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IN THE SUPREME COURT OF THE VIRGIN ISLANDS RODNEY E MILLER SR ) S Ct Crim No 2020 0010 Appellant/Defendant ) Re Super Ct Crim No 425 2008 (STT) ) V ) ) PEOPLE OF THE VIRGIN ISLANDS ) Appellee/Plaintiff ) ) On Appeal from the Superior Court of the Virgin Islands Division of St Thomas St John Superior Court Judge Hon Michael C Dunston Considered and Filed October 6, 2021 Cite as 2021 VI [8 BEFORE RHYS S HODGE ChiefJustice MARIA M CABRET Associate Justice and CURTIS V GOMEZ Designated Justice ' APPEARANCES Kele C Onyejekwe, Esq Appellate Public Defender St Thomas U S VI Attorneyfor Appellant [an S A Clement, Esq Assistant Attorney General St Thomas U S V I Attorneyfor Appellee OPINION OF THE COURT PER CURIAM ‘. 1 This matter comes before the Court pursuant to a document filed by Appellant Rodney E ' The Honorable Ive Arlington Swan is recused from this matter The Honorable Curtis V Gomez, a formerjudge ofthe United States District Court ofthe Virgin Islands, sits by designation pursuant Miller, Sr, on September 30 2021, captioned “Motion for Designated Justice to Withdraw Consent for Appointment or to Recuse ” Although the motion requests that Designated Justice Curtis V Gomez recuse himself from this appeal for various reasons, 3 Miller also asserts that the panel assigned to this appeal is illegally constituted since Justice Gomez purportedly lacks the statutory qualifications to serve as a Designated Justice 1] 2 As a threshold matter, it is a well established practice in appellate courts that the decision of a Justice to recuse or not recuse himself or herself from a case is a personal decision that is not reviewable by his or her colleagues See e g Hanrahan v Hampton, 446 U S 1301, 1301 (I980) (Rehnquist, J ) (“[G]enerally the Court as an institution leaves such [recusal] motions, even though they be addressed to it, to the decision of the individual Justices to whom they refer ); Jewell Ridge Coal ( orp v Mme Workers, 325 U S 897 897 98 (Jackson, J , concurring) ( There is no authority known to me under which a majority of this Court has power under any circumstances to exclude one of its duly commissioned Justices from sitting or voting in any case ’); State v Henley 802 N W 2d 175 184 (Wis 2011) ( [The movant s] assumption that a majority of this 2 Although Miller filed the motion on September 30, 2021 approximately one week before the scheduled oral argument in this appeal the order appointing Justice Gomez as a Designated Justice in this case had been entered on April 26, 2021, with the Virgin Islands Judiciary Electronic Case Management System updated to reflect his appointment to the panel The appointment of Designated Justice Gomez had also been reflected on the oral argument calendar that had been served on Miller s counsel on September 10, 2021 Rule 19 of the Virgin Islands Rules of Appellate Procedure requires that a party notify this Court promptly in writing” after discovering grounds for potential judicial disqualification Because the basis for seeking to disqualify Justice Gomez should have been known to Miller well before he filed his September 30 2021 motion he has failed to “promptly” notify this Court as required by Rule 19 Nevertheless, we exercise our discretion to consider the motion, given that Miller has called into question the legality ofJustice Gomez 5 designation without any legal basis Benjamin v AIG Ins Co ofPR 56 V1558 568 n6(VI 2012) 3 Designated Justice Gomez, in an order entered on October 6, 202l, declined to recuse himself court has the power to disqualify a judicial peer who has denied a motion to withdraw from a pending matter is without legal foundation ), Tighe v Crosthwazt, 665 802d 1341, 1348 49 (Miss 1995) (holding that a state supreme court, sitting en banc, lacks the authority to force a co equal [J]ustice to recuse himselfor herselffrom a case), State ex rel Cohen v Manchm, 336 S E 2d 171, 175 (W Va 1984)( [W]here a motion is made to disqualify or recuse an individual [J]ustice of this Court, that question is to be decided by the challenged [J]ustice and not by the other members of this Court ) In re Estate of Carlton 378 So 2d 1212 1216 (Fla 1979) ( [E]ach [J]ustice must determine for himself [or herself] both the legal sufficiency of a request seeking his disqualification and the propriety of withdrawing in any particular circumstances ”) This same principle, however, does not extend to claims that the panel has been illegally constituted because one or more Justices fails to satisfy the constitutional or statutory requirements to serve See Henmnglon v State 144 S W 3d 42 43 (Tex App 2004) accord Nguyen v United States 539 U S 69 (2003) Therefore, while the decision to recuse or not recuse from this appeal is vested exclusively in the discretion of Designated Justice Gomez and is not subject to review by this Court, we will address the question of whether the designation of Justice Gomez to serve as a Designated Justice of this Court for purposes of this appeal is authorized by law Title 4, section 24 of the Virgin Islands Code provides, in pertinent part, that In addition to the [J]ustices appointed under subsection 22(a), the ChiefJustice may appoint any judge of a court of record in the Virgin Islands or any senior or retired [J]ustice to sit as a [D]esignated [J]ustice of the Supreme Court of the Virgin Islands A retired judge may also be appointed as a [D]esignated [J]ustice of the Supreme Court, but only with the judge's consent An appointment as a [D]esignated [J]ustice shall be for any specific cases that a regular [J]ustice of the Court is unable to hear for any reason including illness, absence, or a conflict of interest The [D]esignated [J]ustice shall sit as assigned by the Chief Justice, and while sitting shall have all the powers of an [A]ssociate [J]ustice served as a Judge of the United States District Court of the Virgin Islands from 2005 to 2020 to sit on the panel assigned to hear this case after the recusal of Associate Justice Ive Arlington Swan 1| 3 Miller argues that section 24 does not permit a retired Judge of the District Court to serve as a Designated Justice of this Court While the second sentence ofsection 24 expressly authorizes appointment of a retired judge” to serve as a Designated Justice, Miller contends that Designated Justice Gomez is not a ‘retired judge ” According to Miller, because the first sentence permits the appointment of “any judge of a court of record in the Virgin Islands as a Designated Justice, a “retired judge” must also have served on “a court of record in the Virgin Islands Miller asserts that the Superior Court of the Virgin Islands and the Supreme Court of the Virgin Islands are the only “court[s] of record in the Virgin Islands, and that therefore Justice Gomez, as a retired judge of the United States District Court of the Virgin Islands, cannot serve 11 4 We disagree that the phrase court of record in the Virgin Islands excludes the District Court As a threshold matter, the Revised Organic Act expressly provides that The judicial power of the Virgin Islands shall be vested in a court of record designated the ‘ District Court of the Virgin Islands established by Congress, and in such appellate court and lower local courts as may have been or may hereafter be established by local law 48 U S C § 161 1(a) Even if we were to assume, without deciding, that this characterization of the District Court exercising the judicial power of the Virgin Islands has been implicitly repealed by Congress see Edwards v HOVENSA LLC 497 F 3d 355 359 (D V I 2007) for much of the period in which Designated Justice Gomez served as an active judge of the District Court, that court, through its Appellate Division, exercised appellate jurisdiction to review decisions of the Superior Court of the Virgin Islands See 48 U S C § 1613a The United States Court ofAppeals for the Third Circuit has expressly held that the Appellate Division ofthe District Court is a court of the Virgin Islands V.I Conservation Soc y Inc v V 1 Bd ofLand Use Appeals, 10 F 4th 221 231 (3d Cir 2021) 1] 5 In any event, courts have repeatedly recognized the difference between language referring to a “court O_f’ a jurisdiction and a “court i_n” a jurisdiction As the United States Count ofAppeals for the Ninth Circuit succinctly explained, The clause's use of the preposition “of" rather than in is determinative Black's Law Dictionary defines ‘ of” as a term denoting that from which anything proceeds; indicating origin, source, descent, and the like ” BLACK'S LAW DICTIONARY 1080 (6th ed 1990) Thus, courts of" Virginia refers to courts proceeding from, with their origin in, Virginia i e , the state courts of Virginia Federal district courts, in contrast, proceed from, and find their origin in, the federal government Doe I v AOL LLC 552 F 3d 1077 1081 82 (9th Cir 2009) See also Am Soda LLP v U S Filter Wastewater Group Inc 428 F 3d 921 926 (10th Cir 2005) (interpreting Courts of the State of Colorado” to mean Colorado state courts, the clause “refers to sovereignty rather than geography )' Dixon v TSE Intl Inc 330 F 3d 396 398 (5th Cir 2003) (interpreting Courts of Texas, U S A to mean Texas state courts; “[1]ederal district courts may be in Texas, but they are not of Texas ’); LFC Lessors Inc v Pac Sewer Mam! Corp , 739 F 2d 4, 7 (lst Cir 1984) (interpreting forum selection and choice of law clause stating the contract shall be interpreted according to “the law and in the courts, of the Commonwealth of Massachusetts to designate the state courts of Massachusetts, the word ‘01” as it appears in the phrase in question must have been intended to restrict the meaning of both ‘law and courts’ to those that trace their ongin to the state ) Since section 24 permits the designation of a retired judge of a court of record i_n the Virgin Islands, ’ as opposed to a court of record o_f the Virgin Islands,” and the District Court is unquestionably a court of record that is in the Virgin Islands, Justice Gomez is unquestionably eligible to serve as a Designated Justice 4 1| 6 Miller argues, in the alternative, that section 24 is unconstitutional to the extent it permits Justice Gomez to serve as a Designated Justice of this Court First, Miller maintains that section 24 is inconsistent with the United States Constitution in that it purportedly enlarges the jurisdiction ofjudges of the District Court beyond that determined by Congress 5 As a threshold matter, this cannot be the case with Designated Justice Gomez, in that he is a retired judge who no longer serves on the District Court But in any case, it is well established that jurisdiction is conferred on counts, not judges Mcszy v Murguza, 370 Fed Appx 960, 961 (10th Cir 2010); see also 48A C J S Judges § 15 ( [J]urisdiction is possessed by the courts, not judges, since a judge is merely an officer of the court and not the court itself ) As such, a judge of the District Court who sits on this Court as a Designated Justice does not exercise the judicial power of the District Court but that of this Court, and the jurisdiction of the District Court is no more enlarged than the jurisdiction ofthe United States Court ofAppeals for the Ninth Circuit is enlarged when its judges sit by designation on the High Court ofAmen'can Samoa See Adam C Clanton, How to Transfer 4 Miller also contends in his motion that this Court should consider that judges of the District Court retired or otherwise are not amongst the individuals included in the enumerated list found in section 24(b) However, section 24(b) is unrelated to section 24(a), in that section 24(b) identifies which judicial officers may be “recalled for temporary service” anywhere within the Judicial Branch of the Virgin Islands, while section 24(3) addresses the designation of an individual to serve as a Designated Justice in a specific case that a regular Justice is unable to hear 5 In making this argument, Miller appears to imply that the Legislature cannot under any circumstances enlarge or reduce the jurisdiction of the District Court, much like a state legislature cannot do so with respect to a federal district court sitting within its state However, Congress has, in fact granted the Legislature the authority to determine at least some aspects of the District Court 3 jurisdiction See VI Conservation Soc y, 10 F 4th at 231 (holding that the Virgin Islands Legislature determined the juiisdiction of the Appellate Division of the District Court) Nevertheless, as we shall explain, the authority of the Legislature with respect to the jurisdiction of the District Court is ultimately irrelevant, since Designated Justice Gomez is not exercising the Venue when You Only Have One The Problem ofHigh Profile Crzmmal Jury Trials m American Samoa 29 U HAW L REV 325 349 50 (2007) 1] 7 Miller further argues that section 24 violates the separation of powers principles inherent in the Revised Organic Act by permitting the ChiefJustice to appoint an individual to serve on the Supreme Court of the Virgin Islands who has not been nominated by the Governor of the Virgin Islands and confirmed by the Legislature of the Virgin Islands Miller ignores, however, that the power to nominate or appoint a judicial officer is not an inherent power of the Executive Branch but may only be exercised by a governor if expressly authorized by constitution or statute See 48A C J S Judges 9‘ 28 (collecting cases) The Revised Organic Act does not set forth how particular judicial officers are appointed or specify the qualifications to hold judicial office Rather, it provides that [t]he rules governing the practice and procedure of the courts established by local law and those prescribing the qualifications and duties of the judges and officers thereof, oaths and bonds, and the times and places of holding court shall be governed by local law or the rules promulgated by those courts 48 U S C § 161 1(0) This Court is a court established by local law, and the Legislature exercised this power by enacting section 24 to authorize the Chief Justice to appoint a Designated Justice and to permit a retired judge of the District Court to serve as a Designated Justice ifso appointed Moreover, this Court has similarly exercised its authority under the Revised Organic Act to enact rules endorsing and implementing section 24 See V I S CT R 104 l; V I S CT IO P 10 3 Consequently, section 24 is wholly consistent with the Revised Organic Act 6 6 Miller also asserts that section 24 violates the Supremacy Clause of the United States Constitution However, it is well established that the Supremacy Clause has no direct role in a conflict between federal law and territorial law” because the Virgin Islands draws its sovereignty 11 8 For these reasons, we conclude that Justice Gomez is qualified to serve as a Designated Justice of this Court for the purpose of hearing the instant case Accordingly, we deny the motion with respect to its claim that the panel is not properly constituted 7 Dated this 6th day of October, 2021 ATTEST VERONItZA J HANDY ESQ Clerk of eCOM By D ty Clerk D d 3134ka [02" been directly delegated to it by Congress Bryan v Fawkes 61 V I 416 438 (V I 2014) see also Lewxs v Alexander 685 F 3d 325 346 n 18 (3d Cir 2012) Sakamoto v Duty Free Shoppers Ltd 764 F 2d 1285 1286 87 (9th Cir 1985) Anthony Ciolli The Power of United States Territories to Tax Interstate and Foreign Commerce Why the Commerce and Import Export Clauses Do Not Apply 63 TAX LAW 1223 1246—47 (2010) 7 As noted earlier, the decision of a Justice of this Court to recuse or not recuse himself or herself from a particular case is vested exclusively in that Justice and is not subject to review by this Court We therefore express no opinion on whether Justice Gomez should or should not recuse himself