument about the danger that the threat
of contempt proceedings poses to judicial independence.
Ante at 23 n.4. I believe that this is an overstatement of the
Court’s position: the Court noted that a judge “risks
contempt for violating the writ [of mandamus]” but did not
directly respond to Justice Powell’s argument about the effect
that the threat of contempt proceedings could have on judicial
independence. Pulliam, 466 U.S. at 538 n.19.
7
(Powell, J., dissenting). I echo Justice Powell’s concern and
believe that there is a strong basis in common law and logic
for extending judicial immunity to criminal contempt. 9
Here, Judge Kendall should be judicially immune from
the criminal contempt charges. In writing the July 7, 2009,
Opinion recusing himself from the Ford matter, Judge
Kendall was exercising his judgment as to whether he could
preside over this case in an impartial and fair manner and
performing a quintessential judicial function by explaining his
reasoning in a judicial opinion. Because this was a judicial
act within his jurisdiction, he would be immune from civil
suit arising from the same action. Just as exposing Judge
Kendall to civil liability for such an action would threaten his
ability to act upon his own convictions in performing his
judicial duties, charging him with criminal contempt for this
action would also undermine his judicial independence. 10
9
The majority also cites to United States v. Claiborne, 727
F.2d 842 (9th Cir. 1984), United States v. Hastings, 681 F.2d
706 (11th Cir. 1982), and United States v. Isaacs, 493 F.2d
1124 (7th Cir. 1974). Ante at 23-24 n.4. These cases all
involve the prosecution of judges for corruption or bribery,
which are precisely the types of criminal acts that I believe
should not be covered by judicial immunity. In Hastings, the
Eleventh Circuit noted “this is not a case in which a judge is
prosecuted for acts in his official capacity undertaken in good
faith. In such a case, there may exist a common law
immunity from criminal prosecution.” 681 F.2d at 711 n.12.
10
Arguably, if Judge Kendall had recused himself from the
Ford trial without writing an opinion, he might have been
held in criminal contempt without a First Amendment
8
For the foregoing reasons, I believe that the criminal
contempt conviction here should be reversed on grounds of
absolute judicial immunity.
defense, in which case the issue of judicial immunity could be
dispositive.
9