d legislatively it has been solved prospectively your honor if i may before we get into the into the into the substance i would like to reserve three minutes for repose yes that's going to just depend on the record but to return to your question your honor unification bill that was an act of this summer solve the problem prospectively it did not why doesn't it solve it for this instance too because your honor the act only take that the act goes into effect yes your honor and that's correct and we're here to argue that that was in that that temporary restraining order is invalid right even if it had been invalid well let me ask it this way scuse me did the and shortly before maybe the day before the effective date of the removal a temporary restraining order was entered you may be correct about that it may have happened before the formal appointment of her or designation this case ok but then in that case  he was simply prevented from making such a designation by absolutely he was and if the legislature had not acted we would be here adjudicating whether or not your client had the right to remove or not but in the meantime the legislature has intervened and said that judge dunstan who was then and remains the presiding judge is allowed to remain in office until just don't think that's correct even or i don't think that the action of the legislature post dated the beginning of this lawsuit and act to move the case unless it's retroactive to some earlier date before the lawsuit began well that's true if and only if judge dunston at some point of time ceased being the presiding judge in what i'm wrestling with and perhaps my colleagues as well is that it does not appear from this record that judge dunstan ever cease the presiding judge when and if i'm wrong of that please show me where and when and how he stopped acting but being the being rather being well by virtue if indeed the governor has the power of designation and that power is not circumscribed in some way then his letter to then presiding judge dunstan indicating his intention to remove him and designate that willetts in his stead operates in effect as a removal how do you get that how do you get that why should we not take the governor at his own word the governor's letter says you're going to stop being the presid judge as of date x at date x minus one there's a temporary restraining order entered that prevents that from going into effect you can say it was a bad award or should the happen but it happened it is what it is a judicial order was in place that said the were frozen in time nothing's going to change as to who's where while we sort this out then the end then the legislature intervenes that's the sequence of events as i understand them if i'm wrong about the chronology as judge heart of it said i think i think you generally correct ok so at what point is it the case th judge dunstan ceased to be the presiding judge he was the presiding judge the governor who claims to have the power to do something specified the date on which he would stop being presiding judge and before that happened a judicial order prevented that from occurring and then the legislature intervenes how in that arc of time well i think you get to dunston excuse me judge johnston is not the presiding judge and i think your honor at the time that the lawsuit less commenced as you idea of something being moot i mean that the whole notion of movements is something happens that makes the decision making irrelevant at this point we would be at this point you want to go back in time and undo something which the legislature has already changed they've changed the the playing field we can't ignore that they've changed the playing field can we i think you can your honor because i don't believe it could possibly be the correct outcome that by is why do you think history in the legislature chose to act if not with the intention of taking this question out of the courts and deciding it as a matter of the will of the people it seems pretty clear to me that this was not something that they did because it just struck a monday hey let's talk about presiding judges they were responding to an interim branch conflict and deciding how they a publicized into a branch conflict that was taking this playing out in the federal court the unification bill in its origin substantially predates all this year on the unification well it was a significant piece of legislation that worked its way through the system for a considerable period of time was the subject of a considerable amount of debate for had nothing to do with the fact that gov map stunts and we're in a fight in federal court there i don't believe there's any when students of timing that this happened that's correct your arises under federal law for purposes of of federal jurisdiction because he raised an argument the local statutory scheme to which he claims in title meant if interpreted a certain way violates the separation  powers i think your honor i don't think it's disputed any level that this position is a local opposition diverse alice courts are created by the local government the position was created by the legislature the authority to designate or not is created by the legislature so when you have thought that if they had intended for the governor to be able to remove the presiding judge the legislation existing the change would have been clear about that i mean our kendall officers from a coordinated branch then you we expect that going to be not left the inference or presumption yet you're here arguing precisely that that we should infer that the government of governor scott that power because it's certainly not all of him from a separate position then superior court judge he remains as a career court judge but you're but there's no question it's removing him from the office and responsibility of presiding judge that's right your honor the there's a number of sources of i'm having trouble making that square with what we said in kind of versus russell which is not that it's incident two words natural that it would attend that we said if you're going to have the power to remove officers from a corner branch we'd expect the legislature make that plain it sounds like what your argument is is that the office of presiding judge is different it's like not big enough or not important enough well it's not the office within that rule you're no longer the administrative head of that court you are no longer in that position that well i mean that video of speaking to the judicial branch and saying you out you can still be a judge but you won't be running anything except your cases beat it i mean more honor the legislature did not confer upon him that power but he's got the power he's got the power so is he with the venue right well i think your honor if you read in re fleming and the other cases that are on point in a local courts construing local law i think you have to read them to respect to vend amos and dale i think that is our in our intuitive reaction but i think you have to read in we fleming with the supreme court of the virgin islands look at a very similar issue which was this rule fourteen of the superior court which purports to instead of picking up where he left off wanted to start if you would it would be most helpful if you would address this newtonist concern it are are we wrong well i should speak for  y but me and my are incorrect in understanding the chronology here there's a letter from the governor it says as of a specific date you will no longer be presiding judge but before that takes effect a temporary restraining order is put in place to prevent it from taking effect zack lee ok and then at some point before the permanent injunction is entered the legislation goes into effect that we've been talking about it goes into effect all right so is there a point in time where judge dunston ceases to be the presiding judge or is he the presiding judge in office when the legislation takes a fact is absolutely and the presiding judge without interruption during that entire period and the legislation says that nothing in this new act to shall be construed to allow the governor to remove the presiding judge from office so if that is not a clear definitive policy decision by the legislature i don't know what it is but those determines when the  let's assume that they are correct on the merits and that this court were to write an opinion that says the t r o should not have entered what's the upshot practically speaking then consideration i don't think well it's not a move this argument we're we're not here arguing anything over the moon is what we're trying to with we have an obligation to figure out whether we've got jurisdiction right and if a case is moot we don't have jurisdiction we've got no business saying anything that's the that's the challenge we're faced with i hear mr eaton saying uh no you got to get into it on the other hand i'm wondering do we have any right to get into and that's what we're asking you to address i will fully adopt the court's what appears to be a tentative proposition is that this case is moot on the basis basis that my client they reside in judge has never been removed in any way shape or form from his position as a presiding judge and that upon the effective date of the statute his future term is prescribed and that the governor categorically flat out has no power to remove the prior presiding judge which i think is the law on this to an end of it too but the strangely or perhaps ironically the governor is it true that the governor supported the unification of the administration and consolidation so he might not have i don't mean to presume that the governor like this portion of the bill but he it was he did support the legislation as a whole and that latter portion was added later it was and it didn't come out of the blue oh it was bo's it out of the last couple weeks that i can't not in the last couple of weeks now know but it was before that before the if my client has always said he would have died by the ruling of the court at this juncture he's defying the governor's edict frankly as a lawful you know it's hard for me to pin down what exactly would be the consequences if if you're correct and the statute does say point blank who was lawfully in office right that's the question who was lawfully in office mistreated says it has to be the case that it wasn't judge does then we're looking at the record and wondering is that the case or is it the case the judge  in office because he had been in office and a temporary restraining order prevented his removed from office even if the governor had the power to remove him but the but the permanent injunction was  because the governor did not have the power so as it stands right now of course with the permanent injunction something that should have been entered it was it or i know it was entered but the question is was the case moot at the point the legislature acted should the district court judge of said i don't have anything more to say about this judge dunstan was in office because of my temporary restraining order preventing any removal that might have taken place and now the legislature spoke i've got nothing more to say about it and i shouldn't say anything more about it if i'm tracking you i think the news would kick in after the judge's ruling trial court's ruling saying that he is the judge because there was no intervening interruption of the temporary restraining order point i mean i believe it was and i got is if that if the action of the legislature is the that because it says judge dunston it says who the current occupant serves in tell the end of that occupancy term in office and that current occupant of ship is judge johnson by virtue of the t r o then was there any warrant for the district court to enter a permanent injunction or should the district court had this miss the case as moot at that point to shoot from the hip but i think he could have done it upon the assurance that this issue was fully and finally resolved by the by the legislation and again i would want to note too that presiding judge dunston remains in office remains and tell the term as per stride by the court unification bill is one point about the merits of i've kept you other that's fine i have so much i'd be very interested in any specific questions i have volumes and volumes of material on this i guess this whole case is remind me distortion field that's where every power that presiding judge has is being trivialized and shrunk down it's almost like a house of mirrors you know in a carnival everything all of his powers are tiny they're short down and distorted but all of the governor's powers are are expansive there his chain of command exceeds by his conception far beyond this fear of the executive branch and and and to me you have a massive case of encroachments on the the internal functioning of a autonomous co equal branch i think we're talking here  or i take to be the argument that the governor has authority to appoint judges that requires legislative confirmation has a term limit but the authority to designate upsetting just doesn't have similar cases that leads to the implication that it's us it's an at will appointment he can appoint he can remove because it doesn't have the same sort of statement senate exists with respect to point the office of judge itself what's what's your response to that al i think that's a non sequitur because that in each case number one dictionary definition designate is about the same as a point he doesn't have the ability to remove the judges he appoints nor for any principled reason or distinction should he have the ability to remove without cause that the the judge designates and i removal power of any kind you have to find it somewhere in the revised organic gak couldn't find it for the legislature and certainly can't find that for the executive branch and we talked about  reference in the revised organic act to no two the absence total absence of any removal power of  judge at the time and had tried to influences decisions that in turn led to the koch institute could institute that in turn led to the british  having historical consequence and i hope i hope the court will take this i know it will as a very very serious constitutional principle at stake as it has couple things on this your honor the language in the act two things the act if if if the legislature had intended to capture this case they could have done so by making it retroactive it's civil legislation there's no problem with more or less every dish will official in the islands is a classic punt language it doesn't say he can't it just says it won't be construed that way i don't think you can put a lot of emphasis on what that actually means what your hard your argument is although the legislature went out of its way to say nothing here in should be construed as giving the governor power to do x y and z that's really not them saying the governor doesn't have that power that's them just saying we have no position on the matter at motors and up and back and most your honor it's them saying he doesn't have it under the new statute which if anything implies that he did have it under the old he you can read that either way i don't think you could work anything again let's let's assume you're dead right on the ear happened well i think your honor if indeed we are correct that the district court lacked federal question jurisdiction that there was no federal jurisdiction of this under this and everything it did is void it never happened is void at initio which returns us to the point i think it's void have an issue i mean if it didn't have jurisdiction then its orders whether they were in effect for a year or three months can't have had effect right i mean if it didn't have jurisdiction it had no jurisdiction to enjoin anyone to do anything so i don't think that could be the right answer your so your or your argument is that we have to decide the jurisdiction appoint bye bye by deciding the merits or can or or are we is it enough to say this clearly implicated separation of powers question under the revised organic act so there was jurisdiction i don't have to go farther than that no as we've argued you honor it is not enough that there is an issue presented in that implicates the revised organic act under modern supreme court arising under jurisprudence the existence of a federal statute and my desire to enforce that stat even if i have standing to do it is not sufficient to confer federal jurisdiction there has to be a create a cause of action created by federal law and the only way you get there is if you look at a statute assuming if there is no express one and there isn't here right there's no one nine hundred eighty three that governs here no no the argument on the other side is there's a separation there's a there is a cause a constitutional issue raised by the revised organic act you can't allow them to do what they're doing now whether you whether in the end they're right or wrong about that that's a federal question isn't it it's a revised organic act the question is can the governor as the executive remove the presiding authority in a coordinate branch of government that's a question that implicates the revised organic act and that's a federal question where's the flaw in that thought in that your honor is that the existence of an argument in support of his local law action i think everyone agrees that the roots of his action are local rights especially in employment action he lost his job no they don't all agree with that that's that's the whole point i mean you're asking us to assume your conclusion and say we have no jurisdiction because we assume the conclusion the government wants us to assume they say this raises an issue now maybe they're right or maybe they're wrong but that's what federal question jurisdiction is it's not who's right and who's wrong but is there a question are you asserting that it's actually thrillist there's not even any the not correct under the gun versus mitten and other supreme court cases including cases of this court if you do not have a federally created cause of action and he has never identified one and we can talk about how you identify a federal cause of action that has congress has to have evidence an intent to create both a right and a remedy who's less than one book lawyer who's got the right if not the occupant of the office to employ the to raise a question of separation of powers to say he can't remove me i'm in the office his action in removing me violates the separation of powers under no one saying he can't say the but that doesn't give the federal court jurisdiction over that question he can bring a put in a world for example let's go back a little ways before nine hundred eighty about the classic case of the fourth amendment case before nine hundred three eighty three existed if i in a state i'm accusing a public official of invading my rights under the fourth amendment and i sue him i can't get into federal court on that now why does the fourth amendment exist if not for me to enforce my rights under it but there was no cause of action that permitted it until congress enacted one and there has never in my knowledge on a been a separation of powers case brought under a specific cause of action to enforce the separation of powers if you look at the done and then so then your client enters some kind of a mandate from the governor's office that says from june twenty fifth two thousand and sixteen until the think well it's ok because well it's then continues by virtue of the legislation i see so if ok so you know even though even though well it was never appointed to the office he can t continues in an office i guess we all agree that the legislation causes the incumbent presiding judge to continue in office until the date specified in the legislat says all right all right so then you're saying a judge who was never appointed to the office but who should have been appointed to the office gets the benefit of that continuation i  judge the governor had expressed his intention to appoint judges will it was only prevented from doing that line or that's now been vacated i don't see how it would be reasonable not to return to that point permit him to do that in a retroactive way thank you thank you