Kendall v. Daily News Publ'g Co.

• Decision Date: 08 March 2013
• Docket Number: No. 11–4162.,11–4162.
• Citation: 716 F.3d 82
• Parties: The Honorable Leon A. KENDALL, Petitioner v. The DAILY NEWS PUBLISHING CO. d/b/a The Virgin Islands Daily News; Joy Blackburn; and Joseph Tsidulko.
• Court: U.S. Court of Appeals — Third Circuit

716 F.3d 82

The Honorable Leon A. KENDALL, Petitioner

v.The DAILY NEWS PUBLISHING CO. d/b/a The Virgin Islands Daily News; Joy Blackburn; and Joseph Tsidulko.

No. 11–4162.

United States Court of Appeals, Third Circuit.

Argued Dec. 6, 2012.

Filed March 8, 2013.

Howard M. Cooper, Suzanne M. Elovecky, Julie E. Green [Argued], Todd & Weld, Boston, MA, for Plaintiff–Petitioner.

Michael L. Berry, Michael D. Sullivan [Argued], Levine, Sullivan, Koch & Schulz, Philadelphia, PA, Kevin A. Rames, Christiansted, St. Croix, VI, for Defendants–Respondents.

Before SMITH, HARDIMAN, and ROTH, Circuit Judges.

OPINION

SMITH, Circuit Judge.

We granted certiorari in this case to decide three questions: (1) whether the Virgin Islands Supreme Court correctly applied independent appellate review for actual-malice determinations in public-figure libel suits, (2) what the appropriate actual-malice standard is in defamation-by-implication cases, and (3) whether the justices should have recused themselves. We conclude that although the Supreme Court misapplied independent appellate review, it correctly held that Leon Kendall—a judge formerly on the Virgin Islands Superior Court—cannot establish actual malice for his libel claim. This conclusion means that we need not decide the recusal question because our plenary review makes any potential error from the alleged bias harmless. Accordingly, we will affirm the Court's judgment.

I

A. Factual History

Judge Kendall contends that the Daily News and Joy Blackburn (“the defendants” or “Daily News”) defamed him while reporting on three events in his judicial career: his decision to grant bail to Daniel Castillo, his decision to place Ashley Williams under house arrest, and his decision to retire. Most of the Daily News's articles admitted into evidence discussed the bail decision. Castillo appeared before Judge Kendall in March of 2007 for a preliminary hearing for a charge of aggravated assault. The Government requested that bail be set at $500 because he had previous encounters with the criminal justice system: a 2003 felony conviction for possession of stolen property and a 2004 rape charge that (according to the Government) had been dismissed. Castillo's criminal record contained the 2003 conviction but stated that the rape charge had “no known disp[osition].” In actuality, the rape charge had been one of nine charges which were dismissed when Castillo entered a plea agreement for assault with a deadly weapon. These charges and the assault conviction were absent from the criminal record presented to Judge Kendall. Thus, nothing presented at the hearing indicated that Castillo had a history of violence.

Judge Kendall released Castillo on his own recognizance. On April 6, 2007, Castillo murdered a twelve-year-old girl. Coverage of the murder in the April 14, 2007 edition of the Daily News explained that Castillo was free on his own recognizance on the aggravated assault charges when he committed the murder. After recounting the alleged facts of the assault, the Daily News described the preliminary hearing: “Kendall found probable cause to charge Castillo [with assault] but released him pending trial—despite Castillo's history of violence including charges of rape, assault and weapons violations.” Judge Kendall contends this statement and similar statements in subsequent articles were defamatory because they implied that he was aware of Castillo's violent history when, in fact, he was not.

The second set of articles at issue covers Judge Kendall's decision to place Ashley Williams under house arrest. On November 17, 2006, a jury convicted Williams of first-degree rape, first-degree assault, and first-degree unlawful sexual contact. Afterreceiving the verdict, the Government sought to have Williams remanded into custody. Williams, however, requested that he be free over the weekend to get his affairs in order before reporting to prison. Judge Kendall granted Williams's request but placed him under house arrest.

Williams failed to report to jail the following Monday as required by Judge Kendall's order. Instead, Williams refused to leave his home and threatened to blow himself up during a five-hour standoff with police. In a November 21, 2006 article, the Daily News reported on the standoff and explained that Williams was at his home because after he was “convicted of rape and assault,” he was “allowed by a judge to spend the weekend in the community unsupervised before he was supposed to report to jail Monday.” The article further explained that Judge Kendall had released Williams and that “[t]ypically, people convicted of violent crimes ... are remanded into custody to await sentencing once they are found guilty.” Judge Kendall contends that the Daily News defamed him by stating that Williams was “unsupervised” in the community when, in fact, Williams was under house arrest at the time of the standoff with police.

The final event at issue was Judge Kendall's decision to retire. In a February 19, 2009 article, the Daily News reported on that decision in an article subtitled “[t]hree judicial complaints against him still pending.” This subtitle referred to three complaints filed against Judge Kendall with the Virgin Islands Commission on Judicial Disabilities for allegedly misapplying the law in his bail decisions. At the time the article was published, Judge Kendall had successfully challenged the authority of the Commission to hold hearings regarding the complaints in the District Court of the Virgin Islands. This ruling, however, was still on appeal to this Court. Judge Kendall argues that the Daily News defamed him by stating that the complaints were “still pending,” even though they had been dismissed by the District Court.

B. Procedural History

On October 5, 2007, Judge Kendall filed this libel action against the Daily News and two of its reporters, Joy Blackburn and Joseph Tsidulko, in the Virgin Islands Superior Court. After Judge Kendall amended his original complaint to include the retirement article and the parties completed discovery, the case proceeded to a jury trial. The jury returned a verdict in favor of Judge Kendall for $240,000, and against the Daily News and Blackburn. The jury determined that Tsidulko was not liable. The Daily News and Blackburn subsequently moved for a judgment notwithstanding the verdict. The Superior Court granted this motion and entered a directed verdict in their favor.

Judge Kendall appealed the Superior Court's judgment to the Virgin Islands Supreme Court. Judge Kendall requested that the justices recuse themselves because they had initiated a criminal contempt charge pending against him. ¹ The Supreme Court denied his request and affirmed the Superior Court's judgment on the narrow ground that Judge Kendall could not prove actual malice for any of the statements. We subsequently granted certiorari to answer three questions:

(1) whether the ‘actual malice’ standard articulated in New York Times v. Sullivan, 376 U.S. 254, 279–80 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964), can be satisfied by a defendant's mere awareness of a defamatory implication (as opposed to an actual intent to convey that implication) and, if so, whether the standard was satisfied in this case;

(2) whether the Virgin Islands Supreme Court's review exceeded the scope of the “independent examination” required by Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 [104 S.Ct. 1949, 80 L.Ed.2d 502] (1984); and

(3) whether the Virgin Islands Supreme Court Justices erred in not recusing themselves from this matter.

We exercise plenary review over decisions of the Virgin Islands Supreme Court that relate to questions of federal constitutional law. See People of the V.I. v. John, 654 F.3d 412, 415, 417–22 (3d Cir.2011); Pichardo v. V.I. Comm'r of Labor, 613 F.3d 87, 98 (3d Cir.2010).

II

Before turning to the merits, we must first examine whether Congress has removed our jurisdiction over this case with recent legislation that changes how decisions of the Virgin Islands Supreme Court are reviewed by federal courts. See In re Flat Glass Antitrust Litig., 288 F.3d 83, 88 n. 5 (3d Cir.2002) (noting that “we have an ‘independent responsibility to examine our own jurisdiction sua sponte’ ” (quoting In re Ford Motor Co., 110 F.3d 954, 958–59 (3d Cir.1997))).

In the Revised Organic Act of 1954, as amended in 1984, Congress authorized the Virgin Islands legislature to establish its own local appellate court and provided that when it did so, we would exercise certiorari jurisdiction over that court's final decisions for a limited period of institutional development. See Defoe v. Phillip, 702 F.3d 735, 738–40 (3d Cir.2012) (laying out the history of our relationship with the courts of the Virgin Islands). Our certiorari jurisdiction was to last up to fifteen years from the creation of the Virgin Islands Supreme Court—enough time for the Virgin Islands Supreme Court to develop “sufficient institutional traditions [of its own] to justify direct review by the Supreme Court of the United States.” 48 U.S.C. § 1613. Recognizing that the Virgin Islands Supreme Court might develop sufficient institutional traditions before the fifteen-year mark, however, Congress required this Court to regularly evaluate and report on its progress. Id.; see also Defoe, 702 F.3d at 739–40. The Virgin Islands Supreme Court passed that test with flying colors last year when a committee of this Court recommended to the Third Circuit Judicial Council that Congress eliminate our certiorari jurisdiction over Virgin Islands Supreme Court decisions in favor of direct review by the United States Supreme Court. See Judicial Council of the U.S. Court of Appeals for the Third Circuit, Report on the Virgin Islands Supreme Court 1 (2012), available at http:// www. visupremecourt. org/ wf Data/ files/ Booklet Reportof Virgin Islands Supreme Court. pdf.

Congress agreed and quickly acted on the Third Circuit's...