STETSON LAW REVIEW
VOLUME 46 WINTER 2017 NUMBER 2
EFFECTIVE ADVOCACY IN A TERRITORIAL JURISDICTION SYMPOSIUM
INTRODUCTION
Symposium Introduction Kristen David Adams 227
ARTICLES
Past, Present, and Future of U.S. Territories: Expansion, Colonialism, and Self-Determination Carlos Iván Gorrín Peralta 233
For more than one hundred years, the United States has submitted the people of Puerto Rico to colonial rule through the power of the U.S. Congress over the territories. Many Puerto Ricans are dissatisfied with U.S. territorial policy, and people in the United States are finally starting to learn about this policy, largely due to Puerto Rico’s $72 billion public debt that threatens the U.S. bond market. This Article presents a historical overview of U.S. territorial expansion, examining the policy transformations and constitutional relations that have developed between the United States and its territories. The Author begins by presenting a historical overview of U.S. territorial expansion in the eighteenth and nineteenth centuries and examines how its territorial policy shifted at the turn of the twentieth century, shortly after the United States annexed territories in the Spanish- American War. The Author then argues that the United States’ constitutional relation with Puerto Rico deprives the country of sovereignty, contradicts the values on which the United States was established, and violates international norms that recognize the collective human right of self-determination. Ultimately, the Author concludes that the time has come to abandon the current territorial regime, which harms the territories—including Puerto Rico—and demeans the United States. The Author suggests that better options include admitting the territories as new states, establishing a treaty of free association, or recognizing the full independence of Puerto Rico.
Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia Neil Weare 259
Today, nearly five million Americans are treated as second-class citizens, denied full voting rights and representation in the national government simply because they live in U.S. Territories or the District of Columbia. The political realities in these “non-state” areas have fundamentally changed since the Constitution was ratified in 1788—the Territories were never meant to be quasi-permanent colonies and the District was not expected to be a major metropolitan city. This Article proposes a voting rights amendment to the U.S. Constitution that would bring the twenty- first century realities facing Americans in non-state areas in accordance with America’s most fundamental constitutional principles and democratic values. The Author begins by examining both the historical and modern understandings of representation in the national government.A foundational American principle is that federally elected officials represent “We the People of the United States,” not We the People of the States United. The Author traces this principle through relevant caselaw and the expansion of voting rights through previous amendments to the U.S. Constitution. To realize this principle in non-state areas, the Author proposes an amendment to the U.S. Constitution. The amendment would most notably include full participation in presidential elections, and representation in the Senate and the House of Representatives. The Author reasons this amendment would bring emerging political opportunities for either party, and ultimately would effectuate the meaning of the U.S. Constitution—“We the People of the United States.”
Too Big to Fail: Banks and the Reception of the Common Law in the U.S. Virgin Islands Joseph T. Gasper II 295
In 1921, the U.S. Virgin Islands enacted a common law reception statute adopting the common law of England. Almost one hundred years later, in Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court held that its establishment as the court of last resort allowed it to shape the common law, and was thereby a de facto repeal of the reception statute. Notably, no other American state or territory had ever invalidated a reception statute in its entirety. While the effects were not immediately apparent, the past several years have demonstrated the remarkable impact of the court’s decision. However, the decision has precipitated numerous unintended consequences. This Article explains the reasoning behind the Banks decision and the subsequent development of the law. The Author begins by examining the history of how other jurisdictions received the common law in an attempt to place the Virgin Islands within the national context. The Article also traces the history of the 1921 reception statute and its subsequent invalidation by the Virgin Islands Supreme Court. Ultimately, the Article argues for a clarification on Banks and for the reenactment of the reception statute, albeit without the historic “restatement mandate.” By eliminating the “restatement mandate” from the reception statute, the Legislature can preserve common law while simultaneously upholding its creation of a court of last resort.
A Common Law of and for the Virgin Islands James L. Huffman 367
In Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court departed from a provision in the Virgin Islands Code that had adopted the American Law Institute’s restatements as the common law of the Virgin Islands. Before Banks, the common law of the Virgin Islands was entirely imported, was implemented all at once instead of over time, and possessed no inherently local or homegrown properties. Accordingly, Virgin Islands courts were essentially applying the common law of other jurisdictions. However, Banks caused a paradigm shift that has allowed Virgin Islands courts to begin cultivating a common law tailored to the specific needs of the people it governs without automatically deferring to the restatements. This Article begins by analyzing the historical nature of the common law process. Notably, the Author argues that because the common law of a particular locality is founded on its ever-evolving customs, it is necessary for judges to consider the expectations and objectives of those affected when shaping the contours of existing precedent. Next, the Article focuses on Banks, explaining in detail the analysis it mandates when a Virgin
ii Islands court is deciding whether to ratify a restatement rule or adopt a better alternative. Then, the Author examines how Virgin Islands superior courts have applied the Banks analysis. This comprehensive review reveals that while some superior courts misapprehended their duty to reexamine the merits of a challenged restatement rule, others considered local needs and circumstances in determining the soundest rule for the Virgin Islands. Ultimately, the Author concludes that if Virgin Islands courts rely on the demonstrated preferences of Virgin Islanders when determining the soundest rule for the jurisdiction, they will be able to successfully develop an organic common law of and for the Virgin Islands.
Living with Banks: Trends and Lessons From the First Five Years Kristen David Adams 391
In the 2011 seminal case of Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court significantly altered the analytical framework that Virgin Islands courts must follow when deciding issues of first impression. Prior to Banks, Virgin Islands courts were statutorily obligated to follow the American Law Institute’s Restatements of the Law when adjudicating novel legal issues. However, Banks implicitly abolished that statutory obligation and replaced it with a three-pronged test, commonly referred to as a Banks analysis. Since Banks was decided, at least 120 cases have referenced the decision when analyzing issues of first impression in the Virgin Islands. This Article examines that body of caselaw and identifies some trends and best practices that have developed after Banks was decided. The Author begins by examining the continuing influence of the Restatements after Banks and argues that, although Banks has become the controlling doctrinal test, the Restatements still provide influence in the Virgin Islands. However, despite this influence, the Author emphasizes that litigants should not confuse the current persuasive power of the Restatements with the legal force they had prior to Banks. In addition, the Author reasons that courts applying Banks have provided guidance in which litigants should take note. For example, Virgin Islands courts have suggested that litigants are now required to take an active role in matters of first impression by including a Banks analysis in their legal briefs. The Author also provides examples of when a court may refuse to conduct a Banks analysis. Further, the Author evaluates which factor of the Banks analysis, if any, is controlling when a court conducts such an analysis. Ultimately, the Author concludes that Banks has unquestionably improved the jurisprudence of the Virgin Islands. Now that the decision has reached maturity, it should provide even more clarity and consistency to Virgin Islands caselaw for years to come.
STUDENT WORK
Trouble in Paradise? Examining the Jurisdictional and Precedential Relationships Affecting the Virgin Islands Judiciary Katy Womble and Courtney Cox Hatcher 441
This Article analyzes the complex and intriguing interplay among the several courts governing the United States Virgin Islands. The Authors begin by discussing the early history of the Virgin Islands, including the Virgin Islands’ transition from a civil law system to a common law system. The Authors then examine the more recent history, beginning with the establishment of the Virgin Islands Supreme Court in 2004 and continuing
iii to the present, which has led to various jurisdictional and precedential issues. Specifically, the Authors discuss the relationships between the United States Court of Appeals for the Third Circuit and the Virgin Islands Supreme Court; the Virgin Islands Supreme Court and the Superior Court of the Virgin Islands; and the Superior Court of the Virgin Islands and the District Court of the Virgin Islands. The Authors focus on the Virgin Islands’ unique status as a territory but not a state—a status that leads to conflict among these courts, such as the debate regarding the interpretation and application of the Territorial Clause. The Article concludes by identifying and analyzing trends in recent Virgin Islands caselaw while recommending solutions for dealing with persistent issues within the Virgin Islands’ judicial relationships.
iv STETSON LAW REVIEW
VOLUME 46 WINTER 2017 NUMBER 2
EXECUTIVE BOARD
Editor in Chief A. EVAN DIX
Executive Editor Managing Editor MONICA STRADY ADRIANA H. FOREMAN
Notes & Comments Editors Articles & Symposia Editors JACOB BOEHNER BRITTNIE BURNS ARDA GOKER JU YOUNG JANG MATTHEW B. GREETHAM JEFFREY KELLER LEAH JOHNSON VANESSA M. MOORE VIVIANA VASIU Research Editor JESSICA VIOLA Recent Developments Editor JESSICA VANDER VELDE Marketing Editor KALEY WITECK Assistant Editors DALTON ALLEN Faculty Advisors LAUREN BAIO JASON R. BENT SHELBY A. MARS JOSEPHINE W. THOMAS NICOLE ZAWORSKA
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v FACULTY AND DEANS
CHRISTOPHER M. PIETRUSZKIEWICZ, B.A., J.D., LL.M., Dean; Professor of Law KRISTEN DAVID ADAMS, B.A., J.D., LL.M., Professor of Law MICHAEL P. ALLEN, B.A., J.D., Professor of Law; Director, Veterans Law Institute THOMAS E. ALLISON, B.S., M.B.A., J.D., LL.M., Professor of Law Emeritus LINDA ANDERSON, A.B., J.D., Professor of Legal Skills MICHAEL AVERY, B.A., LL.B., Visiting Professor of Law ROBERT BATEY, B.A., J.D., LL.M., Professor of Law Emeritus CYNTHIA BATT, B.S., M.ED., J.D., Associate Professor of Law; Director, Clinical Education; Associate Director, Veterans Law Institute MARK D. BAUER, B.A., J.D., Professor of Law DOROTHEA A. BEANE, B.A., J.D., Professor of Law; Co-Director, Institute for Caribbean Law and Policy JASON R. BENT, B.A., J.D., Associate Professor of Law ROBERT D. BICKEL, B.A., J.D., Professor of Law Emeritus PAUL J. BOUDREAUX, B.A., J.D., LL.M., Professor of Law BROOKE J. BOWMAN, B.S., M.S., J.D., M.L.I.S., Professor of Legal Skills; Associate Director, Center for Excellence in Advocacy; Moot Court Advisor TAMMY L. BRIANT, B.S., B.A., J.D., Assistant Dean for Student Affairs CATHERINE JUNE CAMERON, B.A., M.A., J.D., Professor of Legal Skills CARLISS CHATMAN, B.A., J.D., Bruce R. Jacob Visiting Assistant Professor of Law JOHN F. COOPER, B.A., J.D., LL.M., Professor of Law Emeritus LEE A. COPPOCK, B.A., J.D., Visiting Professor of Law KIRSTEN K. DAVIS, B.A., J.D., PH.D., Professor of Law; Director, Institute for the Advancement of Legal Communication CYNTHIA H. DEBOSE, B.A., J.D., Professor of Law WILLIAM R. ELEAZER, B.A., J.D., LL.M., Distinguished Professor of Law Emeritus KELLY M. FEELEY, B.S., J.D., Professor of Legal Skills MICHAEL S. FINCH, B.A., J.D., S.J.D., Professor of Law PETER L. FITZGERALD, B.A., J.D., LL.M., Professor of Law Emeritus ROBERTA KEMP FLOWERS, B.A., J.D., Professor of Law; Co-Director, Center for Excellence in Elder Law JAMES W. FOX,JR., B.A., J.D., Leroy Highbaugh Sr. Research Chair; Professor of Law ROYAL C. GARDNER, A.B., J.D., Professor of Law; Director, Institute for Biodiversity Law and Policy RAFAEL GUZMAN, B.A., LL.B., Distinguished Professorial Lecturer CAROL E. HENDERSON, B.A., J.D., Professor of Law KEVIN HUGHES, B.S., Assistant Dean for Development and Alumni Engagement BRUCE R. JACOB, B.A., J.D., LL.M., S.J.D., LL.M., Dean Emeritus; Professor of Law MARCO J. JIMENEZ, B.A., B.S., J.D., Professor of Law AMELIA MICHELE JOINER, B.A., J.D., Associate Professor of Legal Skills TIMOTHY S. KAYE, LL.B., PH.D., Professor of Law; Faculty Advisor, Journal of Advocacy JOHN KEYSER, B.S., M.S., Assistant Dean for Administration and Decision Support PETER F. LAKE, B.A., J.D., Charles A. Dana Chair; Director, Center for Excellence in Higher Education Law and Policy JEROME C. LATIMER, B.A., J.D., Professor of Law Emeritus LANCE N. LONG, B.A., J.D., Professor of Legal Skills TERENCE F. MACCARTHY, B.A., J.D., Distinguished Professorial Lecturer THOMAS C. MARKS,JR., B.S., LL.B., PH.D., Professor of Law Emeritus CATHERINE MARTIN, B.S., M.B.A., Assistant Dean for Career Development FELISHA MCCASTER, A.S., Registrar JANICE K. MCCLENDON, B.A., J.D., LL.M., Professor of Law Emeritus LIZABETH A. MOODY, A.B., J.D., Distinguished University Professor Emeritus; Dean Emeritus REBECCA C. MORGAN, B.S.B.A., J.D., Boston Asset Management Chair in Elder Law; Co-Director, Center for Excellence in Elder Law JOSEPH F. MORRISSEY, B.A., J.D., Professor of Law LUZ ESTELLA NAGLE, LL.D., LL.M., M.A., J.D., Professor of Law JASON PALMER, B.A., J.D., Professor of Legal Skills; Coordinator, Legal Research and Writing GEORGE A. B. PIERCE, B.S., J.D., M.S., Culverhouse Distinguished Practitioner in Residence ANN M. PICCARD, B.A., J.D., LL.M., Professor of Legal Skills ELLEN S. PODGOR, B.S., J.D., M.B.A., LL.M., Gary R. Trombley Family White-Collar Crime Research Professor; Professor of Law THERESA J. PULLEY RADWAN, B.A., J.D., Professor of Law CARLA L. REYES, J.D., LL.M., M.P.P., Visiting Assistant Professor of Law GAIL L. RICHMOND, A.B., M.B.A., J.D., Visiting Professor of Law CHARLES H. ROSE III, B.A., J.D., LL.M., Professor of Excellence in Trial Advocacy; Director, Center for Excellence in Advocacy SUSAN D. ROZELLE, B.A., J.D., Associate Dean for Academic Affairs; Professor of Law JUDITH A.M. SCULLY, B.A., J.D., Wm. Reece Smith Jr. Distinguished Professor of Law JAMES A. SHEEHAN, B.A., J.D., Distinguished Practitioner in Residence
vi STACEY-RAE SIMCOX, B.S.C./B.A., J.D., Associate Professor of Legal Skills; Director, Veterans Advocacy Clinic BRADFORD STONE, B.A., J.D., Charles A. Dana Professor of Law Emeritus JR SWANEGAN, B.A., J.D., Assistant Dean for International Programs MICHAEL I. SWYGERT, B.A., J.D., LL.M., Professor of Law Emeritus RUTH FLEET THURMAN, B.A., J.D., LL.M., Professor of Law Emeritus CIARA TORRES-SPELLISCY, A.B., J.D., Associate Professor of Law REBECCA S. TRAMMELL, B.A., M.L.I.S., J.D., PH.D., Professor of Law; Director, Dolly & Homer Hand Law Library; Director, Electronic Education STEPHANIE A. VAUGHAN, B.A., J.D., Associate Dean for Student Engagement; Professor of Legal Skills LOUIS J. VIRELLI III, B.S.E., M.S.E., J.D., Professor of Law DARRYL C. WILSON, B.B.A., B.F.A., J.D., LL.M., Associate Dean for Faculty and Strategic Initiatives; Attorneys’ Title Insurance Fund Professor of Law; Co-Director, Institute for Caribbean Law and Policy J. LAMAR WOODARD, B.A., J.D., M.S.L.S., Professor of Law Emeritus; Law Librarian Emeritus CANDACE ZIERDT, B.A., J.D., LL.M., Professor of Law LAURA ZUPPO, B.A., M.B.A., M.S., Assistant Dean for Strategic Enrollment Management
LAW LIBRARIANS
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vii STETSON UNIVERSITY COLLEGE OF LAW
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ix
SYMPOSIUM INTRODUCTION
Kristen David Adams
On Friday, March 18, 2016, the Stetson Law Review hosted a day-long symposium on the topic, “Effective Advocacy in a Territorial Jurisdiction: The Repudiation of the Restatements in the Virgin Islands and Emerging Issues of Political Status in the Territorial and Insular Jurisdictions of the United States.” The Symposium was inspired by a development in the common law of the Virgin Islands that is not particularly well-known outside the jurisdiction, so I have described it briefly below. From 1957 until the creation of the Supreme Court of the Virgin Islands a decade ago, Section 4 of Title 1 of the Virgin Islands Code dictated that the American Law Institute’s Restatements of the Law would serve as the rules of decision in Virgin Islands courts. In the landmark case of Banks v. International Rental & Leasing Corp.,1 the Virgin Islands Supreme Court held that this provision was no longer valid because it was in irreconcilable conflict with the Supreme Court’s statutory and inherent authority to shape the common law. Subsequent caselaw has established that the Restatements no longer constitute the rules of decision in territorial courts— instead, all common law issues must be addressed as issues of first impression and resolved by employing what has become known as a Banks analysis. The Banks analysis requires courts applying Virgin Islands law to consider three factors in establishing a common law rule: “[F]irst examining which common law rule Virgin Islands courts have applied in the past; next identifying the rule adopted by a majority of courts of other jurisdictions; and then finally—but most importantly— determining which common law rule is soundest for the Virgin Islands.”2
1. 55 V.I. 967 (V.I. 2011). 2. Machado v. Yacht Haven U.S.V.I., LLC, 61 V.I. 373, 380 (V.I. 2014) (citation and internal quotation marks omitted). 228 Stetson Law Review [Vol. 46
The Banks line of decisions has been both important and controversial, and more than 150 cases have now been decided employing the Banks analysis. Accordingly, as this Symposium was held almost five years after the Banks case was decided, the timing seemed right to bring together a group of scholars, practitioners, and judges to discuss some of the emerging issues, not only in Banks advocacy, but also in territorial law more generally. The panel brought together not only individuals who had been long-time colleagues and friends, but also scholars and practitioners who shared an interest in some aspect of territorial law but had not previously collaborated or even met. The Symposium began with a panel that set the stage for the rest of the day’s discussion. This first panel was centered on insular law in the United States and the European Caribbean Territories. The issues discussed therein were all related to status, self-determination, and citizenship. The first panel included Professor Carlos Iván Gorrín Peralta of the Inter- American University of Puerto Rico, Dr. Flora Goudappel, Jean Monnet chair of EU trade law in the overseas territories at Erasmus University Rotterdam and interim dean of law at the University of Netherlands Antilles, Curaçao, and Mr. Neil Weare, Esq., President and Founder of the We the People Project. Professor Peralta’s work on Puerto Rico and the United States at the Crossroads has been featured in a recent book entitled, “Reconsidering the Insular Cases: The Past and Future of the American Empire,”3 published by the Harvard University Press. Dr. Goudappel specializes in European law in overseas territories, external borders, asylum and migration, and EU citizenship and free movement. Mr. Weare has devoted his professional life to achieving equal rights for Americans in the territories of the United States. He argued his first landmark case while still a law student and in February 2015 argued the case of Tuaua v. United States4 before the D.C. Circuit, making the case for equal citizenship in U.S. territories. Representing this first panel is an article by Professor Peralta, entitled, “Past, Present, and Future of U.S. Territories:
3. Carlos Iván Gorrín Peralta, Puerto Rico and the United States at the Crossroads, in RECONSIDERING THE INSULAR CASES:THE PAST AND FUTURE OF THE AMERICAN EMPIRE (Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015). 4. 788 F.3d 300 (D.C. Cir. 2015). 2017] Symposium Introduction 229
Expansion, Colonialism, and Self-Determination.”5 His article provides the historical context for the United States’ treatment of its territories from the eighteenth century to the present date, argues that the United States is in violation of its obligations under international law, and sets forth several possible means of going forward more productively. The second panel focused more specifically on one of the most timely and emergent issues facing non-state areas: voting rights. The panel was entitled, “Voting Rights in the Territories of the United States: Examining the History and Looking to the Future.” This panel featured Mr. Neil Weare, Esq., Mr. J. Russell B. Pate, Esq., President of the Virgin Islands Bar Association, and Mr. Anthony Ciolli, Esq., acting Legal Counsel for the Supreme Court of the Virgin Islands. Mr. Pate started his legal career working for a large plaintiff’s firm helping people who developed cancer from exposure to asbestos and other toxic substances. He then worked with the Federal Public Defender’s Office in Texas practicing criminal defense. Before opening his own law firm in 2010, he worked for an insurance defense firm in St. Thomas. As one of the first employees hired by the V.I. Supreme Court, Mr. Ciolli has participated in building a court of last resort from scratch and helping it involve into a mature institution. The second panel is represented by an article by Mr. Weare, entitled, “Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia.”6 The article, which includes the text of a proposed constitutional amendment, argues that such an amendment is important as an issue of racial justice and for the purpose of supporting the dignity and political rights of every American, no matter whether he or she lives in a state or one of the non-state areas covered by the proposed amendment. As we moved from the second panel into the third, the conversation shifted from issues of territorial law and status generally to issues focused on the Virgin Islands. The third panel, entitled, “Living with and Learning from Banks: Its History and Meaning for the Common-Law Process, and Best Practices in
5. Carlos Iván Gorrín Peralta, Past, Present, and Future of U.S. Territories: Expansion, Colonialism, and Self-Determination, 46 STETSON L. REV. 233 (2017). 6. Neil Weare, Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia, 46 STETSON L. REV. 259 (2017). 230 Stetson Law Review [Vol. 46
Banks Advocacy,” included Dean James Huffman, Dean Emeritus of Lewis & Clark Law School, The Honorable Robert A. Molloy of the Superior Court of the Virgin Islands, St. Croix Division, and Mr. Joseph Gasper, Esq., Appellate Law Clerk and Librarian for the Superior Court of the Virgin Islands. Dean Huffman has published numerous books and articles on a wide range of topics including constitutional law, jurisprudence, the evolution of the common law, legal history, and the history of legal education. Judge Molloy previously served as an attorney in the Office of Collective Bargaining and clerked at the Arlington County Circuit Court and in the District Court of the Virgin Islands. Prior to clerking, Mr. Gasper worked as an associate engaged in all areas of litigation practice and as a Special Assistant District Attorney for the Kings County District Attorney’s Office. Representing the third panel are two articles. Dean Huffman’s article, “A Common Law of and for the Virgin Islands,”7 sets forth the common law process as it has existed historically, describing it as a “bottom-up, supply-side, organic process,” and, after examining the implementation of Banks thus far in the Virgin Islands, concludes that the courts of the Virgin Islands have, in fact, begun to develop a body of common law that is uniquely of and for the people of the Virgin Islands. Mr. Gasper’s article is entitled, “Too Big to Fail: Banks and the Reception of the Common Law in the U.S. Virgin Islands.”8 After providing an overview of the past one hundred years of experience in the Virgin Islands as it relates to the reception of the common law, Mr. Gasper calls for the Virgin Islands Supreme Court to clarify Banks and explains why and how it should do so. He also examines the possibility of a new reception statute, explaining what the implications of such a statute would be. The final panel of the day was “Banks and the Judiciary: Examining the Jurisdictional Relationships Affecting the Virgin Islands Judiciary, as well as the body of Banks jurisprudence.” I was delighted to speak on this panel alongside two excellent students (now graduates) of Stetson University College of Law— Ms. Katrina Womble and Ms. Courtney Cox Hatcher. Before enrolling at Stetson, Ms. Womble worked for the leading liberal
7. James L. Huffman, A Common Law Of and For the Virgin Islands, 46 STETSON L. REV. 367 (2017). 8. Joseph T. Gasper II, Too Big to Fail: Banks and the Reception of the Common Law in the U.S. Virgin Islands, 46 STETSON L. REV. 295 (2017). 2017] Symposium Introduction 231 think tank, Center for American Progress, in Washington, D.C. She was also a Research Assistant for the Health Policy Department working on issues related to health care under the Affordable Care Act. Ms. Hatcher worked in the insurance industry prior to enrolling at Stetson. The fourth and final panel is represented by two articles. Ms. Womble and Ms. Hatcher’s article, “Trouble in Paradise? Examining the Jurisprudential and Precedential Relationships Affecting the Virgin Islands Judiciary,”9 sets forth a history of the development of the Virgin Islands court system, examines the relationships between the various courts and some challenges that have arisen in those relationships, and closes with a series of recommendations for resolving those challenges. My article, “Living with Banks: Trends and Lessons from the First Five Years,”10 is focused on identifying trends that have emerged in the first almost five years of Banks jurisprudence and is intended to serve as a practical resource for attorneys who are seeking to understand how Banks is being used. The Symposium enjoyed robust attendance, not only in person at the College of Law campus in Gulfport, Florida, but also via webcast, where a number of attorneys participated from the Virgin Islands as part of the Virgin Islands Bar Association’s quarterly meeting. One of the exciting results of the Symposium is a new, annual online issue of the Stetson Law Review that will be devoted to Virgin Islands law and other issues of territorial law. We look forward to this continued collaboration between Stetson University College of Law and the Virgin Islands Bar Association, and hope that many readers of this issue will consider contributing an article.
9. Katy Womble & Courtney Cox Hatcher, Trouble in Paradise? Examining the Jurisdictional and Precedential Relationships Affecting the Virgin Islands Judiciary, 46 STETSON L. REV. 441 (2017). 10. Kristen David Adams, Living with Banks: Trends and Lessons from the First Five Years, 46 STETSON L. REV. 391 (2017).
PAST, PRESENT, AND FUTURE OF U.S. TERRITORIES: EXPANSION, COLONIALISM, AND SELF-DETERMINATION*
Carlos Iván Gorrín Peralta**
I. INTRODUCTION
The central theme of this Symposium—The Repudiation of the Restatements in the Virgin Islands and Emerging Issues of Political Status in the Territorial and Insular Jurisdictions of the United States—requires an overview of the historical background and the legal framework of the territorial policy of the United States. Attorneys and law students of the territories might be familiar with that historical and legal backdrop; but the legal profession in the states is mostly unaware of the history and the legal underpinnings of the current relations between the United States and the territories. It is simply a well-kept secret: the power of Congress over the territories1 is absent from the canon of study of constitutional law in American legal education.2
* This Article is a revision of the Author’s presentation at the Symposium on Effective Advocacy in a Developing Jurisdiction: The Repudiation of the Restatements in the Virgin Islands and Emerging Issues of Political Status in the Territorial and Insular Jurisdictions of the United States, at Stetson University College of Law, Gulfport, Florida, March 18, 2016. ** © 2017, Carlos Iván Gorrín Peralta. All rights reserved. Professor, Inter-American University of Puerto Rico Faculty of Law; Vice President of the Inter-American Academy of International and Comparative Law; Former President of the Inter-American Bar Association. LL.M., Harvard University, 1984; J.D., University of Puerto Rico, 1974; A.B., College of the Holy Cross, 1971. I wish to thank Carlos Frontera, Edwin Irizarry Mora, and Luis Enrique Romero Nieves for the ideas and information they provided during the revision of this Article. 1. “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” U.S. CONST. art. IV, § 3, cl. 2. 2. Sanford Levinson, Installing the Insular Cases into the Canon of Constitutional Law, in FOREIGN IN A DOMESTIC SENSE:PUERTO RICO,AMERICAN EXPANSION, AND THE CONSTITUTION 121, 122 (2001). See also JUAN R. TORRUELLA,THE SUPREME COURT AND PUERTO RICO:THE DOCTRINE OF SEPARATE AND UNEQUAL 4 (Edit. Univ. de Puerto Rico 1985) (“Although at one time the Insular Cases were the subject of intense debate, . . . they are today hardly a flaming issue, having been relegated to the backburner of judicial 234 Stetson Law Review [Vol. 46
Some rhetorical questions might help illustrate the current relations. How would you feel about living in a place in which you might be able to vote for the governor, the local legislators, and your mayor, but were unable to vote for a president who might send your sons off to war or for any voting member of Congress, despite the fact that the laws enacted by that Congress apply fully in that place, and where there is a federal court with judges designated by a president you may not elect and confirmed by a senate in which you have absolutely no say? That seems to contradict the fundamental principle that “[g]overnments are instituted among Men, deriving their just powers from the consent of the governed.”3 That is the scenario endured by the inhabitants of the territories of the United States, including “Puerto Rico the oldest, largest, and most populous” territory4 —which was invaded 118 years ago during the Spanish American War of 1898.5 For more than half of its constitutional history, the United States has submitted the people of Puerto Rico, a Latin American nation, to colonial rule, in a subversion of the original values of the American Republic. The title of this Symposium refers to “emerging issues of political status in the territories.” Historically speaking, the issues are quite old. Perhaps what emerges at this time is the realization of their existence in some circles of the United States, as well as the territories’ increasing dissatisfaction with the existing regime. The Virgin Islands repudiated the Restatement.6 Some Samoans demanded recognition of U.S. citizenship.7 The
concern . . . . [Their] doctrine floats in the penumbra of legal priorities considerably below the rule against perpetuities.”). 3. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 4. United States-Puerto Rico Political Status Act, H.R. 4228, 104th Cong. § 2(14) (1996). 5. The World of 1898: The Spanish-American War,LIBRARY OF CONGRESS, https://www.loc.gov/rr/hispanic/1898/intro.html (last visited Feb. 28, 2017). 6. See Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 973–80 (V.I. 2011) (holding that the Virgin Islands Supreme Court possesses “the discretion to decline to follow the most recent Restatement provision in favor of local law”). 7. See Tuaua v. United States, 788 F.3d 300, 301–02 (D.C. Cir. 2015), cert. denied, 136 S. Ct. 2461 (2016) (stating that “the Citizenship Clause does not extend birthright citizenship to those born in American Samoa” despite the Appellants’—persons born in the American Samoas—assertion that it does). 2017] Past, Present, and Future of U.S. Territories 235 people of Puerto Rico repudiated the existing territorial relation in the plebiscite of 2012.8 It seems that the natives are restless. The increased awareness in the United States might have something to do with the seventy-two billion dollars of Puerto Rico’s public debt, which simply cannot be paid and threatens the stability of the U.S. bond market, especially because Puerto Rico is denied legal instruments to address a financial crisis that will soon become a humanitarian disaster.9 The territorial policy has failed, and the colony is broke. This Article will first present a historical overview of territorial expansion of the United States during the eighteenth and the nineteenth centuries. It will then examine how the territorial policy changed at the turn of the twentieth century, focusing specifically on the territories annexed during the Spanish-American War. That resulted in a new constitutional doctrine, which has served as a legal framework for the current U.S. policy. The Article will then assess the situation that evolved in Puerto Rico between 1950 to 1952, when Congress authorized the adoption of a “constitution” by the people of the territory. The Article will argue that half a century later, it turns out the constitutional relation between the United States and all its territories—including Puerto Rico—is the same as before and that Congress continues to exercise plenary powers over peoples
8. The plebiscite ballot contained two questions. R. Sam Garrett, Puerto Rico’s Political Status and the 2012 Plebiscite: Background and Key Questions,CONG.RES. SERVICE, June 25, 2013, at 5–6. The first one asked the voter to vote yes or no on maintaining the current territorial relation with the United States. Id. at 6. According to the records of the State Elections Commission, the vote was 46 percent “yes” and 54 percent “no.” Id. at 8. For the first time, a majority of the people rejected the territorial status. Id. On the second question, the voter could select among three options: statehood, independence and estado libre asociado soberano. Id. at 6. Of the total ballots cast, 44 percent voted for statehood, 4 percent voted for independence, 24 percent voted for estado libre asociado soberano (sovereign free associated state) and 27 percent did not vote for any of the options. Id. at 13. During the campaign, the Popular Democratic Party, which supports the present relation, had asked voters to cast blank votes in the second question. Ed Morales, Analysis: The Puerto Rico Plebiscite That Wasn’t, ABC NEWS (Nov. 8, 2012), http://abcnews.go.com/ABC_Univision/Opinion/puerto-rico-status-plebiscite/ story?id=17674719. Half of their electorate did so; the other half voted for the estado libre asociado soberano. Id. If the blank votes are factored out, statehood obtained 61 percent, independence 6 percent and estado libre asociado soberano 33 percent. Needless to say, the blank votes can reasonably be interpreted as not favoring statehood. Id.; Garret, supra note 8. 9. Jeff Spross, Why Puerto Rico Needs its Own Currency,THE WEEK (Mar. 28, 2016), http://theweek.com/articles/614699/why-puerto-rico-needs-currency. 236 Stetson Law Review [Vol. 46 absolutely deprived of sovereignty. Finally, the Article will examine how the territorial nature of the relation contradicts not only the foundational values on which the American republic was erected, but also the binding norms of international law, which recognize to all peoples the collective human right to self- determination.
II. A HISTORICAL VIEW ON TERRITORIAL EXPANSION
A. Territorial Expansion in the Eighteenth and Nineteenth Centuries
What are the legal foundations of the territorial policy? We must go as far back as the Treaty of Paris of 1783, in which Great Britain recognized the independence and geographical boundaries of the new nation.10 Back then, it included the original thirteen states and a stretch of land from the western border of those states to the Mississippi River.11 State disputes over that stretch of land were finally resolved four years later with the congressional adoption of the Ordinance of the Northwest Territory, which nationalized the title over most of those lands.12 They were to be inhabited by colonists who would continue to enjoy the same rights they enjoyed in the states of origin.13 The ordinance provided that new states were to be created from those lands, which would forever remain a part of the United States.14 The Ordinance of the Northwest Territory was adopted by Congress while the Constitutional Convention was in session. The plan laid out in the ordinance was incorporated into the new constitutional text. “New States may be admitted by the Congress into this Union. . . . The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”15 From the very onset, the Constitution would apply to all parts of
10. Treaty of Paris, U.S.-Gr. Brit., arts. 1–2, Sept. 3, 1783, Gen. Records of the U.S. Gov’t Record Grp. 11. 11. Id. 12. AN ORDINANCE FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED STATES NORTH-WEST OF THE RIVER OHIO (July 13, 1787). 13. Id. 14. Id. 15. U.S. CONST. art. IV, § 3. 2017] Past, Present, and Future of U.S. Territories 237 the United States, including the territory.16 Congress would have the power to break it down, carve specific portions, and “dispose” of them by admitting them as new states.17 Meanwhile, Congress would hold title over those lands with the power to adopt any rules it considered appropriate to execute the plan.18 Under this original design, the Territory Clause was simply a property clause that granted the federal government title over the territory that existed at the time. Over the course of the nineteenth century, the United States extended its territory dramatically, beginning with the Louisiana Purchase of 1803 from France, which practically doubled the geographical extent of the young nation,19 and the acquisition of Florida from Spain in 1819–1820.20 Those developments prompted the Supreme Court’s reinterpretation, in 1828, of the Territory Clause of the Constitution.21 According to the opinion, drafted by Chief Justice John Marshall, the clause not only granted Congress a property right over the territories—all of them—but also the right of sovereignty, to govern their inhabitants and everything within their borders.22 That was the legal framework that served the construct of manifest destiny, the ideological justification for territorial expansion to the confines of the continent and beyond: Oregon territory from Great Britain in 1846;23 half of Mexico in 1848;24 Alaska from Russia in 1867;25 and the coup d’état in the Kingdom
16. See U.S. GEN.ACCOUNTING OFFICE,REP. TO THE CHAIRMAN,COMM. ON RES., H.R., U.S. INSULAR AREAS:APPLICATION OF THE U.S. CONST. 9–24, 26 (Nov. 1997) (explaining that the insular areas enjoy the fundamental rights provided by the Constitution, but that other rights are only extended to citizens within the states, such as the right to vote in national elections, unless law allows for insular inhabitants to be included). 17. U.S. CONST. art. IV, § 3. 18. The Territorial Clause: Who Cares?,PUERTO RICO 51ST, http://www.pr51st.com/ territorial-clause-cares/ (last visited Feb. 28, 2017). 19. Library of Congress, Westward Expansion: Encounters at a Cultural Crossroads, LIBR. OF CONGRESS, http://www.loc.gov/teachers/classroommaterials/primarysourcesets/ westward/pdf/teacher_guide.pdf (last visited Feb. 28, 2017); Convention Between the United States of American and the French Republic, U.S.-Fr., Apr. 30, 1803, 8 Stat. 206. 20. Treaty of Amity, Settlement and Limits between the United States of America, and His Catholic Majesty, U.S.-Spain, art. 2, Feb. 22, 1819, Oct. 29, 1820, 8 Stat. 252. 21. Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 541–44 (1828). 22. Id. See also Late Corp. of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 42 (1890) (explaining the vast scope of power that Congress has over the U.S. territories). 23. Oregon Treaty, U.S.-Gr. Brit., pmbl., June 15, 1846, 9 Stat. 869. 24. Peace, Friendship, Limits, and Settlement (Treaty of Guadalupe Hidalgo), U.S.- Mex., pmbl., Feb. 2, 1848, 9 Stat. 922. 25. Treaty on the Cession of Alaska, U.S.-Russ., art. 1, Mar. 30, 1867, 15 Stat. 539. 238 Stetson Law Review [Vol. 46 of Hawai’i in 1893 that created a so-called “republic,” followed by annexation in 1898.26 Each of these acquisitions followed the scheme of the Northwest Territory. In order to extend the boundaries of the nation, all the new territories were acquired with the purpose of being eventually admitted as one or more states, and their inhabitants were to enjoy the same rights as citizens of the several states during their territorial transition.27 They would be colonized and temporarily governed by Congress, where they had no representation, until admission to statehood could be justified with sufficient population, economic resources, and the adoption of the core values embodied in the American form of government.28 Over the course of the nineteenth century, the nature of the Republic changed as the boundaries gradually crept across the continent. By the end of the nineteenth century, what Thomas Jefferson had dubbed “an empire of liberty”29 mutated into a regime that “claimed the liberty to rule an empire.”30 The
26. See Territory of Hawaii v. Mankichi, 190 U.S. 197, 209 (1903) (internal citation omitted) (stating “[b]y a joint resolution adopted by Congress, July 7, 1898, known as the Newlands resolution, and with the consent of the Republic of Hawaii, signified in . . . its Constitution, the Hawaiian islands and their dependencies were annexed ‘as a part of the territory of the United States’”). 27. See Mark S. Weiner, Teutonic Constitutionalism: The Role of Ethno-Juridical Discourse in the Spanish-American War, in FOREIGN IN A DOMESTIC SENSE:PUERTO RICO, AMERICAN EXPANSION AND THE CONSTITUTION 48, 64–65 (2001) (explaining how territorial expansion before 1898 followed the same “pattern of territorial development” outlined in the Northwest Ordinance, leading to admission to statehood, and how that pattern was “definitely broken” in 1898). 28. Congress has repeatedly employed three criteria to admit new states: (1) That the inhabitants of the proposed new State are imbued with and are sympathetic toward the principles of democracy as exemplified in the American form of government. (2) That a majority of the electorate wish statehood. (3) That the proposed new State has sufficient population and resources to support State government and at the same time carry its share of the cost of the Federal Government.
COMM. ON INTERIOR AND INSULAR AFF., ENABLING THE PEOPLE OF ALASKA AND HAWAII EACH TO FORM A CONSTITUTION, H.R. REP.NO. 84–88 TO ACCOMPANY H.R. 2535, 84th Cong., 39 (1955). 29. Carlos Iván Gorrín Peralta, Puerto Rico and the United States at the Crossroads, in RECONSIDERING THE INSULAR CASES:THE PAST AND FUTURE OF THE AMERICAN EMPIRE 183, 186 (Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015). See also Weiner, supra note 27, at 89 (providing the vision of Thomas Jefferson’s idea of an empire and its connection to the Manifest Destiny). 30. Gorrín Peralta, supra note 29, at 186. 2017] Past, Present, and Future of U.S. Territories 239 transformation culminated in 1898, as the United States acquired three new territories by conquest and treaty that were markedly different from those that motivated previous annexations.
B. A New Territorial Policy: The Rise of Empire for the Twentieth Century
The Spanish American War, Theodore Roosevelt’s “splendid little war,”31 served the political objective of reunification of the nation after the Civil War. The economic needs of new sources of cheap raw materials, new places for the investment of surplus capital, and the security of controlled export markets prompted a quick war to snatch the last holdings of the former Spanish empire.32 There were also geopolitical and strategic objectives: the expanding economic interests in Asia (to compete with Japan) and the required presence of a growing military might in the Caribbean (where plans for an interoceanic canal were already in motion).33 Spain ceded sovereignty over the Philippines, Guam, and Puerto Rico; it also “relinquished” sovereignty over Cuba, which was never formally a territory but instead—for many decades— was economically and politically controlled by the United States.34 Ironically, the Treaty of Peace was signed in Paris,35 the same city where the United States formally ceased to be a colony of Great Britain in 1783,36 and where now, in 1898, the United States would acquire colonies to become an imperial power. The different geopolitical, economic, and strategic motivations explain why the instrument of annexation did not reproduce the terms of previous acquisitions. The 1898 Treaty of
31. The phrase has been incorrectly attributed to Theodore Roosevelt, probably as a result of his personal involvement in the war. It was John Milton Hay, Secretary of State from August 1898 until his death in July 1905, who in a letter to President Theodore Roosevelt, referred to the 1898 imperial adventure as a “splendid little war.” John Milton Hay,LIBR. OF CONGRESS, https://www.loc.gov/rr/hispanic/1898/hay.html (last visited Feb. 28, 2017). 32. BARTHOLOMEW H. SPARROW,THE INSULAR CASES AND THE EMERGENCE OF AMERICAN EMPIRE 65 (2006). 33. Id. 34. Treaty of Peace, U.S.-Spain, Dec. 10, 1898, 30 Stat. 1754. 35. Id. 36. See Treaty of Paris, supra note 10, at art. 1 (memorializing the formal independence of the United States from Great Britain). 240 Stetson Law Review [Vol. 46
Paris states quite tersely that the political condition and the rights of the “native inhabitants” of the new possessions were to be determined by Congress.37 There would not be equal rights for the population, nor any promise of future admission of the new territories as states of the union.38 A debate ensued within political and academic circles regarding what to do with the new possessions. In several articles published by the Harvard Law Review and the Yale Law Journal in 1899, some legal academics advanced an “anti-imperialistic” position.39 The United States could not acquire foreign lands to govern indefinitely without participation of their people in the government. It would be argued, however, that the new
37. Treaty of Peace, supra note 34, at art. IX. 38. Id. Article IX of the treaty states: Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights. . . . In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making . . . within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. Id. (emphasis added) (footnote omitted). The text of this article is similar to Article III of the Treaty on the Cession of Alaska, which also secured citizens of the ceding nation their citizenship if they so chose, but had quite a different treatment for the “uncivilized native tribes.” Treaty on the Cession of Alaska, supra note 25. The inhabitants of the ceded territory, according to their choice, reserving their natural allegiance, may return to Russia within three years; but if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion. The uncivilized tribes will be subject to such laws and regulations as the United States may from time to time adopt in regard to aboriginal tribes of that country. Id. (emphasis added). This seems to have been the first time that the United States did not recognize constitutional protections to inhabitants of a newly acquired territory, in this case the “uncivilized native tribes” of Alaska. Id. Not only is it shameful that equal rights were not recognized for indigenous Alaskans, but thirty-one years later the same inequality would be perpetrated against all the native inhabitants of Guam, the Philippines, and Puerto Rico. Id. 39. E.g., Elmer B. Adams, The Causes and Results of Our War with Spain from a Legal Standpoint, 8 YALE L.J. 119, 126–27, 132 (1899); Carman F. Randolph, Constitutional Aspects of Annexation, 12 HARV. L. REV. 291, 299–300 (1898). 2017] Past, Present, and Future of U.S. Territories 241 possessions were populated by inferior races incapable of true civilized government; they could not be part of the American people and had to be relinquished as soon as possible.40 On the “imperialistic” side of the debate, other academics argued that the United States could acquire new lands through military conquest or treaty and govern them through the Territory Clause, with no constitutional limits.41 A third view emerged from the clash of the first two: the United States has the power to acquire and rule new territories, but a new territory is not part of the United States unless that is the will of the Congress.42 The new “unincorporated” territories belong to, but are not part of, the United States and can be ruled by Congress with minimal limitations.43 This “third view”—the theory of territorial non- incorporation—was elevated to the rank of constitutional doctrine by the Supreme Court in the so-called Insular Cases decided between 1901 and 1922.44 In a seminal concurring opinion in
40. See Randolph, supra note 39, at 304–05, 308–11 (discussing this concept with regard to Philippine islanders). 41. E.g., Simeon E. Baldwin, The Constitutional Questions Incident to the Acquisition and Government by the United States of Island Territory, 12 HARV. L. REV. 393, 395, 397– 99 (1899); Simeon E. Baldwin, The People of the United States, 8 YALE L.J. 159, 164 (1899); Charles C. Langdell, The Status of Our New Territories, 12 HARV. L. REV. 365, 372–73 (1899). 42. E.g., Abbott Lawrence Lowell, The Status of Our New Possessions—A Third View, 13 HARV. L. REV. 155, 172 (1899). 43. Id. at 169–70; John Kimberly Beach, Constitutional Expansion, 8 YALE L.J. 225, 228 (1899); James Bradley Thayer, Our New Possessions, 12 HARV. L. REV. 464, 471 (1899). 44. Some authorities employ the term to refer to the original string of cases decided by the Supreme Court in 1901, which mark the origin of the doctrine. For the most significant or pertinent to Puerto Rico, see Downes v. Bidwell, 182 U.S. 244 (1901); and De Lima v. Bidwell, 182 U.S. 1 (1901). Other cases decided between 1902 and 1922, which actually developed the doctrine of territorial incorporation and gave it unanimous acceptance by the Court are also frequently included in the term. For the most significant, see Balzac v. Porto Rico, 258 U.S. 298 (1922); Ocampo v. United States, 234 U.S. 91 (1914); Dowdell v. United States, 221 U.S. 325 (1911); Rassmussen v. United States, 197 U.S. 516 (1905); Dorr v. United States, 195 U.S. 138 (1904); and Hawaii v. Mankichi, 190 U.S. 197 (1903). Thorough expositions of the cases can be found in: Jaime B. Fuster, The Origins of the Doctrine of Territorial Incorporation and Its Implications Regarding the Power of the Commonwealth of Puerto Rico to Regulate Interstate Commerce, 43 REV.JUR. U.P.R. 259, 290–91 (1974); Raúl Serrano Geyls, The Territorial Status of Puerto Rico and Its Effect on the Political Future of the Island, 39 REV.JUR. U.I.P.R. 13, 14–15 (2004); JOSÉ TRÍAS MONGE,HISTORIA CONSTITUCIONAL DE PUERTO RICO 235–72 (1980); Carlos I. Gorrín Peralta, Historical Analysis of the Insular Cases: Colonial Constitutionalism Revisited, 56 REV.COL.ABO. P.R. 31 (1995); EFRÉN RIVERA RAMOS,THE LEGAL CONSTRUCTION OF IDENTITY:THE JUDICIAL AND SOCIAL LEGACY OF AMERICAN COLONIALISM IN PUERTO RICO 74–75 (2001); TORRUELLA, supra note 2, at 43–45. 242 Stetson Law Review [Vol. 46
Downes v. Bidwell,45 Justice Edward E. White articulated the first judicial formulation of the doctrine in a case originating in Puerto Rico:
[W]hile in an international sense [Puerto] Rico [is] not a foreign country, since it [is] subject to the sovereignty of and [is] owned by the United States, it [is] foreign to the United States in a domestic sense, because the island [has] not been incorporated into the United States, but [is] merely appurtenant thereto as a possession.46
The consequence of being an unincorporated territory, which is not part of the United States, is that the Constitution does not necessarily apply; but according to the terms of the Treaty of Paris, Congress could determine if a provision of the Constitution applies in a non-incorporated territory.47 Similarly, Congress may decide that a federal law will apply or will not apply in the territory. For example, the cabotage laws require that maritime commerce be conducted between points of the United States in ships owned by U.S. citizens navigating under the U.S. flag.48 Those laws have been made applicable to Puerto Rico.49 As a result, all of Puerto Rico’s imports are considerably more expensive than if they could be imported in
45. 182 U.S. 244 (1901). 46. Id. at 341–42 (White, J., concurring). 47. Id. at 279–80. Justice Henry B. Brown, announcing the conclusion and judgment of the court stated that “the Constitution is applicable to territories acquired by purchase or conquest, only when and so far as Congress shall so direct.” Id. The Court later reiterated the theory of congressional extension of constitutional provisions, stating that: Congress may make constitutional provisions applicable to territories in which they would not otherwise be controlling. . . . [B]ecause the limitation on the application of the Constitution in unincorporated territories is based in part on the need to preserve Congress’ ability to govern such possessions, and may be overruled by Congress, a legislative determination that a constitutional provision practically and beneficially may be implemented in a territory is entitled to great weight. Torres v. Puerto Rico, 442 U.S. 465, 470 (1979). Fortunately, the Court decided in Torres that Congress had seen it beneficial to extend to Puerto Rico the Fourth Amendment’s protection from unreasonable searches and seizures, not because it must apply, but out of the goodness of the Congressional heart. Id. at 470–71. 48. 46 U.S.C. § 55102 (2006). 49. See 46 U.S.C. § 55101 (declaring that the coastwise laws apply “to the United States, including the island territories and possessions of the United States” except American Samoa, the Northern Mariana Islands, and the Virgin Islands). See also 48 U.S.C. § 744 (making the coastwise laws applicable specifically to Puerto Rico). 2017] Past, Present, and Future of U.S. Territories 243 other ships.50 On the other hand, the supplemental security income, designed to ease the burden of the poor, which is close to half of the population,51 does not apply in Puerto Rico.52 Also, Puerto Rico municipalities and public corporations do not have access to bankruptcy proceedings under federal law because in 1984 Congress decided to exclude Puerto Rico from the application of that aspect of the Bankruptcy Code.53
III. THE RISE AND FALL OF A CONSTITUTIONAL MIRAGE
In 1950, Congress adopted legislation in the exercise of its plenary powers under the Territory Clause to allow for the creation of the so-called “Commonwealth of Puerto Rico,” in Spanish “Estado Libre Asociado,” which translates literally as “Free Associated State.”54 After half a century under the sovereignty of the United States, Public Law 600 authorized the people of Puerto Rico to adopt a constitution for their local government.55 The law was adopted “in the nature of a compact” since the people were asked to vote for or against the terms of the
50. See Anne O. Krueger, Ranjit Teja & Andrew Wolfe, Puerto Rico—A Way Forward, VALUE WALK 18 (June 29, 2015), http://www.valuewalk.com/wp-content/uploads/2015/06/ 269934143-Krueger-et-al-Report-IMF-former-Economists-on-Puerto-Rico.pdf. Exempting Puerto Rico from the U.S. Jones Act could significantly reduce transport costs and open up new sectors for future growth. In no mainland state does the Jones Act have so profound an effect on the cost structure as in Puerto Rico. Furthermore, there are precedents for exempting islands, notably the U.S. Virgin Islands. Id. 51. According to the U.S. Census Bureau Puerto Rico Community Survey 45 percent of the population was under the poverty level in 2013. Alemayehu Bishaw & Kayla Fontenot, American Community Survey Briefs, U.S. CENSUS BUREAU (Sept. 2014), http://www.census .gov/content/dam/Census/library/publications/2014/acs/acsbr13-01.pdf. 52. The exclusion of Puerto Rico from the application of SSI, 42 U.S.C. § 1382c(e) (1988), was validated by the Supreme Court in Califano v. Gautier Torres, 435 U.S. 1, 2 (1978). 53. 11 U.S.C. § 1101(52) (2012). 54. Resolution 22 of the Constitutional Convention of Puerto Rico (Feb. 4, 1952), reprinted in DOCUMENTS ON THE CONSTITUTIONAL RELATIONSHIP OF PUERTO RICO AND THE UNITED STATES 191–92 (Marcos Ramirez Lavandero ed., 3d ed. 1988) (stating the name shall be “Estado Libre Asociado” in Spanish and “Commonwealth” in English). The “translation” adopted by the Convention has been characterized as convoluted and confused (galimatías) by the late José Trías Monge, former delegate to the Convention, former Secretary of Justice of the Commonwealth government, and former Chief Justice of the Puerto Rico Supreme Court. TRÍAS MONGE, supra note 44, at 266. 55. 48 U.S.C. § 731 (2015) (enacted under Act of July 3, 1950, Pub. L. No. 81-600, 64 Stat. 319 (1950)). 244 Stetson Law Review [Vol. 46 law before it could become effective.56 After the constitution was drafted and ratified by special referendum, it had to be approved by the president and by Congress, which conditioned the approval on the modification of several provisions of the proposed text.57 A week later, on July 10, 1952, the Constitutional Convention reconvened to adopt Resolution 34, which accepted the conditions imposed by Congress.58 The new constitution entered into force on July 25, 1952, on the anniversary of the invasion of Puerto Rico by U.S. forces in 1898.59 The same government elected under the Organic Act of 1917 continued in place. On November 4, 1952, more than three months after the Proclamation, the first general election was held under the new constitution.60 Simultaneously, the modifications required by Congress to the constitution already in force were submitted to the electorate, which formally accepted what was, by then, a fait accompli. The legislative history of the 1950 law shows that it sought the consent of the people to the existing territorial regime.61 The
56. Id. 57. Act of July 3, 1952, Pub. L. No. 82-447, 66 Stat. 327 (1952). 58. Resolution 34 of the Puerto Rico Constitutional Convention (July 10, 1952), reprinted in DOCUMENTS ON THE CONSTITUTIONAL RELATIONSHIP OF PUERTO RICO AND THE UNITED STATES, supra note 54, at 222–23. “To accept, in [sic] behalf of the people of Puerto Rico, the conditions of approval of the Constitution of the Commonwealth of Puerto Rico proposed by the Eighty-second Congress of the United States through Public Law 447 approved July 3, 1952.” Id; see also TORRUELLA, supra note 2, at 158. 59. The 1952 Puerto Rico Constitution: A New “Commonwealth” in Name Only, PUERTO RICO REPORT (Jan. 16, 2013), http://www.puertoricoreport.com/the-1952-puerto- rico-constitution-a-new-commonwealth-in-name-only/#.V9Lrl5grLIU. 60. Jesús G. Román, Comment, Does International Law Govern Puerto Rico’s 1993 Plebiscite?, 8 BERKELEY LA RAZA L.J. 98, 110 (1995). 61. RAUL SERRANO GEYLS,DERECHO CONSTITUCIONAL DE ESTADOS UNIDOS Y PUERTO RICO 488 (Colegio de Abogados de Puerto Rico 1986). In his testimony before Congress, then-governor of Puerto Rico Luis Muñoz Marín said, “[I]f the people of Puerto Rico should go crazy, Congress can always get around and legislate again.” Id. Then Resident Commissioner Antonio Fernós Isern added: “[T]he authority of the Government of the United States, of the Congress, to legislate in case of need, would always be there.” Id. Later on, he reiterated that the bill “would not change the status of the island of Puerto Rico relative to the United States. . . . It would not alter the powers of sovereignty acquired by the United States over Puerto Rico under the terms of the Treaty of Paris.” Id. On the House floor, during the debate of the measure, Fernós stated, “[T]he present exercise of United States authority over all matters of a Federal nature, would continue undisturbed.” Id. A report submitted by Oscar Chapman, Secretary of the Interior, stated that “[t]he bill under consideration would not change Puerto Rico’s political, social and economic relationship to the United States.” Id. According to the State Department report submitted to Congress on this legislation, “[T]he Department of State believes it to be of the greatest importance that the Puerto Rican people be authorized to frame their own constitution . . . in order that formal consent of Puerto Ricans may be given to their present relationship to the United States.” Id. The Senate report that recommended 2017] Past, Present, and Future of U.S. Territories 245
United States had to respond to international pressure at the United Nations, which required annual reports on steps taken to decolonize, under the obligations imposed by the U.N. Charter.62 In 1953, the United States obtained a General Assembly Resolution exempting compliance with the obligation to report annually.63 During the couple of decades after 1952, both the Puerto Rican and U.S. governments propounded the idea that the constitutional relation had changed and Puerto Rico had ceased to be a territory of the United States.64 Some judicial decisions followed suit, using terms such as “a unique relationship”65 “that has no parallel in our history”66 and that “Puerto Rico is to be deemed ‘sovereign.’”67 However, between 1975 and 1980, the specter of territoriality reemerged in several decisions of the Supreme Court. Despite the changes resulting from the adoption of the Constitution of the Commonwealth of Puerto Rico, the relation itself seemed to have minimally changed. Jurisdiction of federal courts in Puerto Rico was not in any way altered in 1952 and laws which were previously applicable to the territory were to be applied just as before.68 The Constitution of the United States does not apply ex proprio vigore in Puerto Rico, just as it had not previously applied since the Insular Cases. For instance, the protection from unreasonable searches and seizures must be respected in Puerto Rico not because it is mandated by the Constitution, but because Congress thought it would be
approval stated that the bill was “designed to complete the full measure of local self- government in the island by enabling the 2 1/4 million American citizens there to express their will and to create their own territorial government. . . . The measure would not change Puerto Rico’s fundamental political, social and economic relationship to the United States.” Id. 62. Resolutions Adopted on the Reports of the Fourth Committee, GA Res. 748 (VIII) (1953), U.S. GAOR, 8th Sess., Supp. No. 17, at 25, U.N. Doc. A/2630 (Nov. 27, 1953). 63. Id. 64. See T. Alexander Aleinikoff, Puerto Rico and the Constitution: Conundrums and Prospects, 11 CONST.COMMENT. 15, 19, n.16 (1995) (citing United States v. Quiñones, 758 F.2d 40, 42 (1st Cir. 1985) (stating that “in 1952, Puerto Rico ceased being a territory of the United States[,] . . . Congress cannot amend the Puerto Rico Constitution unilaterally, and the government of Puerto Rico is no longer a federal government agency exercising delegated power”). 65. Examining Bd. of Eng’rs, Architects & Surveyors v. Flores de Otero, 426 U.S. 572, 573 (1976). 66. Id. at 596. 67. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 673 (1974) (citation omitted). 68. Flores de Otero, 426 U.S. at 572. 246 Stetson Law Review [Vol. 46
“beneficial” to extend the protection to the unincorporated territory.69 Finally, the Supreme Court decided,
Congress, which is empowered under the Territory Clause of the Constitution, U.S. Const. Art. IV, § 3, cl. 2, to “make all needful Rules and Regulations respecting the Territory . . . belonging to the United States,” may treat Puerto Rico differently from States so long as there is a rational basis for its actions.70
The idea that the relation had changed constitutionally through a “compact” between the people of Puerto Rico and the U.S. Congress was a house of cards that had been blown away, especially in the past decade. Several generations were brought up with the idea that there was a bilateral compact that could not be modified unilaterally; after all, Law 600 was “adopted in the nature of a compact.”71 In his posthumously published memoirs, the late José Trías Monge—one of the legal artificers of the process, member of the Constitutional Convention, former Secretary of Justice, and former Chief Justice of the Puerto Rico Supreme Court—explains that the phrase was an intentionally ambiguous text.72 While it would be possible to convince the people of Puerto Rico of an imaginary compact, it could also be argued before Congress that the legislation did not really entail a mutually binding agreement that limited the exercise of plenary powers of future congresses over Puerto Rico. It had a form similar to a compact, but without the substance.73 More importantly, three reports issued by a “White House Task Force on Puerto Rico’s Status” have indicated that the
69. Torres v. Puerto Rico, 442 U.S. 465, 470 (1979). 70. Harris v. Rosario, 446 U.S. 651, 651–52 (1980). 71. 48 U.S.C. § 731(b) (2012). 72. JOSÉ TRÍAS MONGE,CÓMO FUE:MEMORIAS ch. 7 (2005). 73. Id. at 144. With regard to the compact, [then Resident Commissioner Antonio] Fernós had been one of the most vocal defenders of the idea in 1947 and 1948, but then tenaciously opposed any explicit reference to the idea in the bill to be introduced in Congress. Id. In his judgment, the existence of a compact could be deduced from the process to be followed; its express mention would endanger the legislation. Id. This brought about a meeting in Washington between Fernós, [Abe] Fortas and the author [Trías Monge]. Id. It was there that, at the suggestion of Fortas, it was agreed in compromise, to say only, in ambiguous form, that the law would be adopted “in the nature of a compact.” Id. (author’s translation). 2017] Past, Present, and Future of U.S. Territories 247 statements made before the United Nations in 1953 had no legal import.74 Puerto Rico is an unincorporated territory; the plenary powers of Congress are such that it may repeal any law granting powers of self-government to the territory, and even cede Puerto Rico to another nation.75 As recently as December 2015, in the case of Puerto Rico v. Sánchez Valle,76 the Solicitor General of the United States argued, in an amicus curiae brief presented to the Supreme Court, that Puerto Rico is an unincorporated territory and lacks any sovereignty whatsoever.77 An assistant solicitor general reiterated this in oral argument before the Court.78 The Puerto Rico Supreme Court had determined that the protection against double jeopardy may be invoked in Puerto Rico courts by a defendant who has been previously processed by the federal authorities for the same crime.79 If the same criminal prosecution is initiated in a state court—or in an Indian court—double jeopardy cannot be invoked because it applies only to a second prosecution by the same sovereign government.80 Since Puerto Rico is still an unincorporated territory, it lacks sovereignty and thus may not prosecute the defendant for the same offense.81 The United States argued that the Supreme Court of Puerto Rico was correct; Puerto Rico has no sovereignty whatsoever.82 On questions posed by the justices, the attorney for the United States
74. President’s Task Force on Puerto Rico’s Status, Reports by the President’s Task Force on Puerto Rico’s Status, 17–18 (White House, 2011); President’s Task Force on Puerto Rico’s Status, Reports by the President’s Task Force on Puerto Rico’s Status, 5–6 (White House, 2007); President’s Task Force on Puerto Rico’s Status, Reports by the President’s Task Force on Puerto Rico’s Status, 7 (White House, 2005). 75. President’s Task Force on Puerto Rico’s Status, Reports by the President’s Task Force on Puerto Rico’s Status, 6 (White House, 2005, 2007, 2011). 76. 136 S. Ct. 1863 (2016). 77. Brief for the United States as Amicus Curiae Supporting Respondents at 34, Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). 78. Transcript of Oral Argument at 44–58, Commonwealth of Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). 79. Puerto Rico v. Sánchez Valle, 192 D.P.R. 594, 598 (2015). 80. E.g., Abbate v. United States, 359 U.S. 187, 195–96 (1959); Bartkus v. Illinois, 359 U.S. 121, 138–39 (1959); United States v. Lanza, 260 U.S. 377, 377 (1922). The same principle applies to subsequent prosecutions in the context of an Indian nation. E.g., United States v. Wheeler, 435 U.S. 313, 332 (1978). However, because territories have no separate sovereignty, a territorial government may not prosecute if the federal government already has, and vice versa. E.g., Puerto Rico v. Shell Co., 302 U.S. 253, 271 (1937); Grafton v. United States, 206 U.S. 333, 355 (1907). 81. Sánchez Valle, 192 D.P.R. at 598. 82. Brief for the United States as Amicus Curiae Supporting Respondents, Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). 248 Stetson Law Review [Vol. 46 went as far as to say that Congress may revise the present arrangement under Public Law 600, and do away with the powers under the Commonwealth Constitution.83 On June 9, 2016, the U.S. Supreme Court decided the Sánchez Valle case, affirming the decision of the Puerto Rico Supreme Court in a 6–2 vote.84 It adopted the theory advanced by the Justice Department. Puerto Rico is an unincorporated territory of the United States, and all authority exercised by the Commonwealth government, including the prosecution of criminal offenses, derives from congressional authority as the ultimate source of power.85 Puerto Rico cannot prosecute a person previously prosecuted by the federal government, and vice versa.86 State governments and Indian tribes may do so because they are empowered by a sovereign people endowed with a separate source of power; however, the government of the territory of Puerto Rico is not.87 Its ultimate source of power, according to the Supreme Court, is not the people but the Congress of the United States.88 In the not-so-distant past, the current relation was touted as the best of two worlds.89 It was argued that Puerto Rico could maintain its cultural identity while benefitting from a close economic relationship with the United States.90 Now, it turns out that it is the worst of all worlds.91 After a couple of decades of important economic growth in the 1950s and 1960s, close to one- half of the Puerto Rican population is now under the poverty level and dependent on government aid.92 For seven decades, the per
83. Transcript of Oral Argument at 49–51, Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). 84. Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016). 85. Id. at 15. 86. Id. at 17–18. 87. Id. at 8–9. 88. Id. at 17. 89. See generally Ediberto Román, Empire Forgotten: The United States’s Colonization of Puerto Rico, 42 VILL. L. REV. 1119, 1139–42 (1997) (detailing the history of the relationship between Puerto Rico and the United States). 90. See generally id. at 1176 (attributing the longevity of the colonial relationship to “Puerto Rico’s social, political and economic dependence on the United States”). 91. See id. at 1210 (asserting, “[T]he United States-Puerto Rico relationship is one of domination and undue foreign political and economic influence”). 92. See Brian Chappatta, Puerto Rico Economy Worsens with Crisis, Most Anywhere You Look,BLOOMBERG POLITICS (April 25, 2016, 9:22 AM EDT), http://www.bloomberg .com/politics/articles/2016-04-25/puerto-rico-economy-worsens-with-crisis-most-anywhere- you-look (noting that “[a]bout 46.2 percent of Puerto Ricans live below the poverty line, compared with 14.8 percent in the U.S.”). 2017] Past, Present, and Future of U.S. Territories 249 capita income has been one-third of the U.S. per capita income93 and approximately one-half of the poorest state.94 Official unemployment hovers between 11 and 14 percent.95 During the past decade, Puerto Rico has had a negative annual rate of economic growth, the lowest in the whole hemisphere, and one of the lowest in the world.96 Taxes have soared.97 The government is bankrupt, government obligations have been degraded to junk, and there is no longer any access to credit markets.98 As a result,
93. By the end of fiscal year 2013, GNP per capita in the United States was $53,720, while per capita GNP of Puerto Rico was $19,310. World Bank, GNI Per Capita, UNDATA, http://data.un.org/Data.aspx?q=gni+per+capita+datamart%5bWDI%5d&d=WDI&f=Indica tor_Code%3aNY.GNP.PCAP.CD%3bCountry_Code%3aPRI%2cUSA%E2%80%A6 (last visited Feb. 28, 2017). These figures suggest that per capita GNP in the United States is still almost three times that of Puerto Rico (2.8), a gap that has prevailed since the 1960s. Id. 94. Mississippi still ranks at the bottom among the states. See U.S. Dep’t of Commerce, Mississippi,BUREAU OF ECON.ANALYSIS (Sept. 28, 2016), http://bea.gov/ regional/bearfacts/pdf.cfm?fips=28000&areatype=STATE&geotype=3. However, official data for 2015 raised its per capita GNP to $34,771, almost 1.8 times that of Puerto Rico. Id. (noting that Mississippi’s 2015 per capita personal income ranked fiftieth among the states). 95. According to the Puerto Rico Planning Board Economic Reports to the Governor during the past few years, the unemployment rate in Puerto Rico has fluctuated between 13 percent and 14 percent. Commonwealth of Puerto Rico Office of the Governor Planning Board, Statistical Appendix of the Economic Report to the Governor and to the Legislative Assembly,GOV’T DEV.BANK FOR PUERTO RICO (2015), http://www.gdb-pur.com/economy/ documents/ApendiceEstadistico2015.pdf (showing that the Puerto Rico unemployment rate ranging from 14 percent in 2013 to 13 percent in 2015). Even worse is the extremely low labor-force participation of about 40 percent, considered among the lowest in the world. Countries with Lowest Labor Force Participation Rate–Bottom 5 World, IECONOMICS (2016), http://ieconomics.com/lowest-5-labor-force-participation-rate. 96. Since fiscal year 2006, the economy of Puerto Rico has registered negative growth of its real GNP. Commonwealth of Puerto Rico Office of the Governor Planning Board, supra note 95, at A-6. It has shrunk almost 14 percent at an average annual rate of decrease of 1.6 percent. Id. In other words, a ten-year long recession has resulted in a current productive capacity, which is barely 86 percent of what it was ten years ago. Id. 97. Since November 2006, the government has tried to reduce its budget deficit with taxes. See Commonwealth of Puerto Rico, General Concepts of the Sales and Use Tax, DEP’T OF THE TREASURY (Nov. 10, 2006), http://www.hacienda.gobierno.pr/downloads/ pdf/publicaciones/ publicacion/PUBLICATION%2006-05-1.pdf (explaining how the new tax scheme will operate). A duty of 5 percent on all merchandise imported into Puerto Rico became a sales tax of 7 percent on most consumer products and services rendered, which recently increased to an 11.5 percent sales tax. See Chappatta, supra note 92 (describing the recent tax hike as a way for Puerto Rico to “help pay its bills”). Despite these impositions, the Puerto Rico Department of the Treasury forecasted another budget deficit by the end of fiscal year 2016. Robert Slavin, Puerto Rico Senate Passes Balanced Budget, BOND BUYER (June 25, 2015), http://www.bondbuyer.com/news/regionalnews/ puerto-rico- senate-passes-balanced-budget-1077399-1.html. 98. See D. Andrew Austin, Puerto Rico’s Current Fiscal Challenges,CONG.RES. SERVICE 4 (June 3, 2016), https://www.fas.org/sgp/crs/row/R44095.pdf (attributing the loss of credit market access to weakened investor confidence). 250 Stetson Law Review [Vol. 46 the government has announced that it cannot pay the public debt.99 Needless to say, the social problems associated with the economic crisis have multiplied in the areas of education, health, crime, drug addiction, social services, and government corruption.100 The territory is on the brink of a humanitarian debacle. The current fiscal crisis regarding the public debt of Puerto Rico prompted several legislative proposals. A bill was introduced in Congress to amend the Bankruptcy Code so that Chapter 9 would once against apply to Puerto Rico in order to facilitate access by municipalities and public corporations to reorganization proceedings to restructure their debts.101 Since the bill did not gather support, the Puerto Rico legislature passed a law to fill the gap left in 1984 by the exclusion of Puerto Rico from the application of chapter 9.102 As soon as the law was adopted, potentially affected creditors challenged it in the U.S. District Court for the District of Puerto Rico.103 Both the District Court
99. Id. at 6. At the beginning of 2013, the main investors’ services within the U.S. bond market anticipated an inevitable downgrading of local government obligations and public corporation bonds. Since 2014, a dramatic collapse has occurred in the market value of all Puerto Rican bonds. Id. at 4. This “junk bond” situation has shrunk the possibilities for external financing, not only now but in the foreseeable future. See John Waggoner, Puerto Rico’s Debt Downgraded to Junk, USA TODAY (Feb. 5, 2014, 1:06 PM EST), http://www.usatoday.com/story/money/markets/2014/02/05/puerto-rico-downgraded- to-junk/5222499/ (noting that “Standard and Poor’s lowered the debt of Puerto Rico to junk status Tuesday, making it more difficult for the cash-strapped island to raise money”). For the first time in Puerto Rico’s history, in January 2016, the central government announced a default on its current debt obligations; almost four-hundred million dollars were not paid in May of 2016. See Michelle Kaske, Jonathan Levin & Brian Chappatta, Puerto Rico Warns of More Defaults After Missing May Payment,BLOOMBERG (May 2, 2016, 2:18 PM CDT), http://www.bloomberg.com/news/articles/2016-05-01/puerto-rico-will- default-on-government-development-bank-debt (evaluating the country’s worsening financial position). An additional default on around half of Puerto Rico’s two billion dollar debt obligation occurred in July of 2016. Heather Gillers & Nick Timiraos, Puerto Rico Defaults on Constitutionally Guaranteed Debt,WALL ST. J. (July 1, 2016, 6:42 PM EST), http://www.wsj.com/articles/puerto-rico-to-default-on-constitutionally-guaranteed-debt- 1467378242. 100. See Vann R. Newkirk II, Will Puerto Rico’s Debt Crisis Spark a Humanitarian Disaster?,ATLANTIC (May 13, 2016), http://www.theatlantic.com/politics/archive/2016/05/ puerto-rico-treasury-visit/482562/ (detailing the dire state of schools and hospitals in Puerto Rico). 101. Puerto Rico Chapter 9 Uniformity Act of 2015, H.R. 870, 114th Cong. (2015). 102. Puerto Rico Public Corporation Debt Enforcement and Recovery Act, P.R. 71 (2014). 103. Franklin Cal. Tax-Free Trust v. Commonwealth of Puerto Rico, 85 F. Supp. 3d 577 (D.P.R. 2015). 2017] Past, Present, and Future of U.S. Territories 251 and the Appeals Court for the First Circuit agreed that the law was preempted by a provision in the Federal Bankruptcy Code.104 Five days after the Sánchez Valle decision, the Supreme Court affirmed the lower courts’ decisions in Puerto Rico v. Franklin California Tax-Free Trust.105 States may have recourse to reorganization proceedings under the Bankruptcy Code in order to restructure their municipal debts,106 but the 1984 exclusion of Puerto Rico from the restructuring provisions of the Code preempts any legislation by the Puerto Rico Legislative Assembly.107 As a result, Puerto Rico has been left out in the cold. Congress exercised its plenary territorial powers to the detriment of Puerto Rico. The decision of the Supreme Court in 2016, which invalidates the exercise of legislative power of the territorial government, effectively strips Puerto Rico of any legal authority to face its economic crisis through partial restructuring of its public debt. After months of discussions, lobbying, and political negotiations, Congress finally passed legislation to handle Puerto Rico’s debt crisis.108 On June 30, 2016, the President signed Public Law 114–187,109 to be known by the artful title of “‘Puerto Rico Oversight, Management, and Economic Stabilization Act’ or ‘PROMESA.’”110 The law explicitly states that it was enacted pursuant to Article IV, Section 3 of the Constitution of the United States, which provides Congress the “power to dispose of and make all needful rules and regulations” for territories.111
104. Id.; Commonwealth of Puerto Rico v. Franklin Cal. Tax-Free Trust, 805 F.3d 322 (1st Cir. 2015). 105. 136 S. Ct. 1938 (2016). 106. 11 U.S.C. § 903(1). 107. See 11 U.S.C. § 101(52) (2012) (providing that Puerto Rico does not qualify as a “state” for purposes of qualifying as a debtor in the Bankruptcy Code). 108. See Government Affairs, Puerto Rico Rescue Bill Approved by Congress, Heads to Obama, NALC (June 30, 2016), https://www.nalc.org/government-affairs/legislative- updates/puerto-rico-rescue-bill-approved-by-congress-heads-to-obama (describing political concerns with the PROMESA bill); Mary Williams Walsh, Puerto Rico’s Debt Crisis Addressed in Bipartisan Bill, N.Y. TIMES (May 19, 2016), http://www.nytimes.com/2016/ 05/20/business/puerto-rico-debt-bankruptcy.html?_r=0 (stating that negotiations were ongoing since May). 109. 48 U.S.C. § 2101 (2016) et seq. 110. Id. Needless to say “PROMESA” means “promise” in Spanish. However, no one has still deciphered what it is that PROMESA promises. 111. 48 U.S.C. § 2121(b)(2). 252 Stetson Law Review [Vol. 46
The Act created a seven-member board, which has been designated by the President.112 Six of the members were proposed by the congressional leadership (four republicans and two democrats), and the President designated one member on his own initiative.113 An eighth ex officio member is the governor of Puerto Rico, or whomever he designates, but without voting rights.114 According to the law, the Oversight Board is an instrumentality of the Commonwealth of Puerto Rico, which will cover all its expenses, but it will not report to the government of the Commonwealth.115 Quite the contrary, according to the Act, the Board may require any instrumentality or dependency of the territorial government to abide by the fiscal plans which the Board will approve.116 It has the power to review, revise, and modify any law or decision of the territorial government, which is not in accordance with its fiscal plans.117 The Board has the authority to approve the annual budget of the territorial government.118 It must approve any issuance of new debt, or any modifications to the existing debt.119 It may revise retirement funds for public employees.120 Its members are immune to claims of liability for their actions.121 The Act provides a six-month stay of proceedings aimed at collecting public debt.122 The Board may negotiate with creditors to achieve voluntary restructuring of debt, and if negotiations fail, it may initiate proceedings before a federal court under rules similar to those of the Bankruptcy Code.123 As a byproduct of political negotiations during the congressional discussion of the proposed bills, PROMESA provides nominally for the creation of a congressional task force to look for avenues for “economic growth in Puerto Rico.”124 Its
112. Id. § 2121(e)(1)(A). 113. Id. § 2121(e)(2)(A)(i)–(vi). 114. Id. § 2121(e)(3). 115. Id. §§ 2101(c)(1)–(2), 2127(b). 116. Id. § 2121(d)(1)(D)–(E). 117. See id. § 2144(a)(5)–(6) (enabling the Board to take necessary actions to ensure the law will not adversely affect compliance with the Fiscal Plan). 118. Id. § 2142(a). 119. Id. § 2147. 120. Id. § 2145(a)(4). 121. Id. § 2125. 122. Id. § 2194(b)–(d). 123. Id. § 2124. 124. Id. § 2196. 2017] Past, Present, and Future of U.S. Territories 253 members are four congresspersons and four senators, but the task force will operate independently of the board, which has no assigned purpose to promote economic growth.125 In fact, PROMESA creates a board, comprised of seven people designated by the president and Congress, to oversee and control absolutely all government operations in the territory of Puerto Rico without the participation of the people of Puerto Rico.126 PROMESA seems to be the culmination of colonial government, to secure the interests of creditors.127 Finally, PROMESA contains a mealy-mouthed recognition of Puerto Rico’s right to determine its future political status.128 But it effectively denies the exercise of self-determination by the people of Puerto Rico.129
IV. INTERNATIONAL LAW OF HUMAN RIGHTS: SELF- DETERMINATION
While all of this is happening, a growing consensus has emerged in the international community over the course of the last seven decades regarding the right to self-determination of all peoples.130 The United Nations Charter recognizes this right.131 The Universal Declaration of Human Rights132 and several other resolutions of the General Assembly are evidence of the recognition of the right as a norm of international customary law.133 The two most important multilateral treaties on human
125. Id. § 2196(b). 126. See id. § 2121 (establishing the Financial Oversight and Management Board). 127. Caribbean Business, Puerto Rico Political Leaders Weigh in on PROMESA, CARIBBEAN BUS. (Mar. 26, 2016), http://caribbeanbusiness.com/sen-rosa-rejects-draft- republican-plan-for-puerto-rico-fiscal-crisis/. 128. See 48 U.S.C. § 2192 (stating “[n]othing in this chapter shall be interpreted to restrict Puerto Rico’s right to determine its future political status, including by conducting the plebiscite as authorized by Public Law 113–76”). 129. Vann R. Newkirk II, Puerto Rico’s Dream, Denied,ATLANTIC (June 14, 2016), http://www.theatlantic.com/politics/archive/2016/06/puerto-rico-guam-supreme-court- status/486887/. 130. See generally Román, supra note 89, at 1127–31 (outlining the twentieth century development of the right to self-determination in the United States). 131. U.N. Charter art. 1(2), June 26, 1945, 1 U.N.T.S. XVI (entered into force Oct. 24, 1945). 132. Universal Declaration of Human Rights art. 15, Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810. 133. See Declaration on the Granting of Independence to Colonial Countries and Peoples, Dec. 14, 1960, G.A. Res. 1514 (XV), U.N. Doc. A/4684 (recognizing the right of all peoples to self-determination and independence); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the 254 Stetson Law Review [Vol. 46 rights, both civil and political as well as economic, social and cultural rights, have recognized the right to self-determination of all peoples and the affirmative obligation of state parties to promote the realization of the right.134 The International Court of Justice has recognized the right as a binding legal norm.135 The United States is bound by the right to self- determination. It is a party to the U.N. Charter136 and subject to customary international law, according to decisions of the Supreme Court.137 The United States signed and ratified the International Covenant on Civil and Political Rights.138
Information Called for Under Article 73e of the Charter, Dec. 15, 1960, G.A. Res. 1541 (XV), U.N. Doc. A/4684 (identifying substantive non colonial options acceptable under international law); Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, Oct. 24, 1970, G.A. Res. 2625 (XXV), annex, U.N. Doc. A/8028 (reiterating principles previously recognized, including self-determination). 134. International Covenant on Civil and Political Rights art. 1, Dec. 16, 1966, 999 UNTS 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights art. 1, Dec. 16, 1966, 993 UNTS 3 (entered into force Jan. 3, 1976) [hereinafter ICESC]. 135. Case Concerning East Timor (Portugal v. Australia), 1995 I.C.J. Reports 90, 102 (June 30, 1995); Western Sahara, 1975 I.C.J. Reports 12, 31–33 (Oct. 16, 1975); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. Reports 16, 31–32 (June 21, 1971). 136. See U.N. Charter, supra note 131, at 6, art. 23 (designating the United States as a permanent member of the United Nations Security Council). 137. In The Paquete Habana, 175 U.S. 677 (1900), the Supreme Court stated as follows: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations and, as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. Id. at 700. 138. ICCPR, supra note 134. The Covenant was signed by President Jimmy Carter, and the Senate approved its ratification in 1992. Id. It entered into force for the United States on September 8, 1992. Id. Senate approval was accompanied by a “declaration” to the effect that the substantive provisions of the Covenant are not self-executing without implementing legislation. See International Covenant on Civil and Political Rights, 138 CONG. REC. S4781, 4784 (daily ed. April 2, 1992). For a discussion of whether the Covenant has the force of law and whether it may or may not be invoked in a court of law of the United States in view of the doctrine of non-self-executing treaties, see Gorrín Peralta, supra note 29, at 202–05. 2017] Past, Present, and Future of U.S. Territories 255
Therefore, the right to self-determination is part of the “Law of the Land” according to the Supremacy Clause of the Constitution, which ordains “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”139 And yet, the United States still maintains several territories under the plenary powers of Congress under the Territory Clause, even though the people of the territories have not been allowed to exercise their right to self-determination, and in the case of Puerto Rico, the people have rejected the territorial relation through the ballot.140 The constitutional law that evolved during the first half of the twentieth century is now in conflict with the international obligations that the United States has assumed during the second half of the century. The time has come for the contradiction to be resolved. The constitutional construct of territorial non-incorporation—which constitutes the legal standard for the territorial policy of the United States—was born in legal academia, namely Harvard and Yale. Those two institutions have decided, over the course of the last two decades, to contribute to the resolution of the contradiction, and both Yale Law School in 1998 and Harvard Law School in 2014 have held conferences and published books that have indicted the doctrine of territorial non-incorporation.141 All other universities and law schools ought to follow suit. What should be done? First, Congress should “dispose of” the territories as contemplated in the Territory Clause itself.142 Second, it should adopt legislation to comply with its international obligation to facilitate the process of self- determination of all the territories. Third, Congress must decide which substantive alternatives—that are both non-territorial and non-colonial—shall be compatible with the interests of the United States.
139. U.S. CONST. art. VI, cl. 2. 140. See Morales, supra note 8 (analyzing the results of a 2012 plebiscite ballot that indicated 54 percent of voters were unsatisfied with Puerto Rico’s current territorial status). 141. FOREIGN IN A DOMESTIC SENSE:PUERTO RICO,AMERICAN EXPANSION, AND THE CONSTITUTION 121, 122 (Christina Duffy Burnett & Burke Marshall eds., 2001); RECONSIDERING THE INSULAR CASES:THE PAST AND FUTURE OF THE AMERICAN EMPIRE 183, 186 (Gerald L. Neuman & Tomiko Brown-Nagin eds., 2015). 142. U.S. CONST. art. IV, § 3. 256 Stetson Law Review [Vol. 46
The options cannot include the territorial regime, which is the cause of the problems faced by the territories. One of the options could be admission of territories as new states. Congress must decide if it is willing to offer that option to any of the territories, under the terms and conditions employed in the past for the admission of thirty-seven new states.143 Another option could be a treaty of free association, similar to those already existing to regulate relations between the United States and several island communities of the Pacific.144 The third option, of course, is the recognition of full independence and the establishment of a new relation based on a treaty of friendship and cooperation. That was the route taken by the United States and the Philippines forty-eight years after acquisition of the islands in 1898.145 At least in the case of Puerto Rico, independence would open the way for economic development and productive relations with other nations including the United States, which would benefit much more from a free Puerto Rico than from a bankrupt colony.146 Legal academia has much to contribute to the development of these options and processes, to facilitate transition to new relations of respect and dignity. It has been said that
143. In making that decision, Congress would necessarily address important issues. In the case of Puerto Rico, the most fundamental question would be whether American federalism, forged by civil war around the principle of indivisibility, is compatible with incorporating a sociologically distinct people, a Latin American nation, which under international law would retain, as part of its right to self-determination, the right to legitimate secession. See generally Rubén Berríos Martínez, Self-Determination and Independence: The Case of Puerto Rico, 67 AM. SOC’Y INT’L L. PROC. 11, 15–16 (1973) (concluding that independence is the only alternative); MALCOLM N. SHAW, INTERNATIONAL LAW 215–18 (Cambridge Univ. Press 1997) (discussing general principles of self-determination and the criteria of statehood, as that term is used in international law, not in U.S. constitutional law). 144. According to U.N. resolutions, especially Resolution 1541 (XV) of 1960, the options to achieve a “full measure of self-government” are full independence, “[f]ree association with an independent [s]tate,” or “[i]ntegration with an independent [s]tate” already in existence. Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter of the United Nations, supra note 133. The second option of free association is recognized if it is “done freely and on the basis of absolute equality.” Manuel Rodríguez-Orellana, In Contemplation of Micronesia: The Prospects for the Decolonization of Puerto Rico Under International Law, 18 U. MIAMI INTER-AM. L. REV. 457, 470–71 (1987). 145. Treaty of General Relations Between the United States of America and the Republic of the Philippines, U.S.-Phil., July 4, 1946, 7 U.N.T.S. 3. 146. For a synthesis of the advantages of independence for Puerto Rico, see Rubén Berríos Martínez, Puerto Rico’s Decolonization, 76 FOREIGN AFF. 100, 108–12 (1997). 2017] Past, Present, and Future of U.S. Territories 257
“[c]olonialism denigrates the colonized, but it also demeans the colonizer.”147 The time has come to turn the page of history.
147. Id. at 112.
EQUALLY AMERICAN: AMENDING THE CONSTITUTION TO PROVIDE VOTING RIGHTS IN U.S. TERRITORIES AND THE DISTRICT OF COLUMBIA
Neil Weare*
I. INTRODUCTION
Today, nearly five million Americans are denied full enjoyment of the right to vote simply because they live in a Territory of the United States or the District of Columbia (“the District”).1 The constitutional status of Americans who live in these “non-state” areas strains against the vision of our nation’s Founders that ours would be a government that “deriv[es] [its] just powers from the consent of the governed.”2 Based solely on place of residence, Americans who live in the District or the Territories are denied meaningful representation in either the House or the Senate, even as Congress holds more power over these Americans than those who live in the States.3 Moreover, Americans who reside in the Territories cannot vote for the President during the general election, even as they fully
* © 2017, Neil Weare. All rights reserved. The Author grew up in Guam and is President and Founder of We the People Project, a nonprofit that advocates for equal rights and representation for the nearly five million Americans living in U.S. Territories and the District of Columbia. He is a graduate of Yale Law School and Lewis & Clark College. 1. The population of the District of Columbia is 601,723, Puerto Rico 3,725,789, Guam 159,358, the U.S. Virgin Islands 106,405, the Northern Mariana Islands 53,883, and American Samoa 55,519, for a total population of 4,702,677. United States Summary: 2010 Population and Housing Units Count, U.S. CENSUS BUREAU (Sept. 2012), available at https://www.census.gov/prod/cen2010/cph-2-1.pdf. 2. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776). 3. Congress has plenary power over the Territories and the District, so residents of these areas lack the protections of federalism that serve as a political buffer between the national government and residents of the States. See U.S. CONST. art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”); U.S. CONST. art. I, § 8, cl. 17 (“Congress shall have Power . . . [t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States . . . .”). 260 Stetson Law Review [Vol. 46 participate in the presidential primaries.4 As President Barack Obama explained in his 2014 State of the Union Address, “[c]itizenship means standing up for everyone’s right to vote.”5 This must also mean standing up for the right to vote for the millions of U.S. citizens living in the Territories and the District—more than ninety percent of whom are racial or ethnic minorities.6 During his campaign, President Donald Trump expressed support for expanded voting rights in the Territories and the District.7 And both the 2016 Democratic and Republican Party platforms recognized the need to address issues of political participation in these areas.8 Thus, there is a growing political consensus that where you live should not impact whether you
4. William Gallo, US Presidential Election Ends at Conventions for Territorial Citizens, VOANEWS (July 28, 2016, 12:05 PM), http://www.voanews.com/content/us- presidential-elections-voting-rights/3438567.html. 5. President Barack Obama, State of the Union Address at 43:27 (Jan. 28, 2014), video recording available at https://www.whitehouse.gov/the-press-office/2014/01/28/ president-barack-obamas-state-union-address. 6. Over sixty-five percent of the District of Columbia’s total population is non-white or Hispanic. Quick Facts District of Columbia, U.S. CENSUS BUREAU, http://www.census .gov/quickfacts/table/PST045215/11 (last visited Feb. 28, 2017). In Puerto Rico, this figure is over ninety-nine percent, primarily Hispanic. Id. at Quick Facts Puerto Rico. In Guam it is ninety-three percent, primarily Pacific Islander and Asian. Guam Demographics Profile 2016,INDEXMUNDI, http://www.indexmundi.com/guam/demographics_profile.html (last updated Oct. 8, 2016). In the Virgin Islands it is eighty-four percent, primarily Afro- Caribbean. Virgin Islands Demographics Profile 2016,INDEXMUNDI, http://www .indexmundi.com/virgin_islands/ demographics_profile.html (last updated Oct. 8, 2016). In the Northern Marianas it is ninety-eight percent, primarily Pacific Islander and Asian. Northern Mariana Islands Demographics Profile 2016,INDEXMUNDI, http://www .indexmundi.com/northern_mariana_islands/demographics_profile.html (last updated Oct. 8, 2016). In American Samoa it is ninety-eight percent, primarily Pacific Islander. America Samoa Demographics Profile 2016,INDEXMUNDI, http://www.indexmundi .com/american_samoa/demographics_profile.html (last updated Oct. 8, 2016). The total non-white or Hispanic population of America’s non-state areas is over 4.3 million. 7. Donald Trump, I Won’t Ignore Territories as President,PACIFIC DAILY NEWS (Mar. 9, 2016, 11:48 PM), available at http://www.guampdn.com/story/opinion/2016/03/09/trump- wont-ignore-territories/81516134/; Editorial Board, Trump Could Be the President to Give D.C. Voting Rights,WASH.POST (Nov. 11, 2016), available at https://www.washingtonpost .com/opinions/trump-could-be-the-president-to-give-dc-voting-rights/2016/11/11/33e37fe8- a791-11e6-8fc0-7be8f848c492_story.html?utm_term=.f923bd7c44dd. 8. 2016 Democratic Party Platform,DEMOCRATIC PLATFORM COMMITTEE 24 (July 21, 2016), available at http://www.presidency.ucsb.edu/papers_pdf/117717.pdf (“All Americans should be able to vote for the people who make their laws, just as they should be treated equally. And all American citizens, no matter where they reside, should have the right to vote for the President of the United States.”); Republican Platform 2016,COMMITTEE ON ARRANGEMENTS FOR THE 2016 REPUBLICAN NAT’L CONVENTION 30, available at https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL[1]-ben_1468872234 .pdf (last visited Feb. 28, 2017) (“We welcome their greater participation in all aspects of the political process and affirm their right to seek the full extension of the Constitution with all the rights and responsibilities that entails.”). 2017] Equally American 261 have the right to vote for President or have voting representation in Congress. As unbalanced as the relationship between the national government and Americans living in non-state areas is, it is admittedly part of the constitutional structure established at our nation’s founding. But the circumstances in non-state areas today are dramatically changed. The Northwest Territory and other early territories were quite different from the Territories today. Whereas the early territories were viewed as inchoate states on the path to full statehood within the Union, since the controversial Insular Cases were decided in the early 1900s, this has not been the assumption for overseas Territories.9 The result is that the democratic deficit that was but a temporary condition for territories prior to the Insular Cases has now resulted in a quasi-permanent colonial status that is the antithesis of America’s democratic and constitutional principles. With respect to the District, in the late eighteenth century it would have been hard to imagine the swamplands of the newly created capital becoming the major metropolis it is today.10 But even then, early discussions concerning representation in the District recognized that congressional representation may be warranted were the city to grow in size.11 The animating principle of the American Revolution was the rejection of the British idea that Parliament had the authority to unilaterally govern the colonies, without the consent of the people and without any fundamental limitations on government power.12 Among the major grievances listed in the 1776 Declaration of
9. See generally, e.g.,BARTHOLOMEW H. SPARROW,THE INSULAR CASES AND THE EMERGENCE OF THE AMERICAN EMPIRE 14–31 (2006) (examining the shift from westward continental territorial expansion to overseas territorial expansion); Juan R. Torruella, Ruling America’s Colonies: The Insular Cases, 32 YALE L. & POL’Y REV. 57 (2013) (discussing how the Northwest Territories became integrated as states). 10. The District of Columbia is the twenty-fourth most populous city in the United States. Interactive Population Map, U.S. CENSUS BUREAU (2010), available at http://www.census.gov/2010census/popmap/. 11. See Jonathan Turley, Too Clever by Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress, 76 GEO.WASH. L. REV. 305, 341 (2008) (quoting Maryland Representative John Dennis on the possibility of a constitutional amendment as the District grew, “if it should be necessary [that residents have a representative], the Constitution might be so altered . . . when their numbers should become sufficient” (internal quotation marks omitted)). 12. See, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1430 (1987) (noting this “war of ideas” ignited not only a military struggle between the colonists and the British, but also the “American vision of sovereignty and federalism”). 262 Stetson Law Review [Vol. 46
Independence was the fact that the British Parliament was “invested with power to legislate for [the American colonies] in all cases whatsoever” without representation or the consent of the governed—a relationship the Declaration characterized as “the establishment of an absolute Tyranny.”13 Yet, because the United States has failed to provide meaningful congressional representation to the Americans who live in the Territories and the District, the relationship of non-state areas to Congress today is largely analogous to the relationship between the American colonies and the British Parliament in 1776. Following ratification of the Constitution, it was immediately apparent to at least some observers that something needed to be done to address the disjunction between America’s founding principles and the status of Americans residing in non-state areas. Writing under the pseudonym Epaminondas, Augustus Woodward, a protégé of Thomas Jefferson, wrote in 1801 that the denial of representation to Americans living in the nation’s capital “is contrary to the genius of our constitution[]” and “is violating an original principal in republicanism, to deny that all who are governed by laws ought to participate in the formation of them.”14 To right this wrong, Woodward proposed providing the District with one Senator, a number of Representatives in proportion to its population, and presidential electors equal to its number of Senators and Representatives.15 Woodward recognized that diminished representation in the Senate was “proper” given that “a distinction exists in fact between the territory and a state.”16 He was confident that with future population changes “it would by no means appear inequitable to give [the District] half the weight of [the smaller states].”17 Woodward conceded that “[a]n arrangement of this kind cannot . . . be made by an ordinary act of Congress,” but rather “require[s] an amendment to the
13. THE DECLARATION OF INDEPENDENCE paras. 24 & 2 (U.S. 1776). 14. Augustus Brevoort Woodward, Considerations on the Government of the Territory of Columbia, at 5–6 (Paper No. II of 1801), available at http://www.equalrightsnow.org/ woodward. 15. Id. at 6; see also Eugene Boyd, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals,CONG.RES.SERVICE (Jan. 30, 2007), available at http://www.dcwatch.com/issues/voting070130.htm (discussing Woodward’s proposition to afford the District of Columbia representation in the Senate and House of Representatives). 16. Woodward, supra note 14, at 6. 17. Id. 2017] Equally American 263
Constitution.”18 He viewed such an amendment as necessary to preserve “the spirit of the Constitution,” for even though the District was constitutionally distinct from a state, “the people of the Territory of Columbia do not cease to be a part of the people of the United States,” and are therefore “still entitled to the enjoyment of the same rights with the rest of the people of the United States, and to have some participation in the administration of their general government.”19 Today, Woodward’s vision that the national government should provide meaningful representation for all “the people of the United States” has been partially realized through the Twenty-third Amendment, extending the right to vote for President to the residents of the District. Beyond this, more than 150 proposals have been introduced in Congress to extend voting representation to residents of the District through constitutional amendment.20 In 1978, one of these proposals, the District of Columbia Voting Rights Amendment, was approved on a bipartisan basis by two-thirds of both the House and Senate; however the sixteen ratifying states fell short of the thirty-eight needed.21 In the territorial context, a 1971 presidential task force called for the right to vote for President to be extended to Americans residing in the Territories,22 although there have been only limited legislative efforts to follow up on this recommendation.23 Recently, however, there has been increased national interest with Senator Elizabeth Warren taking a stand for territorial voting rights during a 2016 Senate hearing24 and
18. Id. 19. Id. at 5, 7. 20. Boyd, supra note 15. 21. Id. The amendment would have recognized the District as a state for purposes of electing members of the Senate and House of Representatives and presidential electors, and for ratifying amendments to the U.S. Constitution. Id. 22. FRED C. SCRIBNER,JR., THE PRESIDENTIAL VOTE FOR PUERTO RICO:REPORT OF THE AD HOC ADVISORY GROUP ON THE PRESIDENTIAL VOTE FOR PUERTO RICO 1 (U.S. Gov’t Printing Office, 1971). 23. See, e.g., H.R.J. Res. 1, 109th Cong. (2005) (proposing a constitutional amendment to extend the right to vote for President to residents of the Territories). 24. Elizabeth Warren, American Citizens in U.S. Territories Should Have Full Voting Rights, at 03:26–03:44 (Apr. 7, 2016), https://www.warren.senate.gov/?p=video&id=1144 (“The four million people who live in the Territories are not the subjects of a King. They are Americans. They live in America. But their interests will never be fully represented within our government until they have full voting rights just like every other American.”). 264 Stetson Law Review [Vol. 46 comedian John Oliver tackling the issue in a 2015 segment on HBO’s award-winning Last Week Tonight.25 Voting rights for the disenfranchised Americans living in the Territories and the District should not have to wait until the political status of these areas is resolved, whether in favor of statehood, independence, or something in between. While Puerto Rico and the District have had recent votes supporting statehood, it remains uncertain whether a Republican-controlled Congress will be receptive to calls for statehood.26 If Congress fails to quickly act on statehood for either the District or Puerto Rico, the only alternative which provides full political participation consistent with America’s democratic values is to amend the Constitution. A voting rights amendment for these Americans would not take any political status options off the table, and could help build the political power needed to make resolution of political status a reality, particularly in smaller territories where efforts to address status issues have been unable to progress.27 Building on Woodward’s proposal for the District and other historical precedent, this Article proposes a voting rights amendment that would provide full political participation and representation to the nearly five million U.S. citizens28 who call
25. John Oliver, U.S. Territories (HBO: Last Week Tonight Mar. 8, 2015), available at https://www.youtube.com/watch?v=CesHr99ezWE. 26. In 2016, nearly eighty percent of voters in the District of Columbia approved a measure to petition Congress for statehood, although it appears such a petition faces long odds in Congress. Christina Beck, Will Washington, D.C., Become the 51st State?, CHRISTIAN SCI.MONITOR (Nov. 9, 2016), http://www.csmonitor.com/USA/Politics/2016/ 1109/Will-Washington-D.C.-become-the-51st-state. In 2012, Puerto Rican voters participated in a two-part political status referendum, with fifty-four percent rejecting “the ‘present form of territorial status,’” and sixty-one percent choosing statehood over independence—five percent—or sovereign free associated state—thirty-three percent; but with many voters casting blank ballots in protest of the options, statehood only received forty-five percent support of the total ballots cast. David Royston Patterson, Will Puerto Rico be America’s 51st State?, N.Y. TIMES at SR4 (Nov. 24, 2012), available at http://www.nytimes.com/2012/11/25/opinion/sunday/will-puerto-rico-be-americas-51st- state.html. 27. See Office of Insular Affairs, Self-Determination Discussion, U.S. DEP’T OF THE INTERIOR, available at https://www.doi.gov/oia/self-determination (last visited Feb. 28, 2017) (Interior Assistant Secretary Esther Kia’aina hosting a self-determination panel discussion for U.S. Virgin Islands, American Samoa, and Guam). 28. While most people born in the Territories are recognized as citizens at birth, Congress has labeled people born in American Samoa as “nationals, but not citizens, of the United States.” 8 U.S.C. § 1408(1) (1988). The Author was involved in Tuaua v. United States, a legal challenge to this discriminatory law based on the Citizenship Clause of the Constitution that was rejected by the Court of Appeals for the District of Columbia. 788 F.3d 300 (2015). Judge Janice Rogers Brown, joined by Judges David Sentelle and Lawrence Silberman, relied on an expansive reading of the controversial Insular Cases to 2017] Equally American 265 the Territories or the District home. Part II provides historical and normative justifications for providing meaningful representation and full enjoyment of the right to vote to all Americans, wherever they live. Part III proposes a constitutional amendment which provides: (1) participation in presidential elections for residents of the Territories; (2) proportional representation in the House of Representatives for residents of each non-state area; (3) one Senator for residents of the Territories together and one for the District; and (4) participation in the Article V amendment process. Finally, Part IV argues that a voting rights amendment for the Territories and the District could make good politics for both Democrats and Republicans alike, a critical element for the success of any proposal to expand representation and the right to vote.
II. AMENDING THE CONSTITUTION IN ORDER TO FORM A MORE PERFECT UNION
Extending representation in the national government to Americans who reside in non-state areas is supported by both the historical and modern understandings of representation in the national government and its importance in a democratic society. If our nation is to fulfill its most cherished democratic principles and constitutional values, the Constitution must be amended to provide full enjoyment of the right to vote to all Americans, wherever they happen to live.
A. Elected Officials in the National Government Represent the People, Not the States
Ours is a government based on “We the People of the United States,” not We the People of the States United.29 Extending representation to citizens who reside in non-state areas is fully consistent with this foundational American principle. As the Supreme Court recognized in U.S. Term Limits, Inc. v.
hold that Congress had the power to limit application of the Constitution’s guarantee of birthright citizenship in U.S. Territories, since in the panel’s view such a right was not “fundamental.” Id. at 308. Thus, until another court or Congress says otherwise, these passport-holding Americans would remain disenfranchised even if they live in one of the fifty states, unless they go through the costly and burdensome naturalization process, which amounts to a poll tax and literacy test all rolled into one. 29. U.S. CONST. pmbl. (emphasis added). 266 Stetson Law Review [Vol. 46
Thornton,30 “the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people.”31 The Court pointed to Justice Joseph Story’s constitutional commentaries, which stated that the President and members of Congress both “owe their existence and functions to the united voice of the whole, not of a portion, of the people.”32 The Court observed that in the national government, “representatives owe primary allegiance not to the people of a State, but to the people of the Nation.”33 The Court further emphasized that “[t]he Congress of the United States . . . is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people.”34 As such, the Court concluded that “the right to choose representatives belongs not to the States, but to the people,” since “[t]he Constitution . . . creates a uniform national body representing the interests of a single people.”35 Invoking Lincoln, the Court emphasized that “[o]urs is a ‘government of the people, by the people, for the people.’”36 Justice Kennedy, writing a separate concurrence in Term Limits, agreed that “‘[i]n a republican government, like ours, . . . political power is reposed in representatives of the entire body of the people.’”37 He also took the position—which he believed to be “beyond dispute”—that “[t]he political identity of the entire people of the Union is reinforced by the proposition . . . [that] the National Government is, and must be, controlled by the people ....”38 The Founders’ understanding that federal elected officials represent the People and not the States received additional support from the Seventeenth Amendment, which was ratified in 1913 and established the popular election of U.S. Senators.39 The
30. 514 U.S. 779 (1995). 31. Id. at 821 (emphasis added). 32. Id. at 803 (citing Justice Story’s Commentaries, section 626) (emphasis added). 33. Id. (emphasis added). 34. Id. at 821 (emphasis added). 35. Id. at 820–22 (emphasis added). 36. Id. at 821 (quoting Abraham Lincoln, Gettysburg Address (1863)). 37. Id. at 839–40 (Kennedy, J., concurring) (quoting Ex Parte Yarbrough, 110 U.S. 651, 666 (1884)) (emphasis added). 38. Id. at 841 (Kennedy, J., concurring) (emphasis added). 39. U.S. CONST. amend. XVII. 2017] Equally American 267 purpose of the Seventeenth Amendment was to shift the mode of selection from the oftentimes corrupt state legislatures and place it instead directly in the hands of the citizenry, something the Constitution originally provided only for Representatives in the House.40 The motivating principle of the Seventeenth Amendment—that holding U.S. Senators democratically accountable to the People rather than to state legislatures increases the legitimacy, responsiveness, and effectiveness of this office—applies equally to extending representation in the national government to the nearly five million citizens who reside in non-state areas. Given the view that the President and members of Congress represent the whole People of the United States and not simply the residents of each State, every U.S. citizen should be able to fully participate in the national government, no matter where that citizen happens to live.
B. Constitutional Trend Toward Universal Adult Suffrage and Representation
Consistent with the principle that the national government represents the whole People of the United States and not just some portion thereof, the Constitution has already been amended numerous times to expand participation in our democracy and provide for more direct accountability to the People. The idea of “We the People” has not been static in the history of our constitutional republic. Since the founding of our nation, the idea of “We the People” has been expanded, both to include new groups and to provide expanded suffrage and representation to existing groups. This constitutional history and precedent strongly supports extending full voting rights and meaningful representation in the national government to citizens who reside in non-state areas. Because citizenship and enfranchisement are not coextensive in our constitutional framework,41 the extension of the franchise and the development of a “right to vote” have occurred piecemeal through the process of constitutional amendments. At the
40. See, e.g.,AKHIL REED AMAR,AMERICA’S CONSTITUTION:ABIOGRAPHY 412 (2005) (stating corruption was a major impetus in the reform towards direct election). 41. See, e.g., Bush v. Gore, 531 U.S. 98, 104 (2000) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States.”). 268 Stetson Law Review [Vol. 46
Founding, the right to vote was “limited essentially to property- owning, taxpaying white males over the age of twenty-one.”42 Today, there is universal adult suffrage. African-Americans were guaranteed the right to vote in 1870 with the ratification of the Fifteenth Amendment.43 Women were extended the franchise in 1920 with the ratification of the Nineteenth Amendment.44 And the voting age was lowered to eighteen in 1971 with the ratification of the Twenty-sixth Amendment.45 While a generic “right to vote” likely extends to the citizens who reside in non-state areas,46 the right to vote has not been interpreted to mean a concomitant right to voting representation in the national government.47 But the importance of providing citizens who reside in non-state areas with meaningful participation and representation in the national government was, at least in part, recognized by the ratification of the Twenty-third Amendment in 1961.48 The Twenty-third Amendment extended participation in the Electoral College to residents of the District of Columbia at a level equal to what it would have if it were a State.49 The significance of this Amendment for non-state areas cannot be understated. For the first time, the Constitution explicitly recognized that participation and representation in the national government was not inherently limited to the States— even in the Electoral College, one of the most state-centric elements of the original constitutional framework.
42. Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REV. 1345, 1345 (2003). At the time, the right to vote for the House of Representatives—then the only federal popular election—was entirely dependent on the voting qualifications for state legislatures; thus, a federal right to vote turned on the right to vote afforded by state law. Id. at 1345 n.2. 43. U.S. CONST. amend. XV. 44. Id. amend. XIX. 45. Id. amend. XXVI. 46. These Amendments have been explicitly extended to U.S. Territories through Congressional legislation. See, e.g., 48 U.S.C. § 1421(b) (1968) (expanding the protections afforded in the Bill of Rights to Guam); but see Segovia v. Bd. of Elec. Comm’rs, No. 15 C 10196, 2016 WL 4439947, at *11 (N.D. Ill. Aug. 23, 2016) (holding that the right to vote is not a “fundamental” right in so-called “unincorporated” Territories). 47. See, e.g., Attorney Gen. of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984) (“The right to vote in presidential elections under Article II inheres not in citizens but in states: citizens vote indirectly for the President by voting for state electors.”); Adams v. Clinton, 90 F. Supp. 2d 35, 72 (D.D.C. 2000) (recognizing the “contradiction between the democratic ideals upon which this country was founded and the exclusion of District residents from congressional representation,” but concluding that “it is the Constitution and judicial precedent that create the contradiction”). 48. U.S. CONST. amend. XXIII. 49. Id. 2017] Equally American 269
Building on the success of the Twenty-third Amendment, District residents made significant headway toward full representation in Congress through the proposed District of Columbia Voting Rights Amendment in the 1970s. This proposed amendment received the necessary two-thirds support in both the House and Senate in 1978, but it ultimately expired after obtaining ratification in only sixteen of the necessary thirty-eight state legislatures.50 Nonetheless, the bipartisan approval the amendment received from Congress and the significant support it received from the States provides legitimacy to the idea of non- state representation in both the House and Senate. There have also been efforts to build on the success of the Twenty-third Amendment to extend participation in the Electoral College to citizens who reside in U.S. Territories. In 1971 President Nixon appointed an advisory group to consider this issue and provide recommendations to the President.51 The advisory group recommended that participation in the Electoral College should be extended to citizens residing in U.S. Territories, and concluded that “place of residence should not be the basis for denying any qualified citizen his right to vote for the two Federal officials who represent us all, not just a portion of this citizenry.”52 Despite the advisory group’s recommendations, no action was taken by Congress. While efforts to provide expanded representation to citizens residing in non-state areas have thus far not been successful, full participation in federal elections has been secured for citizens who reside outside of the United States altogether. The Uniformed Overseas Citizens Absentee Voting Act (UOCAVA) was enacted in 1986 to guarantee that U.S. citizens temporarily or permanently residing overseas in foreign countries or certain U.S. Territories are permitted to participate in federal elections in their former place of residence.53 Each year thousands of U.S.
50. Boyd, supra note 15. 51. SCRIBNER,JR., supra note 22, at iii. 52. Id. at 1. Although the report most directly considered Puerto Rico, the separate views of Senator Henry M. Jackson emphasized that representation should be extended to all territories, not just Puerto Rico. Id. at 13. 53. 42 U.S.C. § 1973(ff) (1986) (transferred to 52 U.S.C. § 20301 (2016)). See generally Kevin J. Coleman, The Uniformed and Overseas Citizens Absentee Voting Act: Background and Issues, CONG.RES.SERVICE, available at http://fpc.state.gov/documents/organization/ 22715.pdf (last updated Jan. 30, 2003) (stating that “[m]embers of the military and U.S. citizens who live abroad are eligible to register and vote absentee in federal elections 270 Stetson Law Review [Vol. 46 citizens who permanently live outside the fifty states cast votes for President, Senators, and voting Representatives, even as most of the nearly five million citizens who live in non-state areas are denied such representation.54 The recognition in UOCAVA that citizens who no longer reside in one of the fifty states should nonetheless be able to vote for President and voting representatives in Congress provides additional support to the idea that all Americans, no matter where they live, should be able to vote for President and have full representation in Congress. In addition to expanding suffrage, the Constitution has also been amended to eliminate economic barriers to electoral participation.55 While property and taxpaying requirements as well as pauper exclusions were common during the nation’s early history,56 economic barriers to electoral participation have since been eliminated. The conceptual basis for these requirements— that only those who shared the burdens of the state ought to have a voice in its governance—has been replaced with the more democratic vision of universal adult suffrage. This shift was constitutionalized in 1964 by the Twenty-fourth Amendment, which provided that the right to vote in federal elections “shall not be denied or abridged . . . by reason of failure to pay any poll tax or other tax.”57 Shortly after this Amendment, the Supreme
under the provisions of the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986”). 54. Indeed, UOCAVA and similar state laws actually do permit former state residents residing in certain U.S. Territories (the Northern Mariana Islands, among others), to continue voting for President by absentee ballot. The Author is counsel in ongoing litigation challenging this discriminatory treatment on equal protection grounds. See Segovia v. Bd. of Elec. Comm’rs, No. 15 C 10196, 2016 WL 4439947, at *4 (N.D. Ill. Aug. 23, 2016) (challenge by residents of Puerto Rico, Guam, and the U.S. Virgin Islands who would be able to vote for President by absentee ballot if they had moved instead to the Northern Mariana Islands, American Samoa, or a foreign country); but see Romeau v. Cohen, 265 F.3d 118, 125 (2d Cir. 2001) (stating that citizens who move from a state to Puerto Rico are not guaranteed a right to vote in former state’s federal election under UOCAVA); Igartúa de la Rosa v. United States, 32 F.3d 8, 10 (1st Cir. 1994) (per curiam) (Igartúa de la Rosa I) (stating that UOCAVA does not apply to citizens who move from one jurisdiction to another within the United States). 55. U.S. CONST. amend. XXIV. 56. ALEXANDER KEYSSAR,THE RIGHT TO VOTE:THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 8–21 (2000). During the period of 1790–1855, taxation related voting qualifications were at one time or another the law in sixteen of thirty-one states. Id. at app., tbl.A.2. Ten of these also had property qualifications, and another two states had property qualifications but no taxation qualification. Id. From 1790–1920, a pauper exclusion to voting was the law at one time or another in twelve of forty-eight states. Id. at app., tbl.A.6. 57. U.S. CONST. amend. XXIV. 2017] Equally American 271
Court ruled in Harper v. Virginia Board of Elections58 that poll tax qualifications in state elections were also unconstitutional.59 The Court found that “[t]o introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capricious or irrelevant factor.”60 Even the dissent recognized that while “[p]roperty qualifications and poll taxes have been a traditional part of our political structure” these requirements “very simply, are not in accord with current egalitarian notions of how a modern democracy should be organized.”61 The dissent also recognized that the reason so many states had abolished property and poll tax requirements that existed during the nation’s early history was that “[o]ver the years . . . popular theories of political representation had changed.”62 Thus, while contribution to the federal or state treasury was originally viewed as a necessary responsibility of citizenship, under the theory of political representation reflected in our Constitution today, taxation has no bearing on voting rights or representation.63
58. 383 U.S. 663 (1966). 59. Id. at 670 (overruling Breedlove v. Suttles, 302 U.S. 277 (1937), which upheld a poll tax qualification as constitutional). 60. Id. at 668. 61. Id. at 684, 686 (Harlan, J., dissenting). 62. Id. at 684. 63. Citizens in the Territories pay most forms of federal taxation, with the significant exception of federal income tax. STEVEN MAGUIRE,FEDERAL TAXES AND THE U.S. POSSESSIONS:AN OVERVIEW, CRS REP. RL32708, at 2 (2008) (“[R]esidents of the possessions are generally exempt from federal taxes, but one cannot automatically conclude that residents of the possessions are taxed more or less favorably than residents of the [fifty] states and the District of Columbia.”). For example, in 2015 alone, residents of Puerto Rico paid more than $3.5 billion in federal taxes. INTERNAL REVENUE SERV., DATA BOOK, 2015 Pub. 55B, at 12 (Mar. 2016), available at https://www.irs.gov/pub/irs- soi/15databk.pdf. At the same time, the federal benefits received by residents of the Territories are greatly reduced compared to what they would be if they lived in a State. As a result, territorial residents would likely end up in a better financial position in the aggregate if they were simply treated the same as state residents for purposes of federal benefits and taxation. See U.S. GOV’T ACCOUNTABILITY OFFICE,PUERTO RICO: INFORMATION ON HOW STATEHOOD WOULD POTENTIALLY AFFECT SELECTED FEDERAL PROGRAMS AND REVENUE SOURCES (Mar. 2014), available at http://www.gao.gov/assets/ 670/661334.pdf (finding that increased federal spending in Puerto Rico would likely eclipse increased federal taxation); JOINT COMM. ON TAXATION,AN OVERVIEW OF THE SPECIAL TAX RULES RELATED TO PUERTO RICO AND AN ANALYSIS OF THE TAX AND ECONOMIC POLICY IMPLICATIONS OF RECENT LEGISLATIVE OPTIONS, JCX-24-06 (2006) (finding that increased federal spending would allow Puerto Rico to decrease its own spending and maintain a more balanced budget). As these findings rest on multiple assumptions, more study of the complex interplay between federal taxes and federal benefits in the Territories is warranted. 272 Stetson Law Review [Vol. 46
C. Federal Courts Speak to the Importance of Voting Rights and Representation
The Supreme Court and lower federal courts have also recognized the significance of the right to vote and the importance of federal representation in our constitutional Republic. The Supreme Court has called the right to vote “a fundamental political right [that is] preservative of all rights.”64 Quoting Alexander Hamilton,65 the Court stated that “[a] fundamental principle of our representative democracy is . . . ‘that the people should choose whom they please to govern them.’”66 In Wesberry v. Sanders,67 the Court presented its view on the importance of popular representation in the national government:
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.68
Addressing the threat to democracy posed by disenfranchisement, the Court in Kramer v. Union Free School District No. 1569 explained:
Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives.70
64. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). 65. Hamilton spent much of his childhood in the Caribbean island of St. Croix, then a Danish colony but now a part of the U.S. Virgin Islands.RON CHERNOW,ALEXANDER HAMILTON 7–40 (2004). 66. Powell v. McCormack, 395 U.S. 486, 547 (1969) (internal citation omitted). 67. 376 U.S. 1 (1964). 68. Id. at 17–18. 69. 395 U.S. 621 (1969). 70. Id. at 626–27. 2017] Equally American 273
While the specific holdings of these decisions may not create any obligation to extend representation to citizens who reside in non-state areas,71 as a policy matter their reasoning and logic fully support the extension of federal representation to these citizens, who are subject to the full application of federal law. Lower court judges have expressed concern about the lack of representation for Americans living in non-state areas, even as they have consistently denied legal claims by citizens in non-state areas seeking federal representation. First Circuit Judge Kermit Lipez wrote in a 2010 concurring opinion in Igartúa de la Rosa v. United States (Igartúa IV)72 that “the issue of federal voting rights for [the four million] United States citizens [who reside in Puerto Rico] remains a compelling legal problem. The unequal distribution of the fundamental privilege of voting among different categories of citizens is deeply troubling . . . .”73 Dissenting in part, Judge Juan Torruella recognized that “the political inequality that exists within the body politic of the United States, as regards the four million citizens of this Nation who reside in Puerto Rico . . . is a fundamental constitutional question that will not go away.”74 In Adams—where a divided three-judge panel denied requests by residents of the District of Columbia for representation in the U.S. House of Representatives—the majority observed that “many courts have found a contradiction between the democratic ideals upon which this country was founded and the exclusion of District residents from congressional representation.”75 The majority noted that it
71. See Igartúa de la Rosa v. United States (Igartúa II), 229 F.3d 80, 85 (1st Cir. 2000) (Torruella, J., concurring) (“[T]he Constitution does not guarantee United States citizens residing in Puerto Rico the right to vote in the national Presidential election.”); see also Ballentine v. United States, 486 F.3d 806, 811 (3d Cir. 2007) (“[C]itizens choosing to reside within [U.S. Virgin Islands] borders are not entitled to vote for electors even if they are denied a role in the selection of the President and Vice-President.”); Attorney Gen. of Guam v. United States, 738 F.2d 1017, 1019 (9th Cir. 1984) (“Since Guam concededly is not a state, it can have no electors, and plaintiffs cannot exercise individual votes in a presidential election.”); Adams v. Clinton, 90 F. Supp. 2d 35, 45–46 (D.D.C. 2000) (“[R]esidents of United States territories are not entitled to vote in federal elections, notwithstanding that they are United States citizens.”). 72. 626 F.3d 592 (1st Cir. 2010). 73. Id. at 606 (Lipez, J., concurring). 74. Id. at 612 (Torruella, J., concurring in part and dissenting in part). 75. Adams, 90 F. Supp. 2d at 72. Indeed, Judge Louis Oberdorfer, dissenting, believed that “the denial of the right to vote for voting representation in the legislature with exclusive authority over the District” is so inconsistent with “the democratic principles reflected in the structure of the government created pursuant to the Constitution” that he 274 Stetson Law Review [Vol. 46 was “not blind to the inequity of the situation plaintiffs seek to change,” quoting Justice Marshall’s statement in Loughborough v. Blake76 that “it might be more congenial to the spirit of our institutions to admit a representative from the district.”77 In Romeu v. Cohen78—where the Second Circuit denied a claim brought by a citizen residing in Puerto Rico arguing that under UOCAVA he should be able to continue voting in federal elections in his former state of residence—Judge Pierre Leval recognized “problems of fairness, resentment, and impaired reputation in the community of nations”79 stemming from the continued disenfranchisement of citizens residing in U.S. Territories, while Judge John Walker expressed concern “that the U.S. citizens residing in the territories are not being afforded a meaningful voice in national governance.”80 Beyond expressing concern over continued disenfranchisement in non-state areas, these views expressed by lower court judges also recognize that either Statehood or an amendment to the Constitution are the only available solutions to the “fundamental Constitutional question” facing citizens who reside in non-state areas.81 The reasoning and logic of these judicial statements provide even further support for a political solution that provides representation and voting rights to citizens who reside in non- state areas.
would have found the residents of the District entitled to representation in the House. Id. at 97 (Oberdorfer, J., concurring in part and dissenting in part). 76. 18 U.S. 317 (1820). 77. Adams, 90 F. Supp. 2d at 55, 72 (quoting Loughborough, 18 U.S. at 324–35). 78. 265 F.3d 118 (2d Cir. 2001). 79. Id. at 128. 80. Id. at 136 (Walker, C.J., concurring). 81. Igartúa de la Rosa v. United States (Igartúa IV), 626 F.3d 592, 612 (1st Cir. 2010) (Torruella, J., concurring in part and dissenting in part). See also id. at 597 (majority opinion) (recognizing that “[t]here has been no amendment that would permit the residents of Puerto Rico to vote for Representatives to the U.S. House of Representatives”); Adams, 90 F. Supp. 2d at 72 n.75 (citing Representation for the District of Columbia: Hearings Before the Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 95th Cong. 131 (1978) (statement of Patricia M. Wald, Assistant Attorney General)) (agreeing that a “constitutional amendment is necessary” to provide the District with voting representation); but see Romeu, 265 F.3d at 128, 130 (stating that the assumption “that U.S. citizens residing in Puerto Rico cannot be given a vote in the presidential election without either making Puerto Rico a State, or amending the Constitution . . . may be only partially correct,” and proposing that “Congress might permit every voting citizen residing in a territory to vote for the office of President by requiring every State that chooses its electors by popular vote (which all States do) to include in that State’s popular vote the State’s pro rata share of the votes cast by U.S. citizens in the territories”). 2017] Equally American 275
D. Equal in War, Equal in Peace: Democratic Expansion During Periods of War
Historically, expansions of voting rights and representation in the national government have often been associated with the service of disenfranchised groups in America’s wars and armed conflicts. The enfranchisement of African-Americans following the Civil War was endorsed by President Lincoln “on the basis of intelligence and military service,” and General William Tecumseh Sherman’s observation that “when the fight is over, the hand that drops the musket cannot be denied the ballot.”82 Passage of the Nineteenth Amendment was even more directly linked to military service. In a turning point in the women’s suffrage movement, President Woodrow Wilson announced his support of the Amendment “as a war measure,” since World War I “could not have been fought . . . if it had not been for the services of women.”83 Scholars have argued that the “white primary” was a judicial casualty of World War II,84 as the Court was influenced by “the common sacrifices of wartime.”85 The Twenty-sixth Amendment, extending the franchise to eighteen to twenty-one- year-olds, was also linked to the wartime service of young Americans. As President Eisenhower expressed in 1952, “If a man is old enough to fight he is old enough to vote.”86 The Supreme Court in Oregon v. Mitchell,87 in recognizing Congress’ power to extend the right to vote to eighteen-year-olds through simple statute, commented on the “large stake” these citizens had in modern elections “whether in times of war or peace.”88 Final ratification of the Amendment occurred while tens of thousands of eighteen to twenty-one-year-olds were serving their country in Vietnam.
82. Karlan, supra note 42, at 1349 (citations omitted). In a letter to General Wadsworth, President Lincoln recognized that “the colored race . . . who had so heroically vindicated their manhood on the battle-field, where, in assisting to save the life of the republic, . . . have demonstrated in blood their right to the ballot, which is but the humane protection of the flag they have so fearlessly defended.” BENJAMIN QUARLES,LINCOLN AND THE NEGRO 186 (1991). 83. KEYSSAR, supra note 56, at 216–17. 84. Karlan, supra note 42, at 1355–56. 85. Id. at 1356 (citing PHILIP A. KLINKNER &ROGERS M. SMITH,THE UNSTEADY MARCH:THE RISE AND DECLINE OF RACIAL EQUALITY IN AMERICA 193 (1999)). 86. Id. at 1359 (footnotes omitted); KEYSSAR, supra note 56, at 278. 87. 400 U.S. 112 (1970). 88. Id. at 144. 276 Stetson Law Review [Vol. 46
Americans who reside in non-state areas have a long history of distinguished military service. Yet the same people who have sacrificed so much defending democracy overseas are denied full democratic participation at home. Soldiers from the Territories cannot even vote for their Commander-in-Chief. So while these military service members must follow the orders of the President and live with the decisions made by Congress when it comes to the resources allocated to veterans, they have no say in electing the officials who make those decisions. Today there are nearly thirty thousand active duty military personnel whose home of record is a Territory or the District of Columbia.89 Over 150,000 veterans call these areas home.90 During the course of Operation Iraqi Freedom and Operation Enduring Freedom, more than 22,000 soldiers from non-state areas were deployed to Iraq and Afghanistan, with casualty rates in the smaller territories ranging from three times the national average in the U.S. Virgin Islands to more than seven times in American Samoa.91 All told, nearly one hundred service members from the Territories and the District paid the ultimate sacrifice during these conflicts.92 In the Korean War, 959 members of the armed forces from non-state areas died serving their country.93 In Vietnam, 676 lost their lives.94 Puerto Rican service members have been awarded the Congressional Medal of Honor on nine separate occasions,95 and in 2016, Congress presented a
89. Office of Public Affairs Media Relations, State Summary: District of Columbia, DEP’T OF VETERANS AFF. (Sept. 30, 2014), http://www.va.gov/vetdata/docs/SpecialReports/ State_Summaries_District_of_Columbia.pdf. 90. Veterans Statistics, U.S. CENSUS BUREAU (Nov. 11, 2015), available at http://www .census.gov/library/visualizations/2015/comm/veterans-statistics.html. 91. See Kirsten Scharnberg, Young Samoans Have Little Choice but to Enlist, HONOLULU ADVERTISER (Mar. 21, 2007), http://the.honoluluadvertiser.com/article/2007/ Mar/21/ln/FP703210396.html (discussing the historical relationship between the military and young Samoans and their willingness to join the military). 92. See Office of Insular Affairs, Island Military Heroes, U.S. DEP’T OF THE INTERIOR, http://www.doi.gov/oia/islanders_in_the_military/heroes (last visited Feb. 28, 2017) (listing the names of soldiers lost in the different combat theaters). 93. See State-Level Fatal Casualty Lists for the Korean War, U.S. NAT’L ARCHIVES & REC.ADMIN., http://www.archives.gov/research/military/Korean-war/casualty-lists/state- level-alpha.html (last visited Feb. 28, 2017) (listing casualties by State and Territory). 94. See State-Level Fatal Casualty Lists for the Vietnam War, U.S. NAT’L ARCHIVES & REC.ADMIN., http://www.archives.gov/research/military/Vietnam-war/casualty-lists/state- level-alpha.html (last visited Feb. 28, 2017) (listing casualties by State and Territory). 95. For a list of the original five Puerto Rican recipients of the Medal of Honor, see Puerto Rican Medal of Honor Recipients,GENI, https://www.geni.com/projects/Medal-of- Honor-recipients-Puerto-Rican/5002 (last visited Feb. 28, 2017). For the remaining four recent recipients, see Medal of Honor Awards to Puerto Rican Soldiers,PUERTO RICO REP. 2017] Equally American 277
Congressional Gold Medal to honor the Puerto Rico-based 65th Infantry Regiment, known as the Borinqueneers, “for its pioneering military service, devotion to duty, and many acts of valor in the face of adversity.”96 Despite this distinguished record of sacrifice, veterans’ services in the Territories often fall far below that provided in the rest of the United States. For example, as investigative journalist Maria Hinojosa discovered, while up to one in eight adults in Guam is a veteran, Guam ranks dead last when it comes to per capita spending on medical care for veterans.97 For many common problems, like Post Traumatic Stress Disorder, the closest full- service treatment is nearly four thousand miles away.98 These patriotic Americans have sacrificed greatly to defend American Democracy. It is past time they are able to be full participants in the voting booth the way they have been on the battlefield.
E. The Law of Nations in the Twenty-First Century
Today, the Law of Nations supports the extension of meaningful representation in the national government for residents of non-state areas, just as the Law of Nations as it existed in the late nineteenth century was used as a justification for the acquisition and governance of overseas territories by the United States without representation.99 The International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, recognized that “[e]very citizen shall have the right and the opportunity . . . (a) [t]o take part in the conduct of public affairs, directly or through freely chosen
(Feb. 21, 2014), http://www.puertoricoreport.com/medal-of-honor-awards-to-puerto-rican- soldiers/#.WEcHq03FB9M. 96. Office of the Speaker of the House, Press Release, Gold Medal Ceremony: Congress to Honor 65th Infantry Regiment, the Borinqueneers (Mar. 18, 2016), http://www.speaker .gov/press-release/gold-medal-ceremony-congress-honor-65th-infantry-regiment- borinqueneers. 97. America by the Numbers: Island of Warriors 03:00–03:09 (PBS television broadcast Oct. 11, 2014), available at http://www.pbs.org/wgbh/america-by-the-numbers/episodes/ episode-102/. 98. Id. at 14:00–16:58. 99. As Justice White explained in Downes v. Bidwell, the most prominent of the Insular Cases, “[t]he general principle of the law of nations . . . is that acquired territory, in the absence of agreement to the contrary, will bear such relation to the acquiring government as may be by it determined.” 182 U.S. 244, 306 (1901). 278 Stetson Law Review [Vol. 46 representatives; (b) [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.”100 The United States has been subject to substantial international pressure as a result of the democratic deficit that exists in its non-state areas.101 While federal courts have held that none of the treaties the United States has ratified create an individual cause of action for citizens who reside in non-state areas,102 the democratic values set forth therein are nonetheless principles of customary international law that the United States has adopted. A constitutional amendment expanding the right to vote in non-state areas would fully satisfy the United States’ democratic commitments under international law.103
100. International Covenant on Civil and Political Rights, art. 25 (Dec. 16, 1966), 999 U.N.T.S. 171. 101. See, e.g., Statehood Solidarity Comm. v. United States, Case 11.204, Inter-Am Comm’n Report No. 98/03, OEA/Ser./L/V/II.114, doc. 70 rev. ¶ 109 (2003) (on file with Stetson Law Review) (concluding that the United States “has failed to justify the denial to the [residents of D.C.] of effective representation in their federal government, and consequently that [they] have been denied an effective right to participate in their government, directly or through freely chosen representatives and in general conditions of equality, contrary to Articles XX and II of the American Declaration”); Mary Beth Sheridan, International Body Backs Vote for D.C.,WASH.POST at B08 (July 6, 2005), available at http://www.washingtonpost.com/wp-dyn/content/article/2005/07/05/ AR2005070501943.html (reporting the recommendation of the Organization for Security and Cooperation in Europe that the United States provide full congressional representation to residents of the District of Columbia); Press Release, General Assembly, Special Committee on Decolonization Adopts Text Calling on United States to Expedite Self-Determination Process for Puerto Rican People,UNITED NATIONS GA/COL/317296 (June 9, 2008), available at https://www.un.org/press/en/2008/gacol3176.doc.htm. 102. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004) (“[T]he Senate has expressly declined to give the federal courts the task of interpreting and applying ... [ICCPR]” because the Senate declared its substantive provisions “were not self- executing.”); see also Ballentine v. United States, 486 F.3d 806, 815 (3d Cir. 2007) (concluding the court “lacks jurisdiction over any ICCPR claim, as beyond the province of the federal judiciary”); Igartúa de la Rosa v. United States (Igartúa III), 417 F.3d 145, 148 (1st Cir. 2005) (“No treaty claim, even if entertained, would permit a court to order that the electoral college be enlarged or reapportioned.”). 103. International law also protects the right to self-determination and indigenous rights in the Territories, areas where the United States also needs to make progress. See, e.g., Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. General Assembly Resolution 1514 (XV) (Dec. 14, 1960) (“All peoples have the right to self- determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”); United Nations Declaration on the Rights of Indigenous Peoples, U.N. General Assembly Resolution (Sept. 17, 2007) (same); Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, U.N. General Assembly Resolution 1541 (XV) (Dec. 15, 1960) (“Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes.”); see also Jon M. Van Dyke, Carmen Di Amore-Siah & Gerald W. Berkley-Coats, Self-Determination for Nonself- 2017] Equally American 279
In sum, the understanding that federal elected officials represent the whole People of the United States; the constitutional trend towards universal suffrage and representation; the recognition by the Supreme Court that voting is a fundamental right; the distinguished record of military service and sacrifice from citizens who reside in non-state areas; and America’s commitments to voting rights and representation under international law all support amending the Constitution to embrace U.S. citizens living in non-state areas as full and equal members of the American political community.
III. A PROPOSAL TO AMEND THE CONSTITUTION
A constitutional amendment must achieve certain objectives in order to realize America’s democratic principles in non-state areas. Americans who live in non-state areas, as part of the sovereign “We the People,” must be granted participation and representation in all aspects of the national government: from electing the President, to selecting members of the House and Senate, to amending the Constitution. There are of course a number of ways in which a constitutional amendment may fulfill each of these goals. The proposal presented in this Article, provided in full in Appendix A, is one place from which to continue the discussion.104
Governing Peoples and for Indigenous Peoples: The Cases of Guam and Hawai’i, 18 U. HAW. L. REV. 623, 623–24 (1996) (discussing the self-governance and self-determination rights of indigenous people and those in nonself-governing territories under international law as “separate and distinct from the rights of colonized peoples”). 104. For an example of another proposal of a voting rights amendment that would address certain voting rights issues in the Territories and the District, see Jamin Raskin, Democratic Capital: A Voting Rights Surge in Washington Could Strengthen the Constitution for Everyone, 23 WM.&MARY BILL RTS. J. 47, 54–58 (2014) (proposing a “Comprehensive Democracy Amendment” that would provide the right to vote for President to residents of the Territories (but no congressional representation), and treat the District as a State for purposes of Senate and House representation, in addition to creating an express “right to vote,” eliminating the “natural-born citizenship” requirement to run for President, and limiting the participation of corporations in the political process); but see Heather K. Gerken, The Right to Vote: Is the Amendment Game Worth the Candle?, 23 WM.&MARY BILL RTS. J. 11, 19 (2014) (dismissing that a broad right to vote amendment “is going to lend greater moral weight to the claims of U.S. citizens in the territories or D.C.”). 280 Stetson Law Review [Vol. 46
A. Full Participation in Presidential Elections
Section 1. When the Number of Persons in a Territory of the United States shall exceed thirty Thousand inhabitants, that Territory shall appoint in such manner as Congress may direct:
A number of electors of President and Vice President equal to the whole number of Representatives to the United States House of Representatives to which it would be entitled if it were a State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the Territory in which they were appointed and perform such duties as provided by the twelfth article of amendment.
For purposes of choosing a President should no candidate for President receive a majority of the whole number of Electors appointed, the District constituting the seat of government of the United States together with the Territories of the United States shall be treated as though they were a State.
Section 1 of the proposed amendment provides full participation in presidential elections for Americans who reside in non-state areas.105 It provides Americans residing in U.S. Territories with a number of electors based upon how many Representatives the Territory would have if it were a State. This approach breaks from the approach taken by the Twenty-third Amendment, which provides the District of Columbia three electors. The basis for the difference is that the population of the Territories is either very much smaller than the smallest State or very much larger. Providing three electors for small Territories like Guam or the U.S. Virgin Islands is hard to justify on the basis of proportional representation. Similarly, limiting Puerto Rico to just three electors would unfairly dilute the vote of its residents, since it has a population larger than almost half the
105. The requirement in this section that a Territory have a population of thirty thousand, as in other sections, ensures that representation is extended to the five populated Territories, and not the largely uninhabited U.S. island possessions like Palmyra Atoll. 2017] Equally American 281
States.106 While it may be most consistent with democratic principles to eliminate the Electoral College altogether, absent support for that,107 this approach gets the proportional representation about right.108 The second clause of section 1 allows non-state areas to participate in the selection of the President in the rare case that no candidate receives the majority of presidential electors. Under the Twelfth Amendment, if no candidate wins a majority, then the House of Representatives must choose the President, with the representation from each State casting a single vote regardless of population.109 While this process clearly conflicts with any concept of proportional representation, the approach taken in the proposed amendment seeks to provide some notion of proportional representation and deference to states by treating all of the non-state areas together as a whole.110 So, under this proposal, each of the fifty states would have one vote, and the non-state areas, together, would have one vote. This provision is justified since citizens who reside in non-state areas, as part of “We the People,” should participate in the selection of the
106. U.S. CENSUS BUREAU, supra note 1, at tbl. 1 & tbl. A. Using the 2010 Census numbers, Puerto Rico’s estimated population of 3,725,789 would make Puerto Rico the twenty-ninth most populous state. Id. 107. Recognizing the difficulty of convincing three-quarters of the States to eliminate the Electoral College, one novel approach has been the National Popular Vote Plan, which would effectively substitute a national popular vote through an interstate compact. See JOHN R. KOZA ET AL., EVERY VOTE EQUAL:ASTATE-BASED PLAN FOR ELECTING THE PRESIDENT BY NATIONAL POPULAR VOTE 255 (2013) (proposing to reform the presidential election process without constitutional amendment). The plan has been “enacted by 11 jurisdictions possessing 165 electoral votes—61% of the 270 electoral votes necessary to activate it.” Agreement Among the States to Elect the President by National Popular Vote, NAT’L POPULAR VOTE, http://www.nationalpopularvote.com/written-explanation (last visited Feb. 28, 2017). Unfortunately, this proposal as currently drafted does not include residents of the Territories as part of the national popular vote, so even if activated, it would not extend a right to vote for President to these Americans. 108. Wyoming has the smallest number of people per presidential elector with approximately 189,433 people per elector, slightly more than the current population of Guam. 2012–2020 Federal Representation by People per House Seat, Senate Seat, and Electors,GREEN PAPERS (last modified Jan. 5, 2011), http://www.thegreenpapers.com/ Census10/FedRep.phtml. Seven states and the District of Columbia have fewer than 300,000 people per elector; California has the highest ratio with approximately 678,945 people per elector. Id. 109. This procedure has only been used once in American history, deciding the 1825 presidential election. Scott Bomboy, Looking Back at the Last Presidential Election Settled by the House,NAT’L CONST.CENTER (Feb. 11, 2015), http://blog.constitutioncenter.org/ 2015/02/the-day-that-the-12th-amendment-worked/. 110. The population of the non-state areas considered together, 4.7 million, is higher than twenty-eight states. U.S. CENSUS BUREAU, supra note 1, at tbl. 1 & tbl. A. 282 Stetson Law Review [Vol. 46
President at every level. To limit the ultimate selection of the President in the House by excluding the participation of non- state areas conflicts with the principle that the President represents all Americans, not just Americans who reside in the States.
B. Representation in the House of Representatives
Section 2. For purposes of representation in the United States House of Representatives, the District constituting the seat of government of the United States and, separately, each Territory of the United States with a population of thirty Thousand inhabitants, shall be treated as though it was a State.
Representation in the House of Representatives for Americans who reside in non-state areas is provided for in section 2 of the proposed amendment. For purposes of this section, each of the non-state jurisdictions are treated as though it were a State, meaning that small Territories and the District of Columbia would each receive one voting Representative, and Puerto Rico would receive five or six Representatives.111 While the Representatives in the smaller Territories would each represent substantially fewer Americans than even the smallest existing congressional district,112 this difference is small, for example, when compared with the differences in representation that already exist in the Senate between large states and small states.113
C. Representation in the Senate
Section 3. For purposes of representation in the United States Senate, the District constituting the seat of government of the United States and, considered together, the Territories of the
111. See, e.g., José R. Coleman Tió, Six Puerto Rican Congressmen Go to Washington, 116 YALE L.J. 1389, 1390–93 (2007) (arguing the legal reasoning of the District of Columbia House Voting Rights Act of 2007 (H.R. 1433) would support granting Puerto Rico up to six Representatives). 112. Rhode Island’s Congressional District 2 is the smallest district with 523,741 people; Montana’s At-Large district is the largest with 1,032,949. My Congressional District, U.S. CENSUS BUREAU, https://www.census.gov/mycd/ (last visited Feb. 28, 2017). 113. In California, each Senator represents over eighteen million people, while in Wyoming each Senator represents only around 280,000 people, for a ratio of 66:1. 2012– 2020 Federal Representation by People per House Seat, Senate Seat, and Electors, supra note 108. 2017] Equally American 283
United States, shall each be entitled to one Senator, who shall have the same rights, duties and qualifications as Senators elected by a State.
In order for representation in Congress to be meaningful, residents of non-state areas must also have representation in the Senate. Section 3 of the proposed amendment provides the residents of the Territories, considered together, one Senator, and the residents of the District of Columbia one Senator. Increasing the size of the Senate by just two to provide representation for non-state areas attempts to balance the competing democratic values of proportional representation and the goal of providing diverse communities with their own representation. Under this approach, the number of people represented by each Senator will be on par with the number of people per Senator in many, if not most, of the States.114 And while it may be ideal for representational purposes to provide each political jurisdiction with its own Senator, the Territories, as island communities, do share many common geographic, economic, and even cultural similarities and interests. The geographic distances between Territories would surely pose some challenges, but these challenges are not insuperable given today’s modern travel and communications. Indeed, the examples of large states like Texas, Alaska, or Hawaii demonstrate it is possible to address the challenges of representing diverse, far-flung communities. The Senator representing the Territories would likely be from Puerto Rico, given its large population. But because Puerto Rican elections are historically very close,115 candidates would need to compete for votes in other Territories if they hope to prevail, meaning whoever is elected is likely to be responsive to the interests of the other Territories. Sharing a single Senator
114. In the District of Columbia there would be over six-hundred thousand people per senator, a ratio greater than eight States: Alaska, Delaware, Montana, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming. Id. In the territories, there would be approximately 4.1 million people per senator, a ratio greater than all but the eleven largest States: California, Florida, Georgia, Illinois, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and Texas. Id. 115. For example, the top two congressional candidates in Puerto Rico’s 2016 election were separated by just 1.5%. The Green Papers: Puerto Rico 2016 General Election,GREEN PAPERS, http://www.thegreenpapers.com/G16/PR (last updated Jan. 27, 2017, 01:27:59 AM EST). In 2012 it was less than 1.2%. The Green Papers: Puerto Rico 2012 General Election, GREEN PAPERS, http://www.thegreenpapers.com/G12/PR (last updated Dec. 8, 2012, 01:29:23 PM EST). 284 Stetson Law Review [Vol. 46 might also help foster more of a sense of a united delegation among the various Territories, resulting in greater opportunities for coordination and amplification of political power as occurs in each of the state congressional delegations. Representation in the Senate is essential because the Senate serves a unique constitutional role for many purposes. The Senate alone may ratify treaties.116 It is also the role of the Senate to provide advice and consent to the appointment of federal judges, ambassadors, and all other “Officers of the United States.”117 The Senate also has sole responsibility to try the impeachment of the President, federal judges, and all federal officers.118 Finally, the Senate chooses the Vice President in the event no candidate receives a majority of the electoral votes.119 Furthermore, since all legislation must originate in both the House and the Senate, a lack of representation in one chamber of Congress dramatically diminishes the ability of a jurisdiction to promote its legislative agenda and protect its interests. When it comes to the appropriations process, jurisdictions that lack representation in both chambers are put at great disadvantage since items that appear in only one version of a bill may be the most likely to be cut. Thus, absent representation in the Senate, the citizens of non-state areas will be substantially excluded from major decisions that impact their lives. Senate representation is also particularly important for the non-state areas because Congress has plenary power to legislate in these jurisdictions, subject only to the limitations of the Constitution.120 This places non-state areas at a greater risk of
116. U.S. CONST. art. II, § 2, cl. 2. The President makes treaties, but needs two-thirds approval by the Senate. Id. 117. Id. Significantly, federal criminal law fully applies in the Territories, despite a lack of democratic accountability in the making of those laws or in selecting the federal prosecutors and judges who send territorial residents to jail, sometimes for life. In 2012, the most recent year for available statistics, more than 2,100 individuals were prosecuted for federal crimes in the Territories, with more than 1,500 receiving a criminal sentence. Lauren E. Glaze & Erinn J. Herberman, Correctional Populations in the United States, 2012,BUREAU OF JUST.STAT. (Dec. 19 2013), available at http://www.bjs.gov/index .cfm?ty=pbdetail&iid=4843. 118. U.S. CONST. art. I, § 3, cl. 6. 119. Id. amend. XII. 120. The Supreme Court has recently stated that “[t]he Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” Boumediene v. Bush, 553 U.S. 723, 765 (2008). However, lower courts continue to rely on the controversial Insular Cases to rule that Congress may define for itself its own constitutional limitations in so-called 2017] Equally American 285 tyranny of the majority than the fifty states, which have the added protection of federalism. The Senate serves an important function of protecting the interests of the minority against the excesses of the majority since the Senate’s open procedural rules and tradition of unlimited debate gives individual Senators great power to obstruct legislation they view to be contrary to the interests of their constituency.121 Because most pieces of legislation rely on unanimous consent to reach the Senate floor, a single Senator has the power to effectively delay or even kill legislation by placing a “hold” on a bill.122 This powerful tool may serve as a shield for a Senator to protect his or her jurisdiction from unfavorable legislation or as a sword to elicit concessions. Senate rules also allow Senators to use the legislative amendment process to try and delay legislation once it reaches the floor or include an unfavorable “poison pills” amendment that might ensure a bill’s defeat. The final weapon in a Senator’s arsenal is the filibuster, which, because of the Senate’s tradition of unlimited debate, allows an individual Senator to delay legislation so long as he or she can keep talking, subject only to a vote of cloture, which requires the support of three-fifths of the Senate.123 Thus, a Senator representing the District of Columbia or the Territories would have a broad array of procedural tools to serve as a check against Congress using its plenary authority in a manner detrimental to the interests of the citizens who reside in these areas. Indeed, Senate representation may be the key to creating more meaningful autonomy in non-state areas. In this way, the fact that the District of Columbia and the Territories do not enjoy the protection of federalism that comes with being a state actually weighs in favor of providing the important political safeguard of Senatorial representation to these jurisdictions.124
“unincorporated territories.” See, e.g., Tuaua v. United States, 788 F.3d 300, 306–07 (D.C. Cir. 2015) (upholding Congress’ power to restrict the application of the Citizenship Clause in American Samoa). 121. See generally GREGORY J. WAWRO &ERIC SCHICKLER,FILIBUSTER:OBSTRUCTION AND LAWMAKING IN THE U.S. SENATE (2006); SARAH A. BINDER &STEVEN S. SMITH, POLITICS OR PRINCIPLE,FILIBUSTERING IN THE UNITED STATES SENATE (1996). 122. BINDER &SMITH, supra note 121, at 11–12. 123. Filibuster and Cloture,UNITED STATES SENATE, http://www.senate.gov/ artandhistory/history/common/briefing/Filibuster_Cloture.htm (last visited Feb. 28, 2017). 124. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 546–47 (1954) (explaining the Senate’s role in protecting the interests of states that are a part of the minority in the House of Representatives). 286 Stetson Law Review [Vol. 46
D. Participation in the Article V Amendment Process
Section 4. For purposes of Article V of the Constitution, the District constituting the seat of government of the United States together with the Territories of the United States shall be treated as though they were a State.
The Article V amendment process serves as a procedural surrogate for the popular sovereignty of “We the People.”125 Thus, Americans who reside in non-state areas, like their state-residing counterparts, should have a role in the ratification process of Constitutional amendments. The alternative is that millions of Americans who reside in non-state areas would be altogether excluded from the ratification process—even as they would most assuredly be bound by its results. And yet, their representatives in Congress would still be able to propose amendments and vote on them in Congress. This odd disjuncture of participation in the amendment process is avoided in the proposed amendment by extending to the non-state areas a single vote for Article V ratification purposes. By providing non-state areas with one vote total, rather than providing each jurisdiction with a separate vote, the principle of proportional representation is more closely met, protecting the relative power of each State. For logistical reasons, amendment ratification in non-state areas will need to proceed by Convention, because there is no single “Legislature” that represents all of the non-state areas. Because Article V currently leaves the mode of ratification up to Congress, there is no need to provide otherwise here.
E. Implementation Provisions
Section 5. The Congress shall have power to enforce this article by appropriate legislation.
The final section of the proposed amendment simply gives Congress the power to provide any necessary implementing legislation for the amendment.
125. Robert Post, Democracy, Popular Sovereignty, and Judicial Review, 86 CAL. L. REV. 429, 437 (1998). 2017] Equally American 287
IV. EMERGING POLITICAL OPPORTUNITIES FOR AMENDING THE CONSTITUTION
While the recent history of constitutional amendments has been sparse—the last ratified amendment was 1992, and before that 1971—there are actually reasons to be optimistic about the emerging political opportunities associated with a voting rights amendment to extend full representation to the nearly five million Americans living in U.S. Territories and the District of Columbia. Historically, when the political stars have aligned, voting rights amendments have actually been added to the Constitution rather quickly. The Twenty-sixth Amendment, lowering the voting age to eighteen, was proposed on March 23, 1971 and ratified by the states just over three months later on July 1, 1971. The Twenty-third Amendment, extending the right to vote for President to residents of the District, was proposed and ratified in under ten months, becoming part of the Constitution on March 29, 1961. In fact, none of the voting rights amendments took more than two years to be ratified once proposed. So what signs are there that the political stars may be aligning for extending voting rights to the nearly five million Americans living in non-state areas? Although not often recognized, residents of the Territories are actually swing voters, not committed to either party, making support of a voting rights amendment more attractive to Democrats and Republicans alike. This is critical, since expansions in voting rights and representation that overwhelming favor one party are unlikely to receive support from the other party. Partisan perceptions have been a tremendous obstacle for the District of Columbia, which is overwhelmingly Democratic.126 As 2016 Republican Presidential candidate John Kasich explained during an interview with the Washington Post editorial board on the question of congressional voting representation of the District, “What it really gets down to if you want to be honest is because they know that’s just more votes in the Democratic
126. Micah Cohen, District of Columbia’s Demographics Change, but Democratic Voting Doesn’t, N.Y. TIMES (July 4, 2012, 12:51 PM), available at http://fivethirtyeight.blogs .nytimes.com/2012/07/04/district-of-columbias-demographics-change-but-democratic- voting-doesnt/?_r=1. 288 Stetson Law Review [Vol. 46
Party.”127 On the other hand, the Territories actually have a rich history of voting across traditional party lines, and would truly constitute “swing votes” in every sense of the word. This political balance makes it more likely that bipartisan support may be found if non-state areas as a whole are the focus, rather than past proposals that would have just extended voting rights to just the District. Looking at Puerto Rico, the largest non-state area, its residents—and its five million strong diaspora living in the States—have a history of voting for both Democrats and Republicans. Its recently elected Governor Ricardo Rosselló is a Democrat, while its recently elected Congresswoman Jenniffer González is a Republican.128 Former Puerto Rico Governor Luis Fortuño was even considered a possibility for joining the Republican ticket in 2012 as Vice President.129 Puerto Rico also has a growing diaspora living throughout the United States, including more than one million Puerto Ricans in Florida. There, the eight lawmakers of Puerto Rican descent in the Florida Legislature are split evenly between Republicans and Democrats.130 In future elections, Puerto Ricans living in Florida
127. Perry Stein, Kasich on D.C. Voting Rights: ‘That’s Just More Votes in the Democratic Party’,WASH.POST (Apr. 21, 2016), https://www.washingtonpost.com/news/ local/wp/2016/04/21/kasich-on-d-c-voting-rights-thats-just-more-votes-in-the-democratic- party/. 128. Puerto Rican officials affiliate at a national level as Republicans or Democrats, but at the local level Puerto Rico’s three major political parties are organized based on political status preference, with the Popular Democratic Party (PDP) supporting “Commonwealth” status, the New Progressive Party (PNP based on its Spanish acronym) supporting statehood, and the Puerto Rico Independence Party (PIP) supporting independence. R. Sam Garrett, Political Status of Puerto Rico: Options for Congress, CONG.RES.SERVICE 13 (June 7, 2011), https://www.fas.org/sgp/crs/row/RL32933.pdf. None align directly with the national parties, but most elected officials and candidates affiliate with either the national Democratic or Republican parties, in addition to affiliating with a local party. 129. Daniel Strauss, GOP Strategists: Puerto Rico Gov. Foruno is a Sleeper Vice Presidential Pick,THE HILL (Apr. 14, 2012, 7:30 PM EDT), available at http://thehill.com/ blogs/ballot-box/presidential-races/221497-gop-strategists-puerto-rico-gov-fortuno-is-a- sleeper-vp-pick. 130. In the Florida House, there are three Puerto Ricans who are Republicans—David Santiago, Bob Cortes, and Rene Plasencia—and three Puerto Ricans who are Democrats— John Cortes, Robert Asencio, and Amy Mercado; there are two Puerto Ricans in the Florida Senate, Senate President Joe Negron, a Republican, and Victor Torres, a Democrat. Lizette Alvarez, Puerto Ricans Seeking New Lives Put Stamp on Central Florida, N.Y. TIMES (Aug. 24, 2015), http://www.nytimes.com/2015/08/25/us/central- florida-emerges-as-mainland-magnet-for-puerto-ricans.html?_r=0. The number of elected officials in Florida who are of Puerto Rican descent is likely to continue to grow in the future. 2017] Equally American 289 will continue to be a key demographic for both Democrats and Republicans, with opportunities to be gained or lost by both parties.131 So far, Republican support among Puerto Ricans in Florida is slipping;132 support for voting rights in Puerto Rico may be one way for the Republican Party to make inroads with the powerful Puerto Rican swing vote in Florida and other states. In the smaller Territories, both Republican and Democratic candidates have found success in recent elections. In Guam and the Northern Mariana Islands, the current Governors are Republicans, while the current Delegates to Congress are Democrats. This is reversed in American Samoa, where the Governor is a Democrat and the Delegate is a Republican. In the U.S. Virgin Islands, the Governor is an Independent (former Republican), while the Delegate is a Democrat. The fact that residents of the Territories are swing voters should not be surprising—these communities tend to be socially and religiously conservative with a strong history and tradition of military service.133 While residents of the Territories are unable to vote for President in November, they do fully participate in the party primaries. In 2016 on the Democratic side, the Territories had a total of eighty-six pledged delegates and twenty-seven unpledged delegates—a total greater than Virginia.134 On the Republican side, the Territories had thirty-eight pledged delegates and twenty-one unpledged delegates, more total delegates than Indiana.135 These delegates were a significant factor in the razor-
131. Molly O’Toole, How Puerto Ricans in Florida Could Seal the Fate of the Republican Party,FOREIGN POL’Y (Mar. 14, 2016), http://foreignpolicy.com/2016/03/14/how-puerto- ricans-in-florida-could-seal-the-fate-of-the-republican-party/; Nick Timiraos & Beth Reinhard, Influx of Puerto Ricans Could Shift Battleground States in Presidential Vote, WALL ST. J. (Aug. 11, 2016, 8:30 PM ET), http://www.wsj.com/articles/influx-of-puerto- ricans-could-shift-battleground-states-in-presidential-vote-1470947827. 132. O’Toole, supra note 131. 133. James Brooke, On Farthest U.S. Shores, Iraq Is a Way to a Dream, N.Y. TIMES (July 31, 2005), http://www.nytimes.com/2005/07/31/us/on-farthest-us-shores-iraq-is-a- way-to-a-dream.html; David Crary, In Far-flung US Territories, Gay Marriage Hasn’t Arrived, MSN (Mar. 14, 2015), http://www.msn.com/en-us/news/us/in-far-flung-us- territories-gay-marriage-hasnt-arrived/ar-AA9LaNg. 134. Democratic Pledged and Unpledged Delegate Summary,GREEN PAPERS, http://www.thegreenpapers.com/P16/D-PU.phtml (last modified Sept. 5, 2016, 12:47:34 PM EDT). 135. Republican Pledged and Unpledged Delegate Summary,GREEN PAPERS, http://www.thegreenpapers.com/P16/R-PU.phtml (last modified Aug. 20, 2016, 9:24:31 AM EDT). 290 Stetson Law Review [Vol. 46 close Democratic and Republican nominating contests in 2016, just as they were in the 2012 Republican primary and the 2008 Democratic primary. Ultimately, residents of the Territories and their diaspora living in the states have more political leverage than they perhaps recognize. If Democrats and Republicans in the Territories made their 2020 primary votes contingent on a candidate supporting a constitutional amendment to extend full voting rights to these areas, presidential candidates from both parties would have a strong political incentive to support such a proposal. Similarly, if the diaspora of these areas living in the states—particularly the large and growing Puerto Rican diaspora—made support for a constitutional amendment a litmus test for their vote for President in 2020, candidates from both parties would have a strong political incentive for supporting voting rights in the Territories. Indeed, with over two million Puerto Ricans living in the 2016 swing states,136 both parties’ fortunes for the foreseeable future at the national level may rise or fall with Puerto Rican swing voters. In the states with the closest margins in 2016—Florida, Pennsylvania, New Hampshire, Wisconsin, and Michigan—the Puerto Rican population was greater than the margin of difference in the presidential election.
136. Puerto Ricans in the United States: 2014,CENTRO:CENTER FOR PUERTO RICAN STUD. (April 2016), available at https://centropr.hunter.cuny.edu/sites/default/files/PDF/ STATE%20REPORTS/PR-US-2016-CentroReport.pdf. 2017] Equally American 291
Selected 2016 Swing Estimated 2014 Puerto States Rican Population137 Florida 1,005,424 Pennsylvania 439,818 Ohio 106,135 Virginia 98,254 North Carolina 89,160 Georgia 87,927 Wisconsin 62,672 Michigan 46,468 Arizona 40,012 Colorado 26,906 Nevada 22,638 New Hampshire 9,857 Minnesota 9,592 Total 2,044,863
More broadly, the diverse demographics of the Territories reflect some of the fastest growing populations in the United States. In the coming decades, Hispanic, Asian, Pacific Islander, and Afro-Caribbean communities will continue to grow into larger segments of the overall American electorate.138 At the national, state, and local level, Republicans will increasingly need a share of these voters in order to win elections, and Democrats simply cannot take these votes for granted. The racial and ethnic groups reflected in the populations of the Territories do not have deep roots with either party. However, absent active outreach to these groups by Republicans, these minority groups may be lost to the Democratic party, as has largely been the case with the African- American community. Support for a right to vote amendment in the Territories may demonstrate not only that Republicans do not fear these voters, but that they welcome them into full participation in the American electorate. Support for such a voting rights amendment may be helpful for Republicans to expand their party’s appeal to a broader demographic as population trends in America continue to shift.
137. Id. 138. Paul Taylor, The Demographic Trends Shaping American Politics in 2016 and Beyond,PEWRESEARCH CENTER (Jan. 27, 2016), http://www.pewresearch.org/fact-tank/ 2016/01/27/the-demographic-trends-shaping-american-politics-in-2016-and-beyond/. 292 Stetson Law Review [Vol. 46
V. CONCLUSION
Over two centuries after Augustus Woodward called for full representation for Americans living in the District, there is simply no justification for continuing to deny Americans who reside in non-state areas full participation and representation in the national government. Unless the voting and representational rights of these Americans are realized, the relationship between the national government and non-state areas will continue to resemble the relationship between the British Parliament and the thirteen colonies. The Founders of our nation were correct to denounce this relationship in 1776, and every American should denounce this relationship today. The Constitution should embrace the dignity and political rights of all Americans, no matter where they live. Every American living under the U.S. flag should have the right to full participation and representation in their national government, regardless of a jurisdiction’s specific political status. This is also an important racial justice issue, since more than nine out of ten of the residents of these areas are racial or ethnic minorities.139 No longer should Americans who live in the Territories or the District be treated as second-class members of the American political family. By uniting the concerns of Americans who live in the Territories with those who live in the District, the proposed voting rights amendment creates a united call for America to live up to its best constitutional principles and its greatest democratic values when it comes to these nearly five million U.S. citizens. It is long past time that the Americans who reside in non-state areas—who today represent an enduring part of America’s national fabric—be welcomed as full and equal members of “We the People of the United States.”
139. Supra note 6. 2017] Equally American 293
APPENDIX A
Voting Rights Amendment
Section 1. When the Number of Persons in a Territory of the United States shall exceed thirty Thousand inhabitants, that Territory shall appoint in such manner as Congress may direct: A number of electors of President and Vice President equal to the whole number of Representatives to the United States House of Representatives to which it would be entitled if it were a State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the Territory in which they were appointed and perform such duties as provided by the twelfth article of amendment. For purposes of choosing a President should no candidate for President receive a majority of the whole number of Electors appointed, the District constituting the seat of government of the United States together with the Territories of the United States shall be treated as though they were a State. Section 2. For purposes of representation in the United States House of Representatives, the District constituting the seat of government of the United States and, separately, each Territory of the United States with a population of thirty Thousand inhabitants, shall be treated as though it was a State. Section 3. For purposes of representation in the United States Senate, the District constituting the seat of government of the United States and, considered together, the Territories of the United States, shall each be entitled to one Senator, who shall have the same rights, duties and qualifications as Senators elected by a State. Section 4. For purposes of Article V of the Constitution, the District constituting the seat of government of the United States together with the Territories of the United States shall be treated as though they were a State. Section 5. The Congress shall have power to enforce this article by appropriate legislation.
TOO BIG TO FAIL: BANKS AND THE RECEPTION OF THE COMMON LAW IN THE U.S. VIRGIN ISLANDS
Joseph T. Gasper II*
The story of the extent to which the common law of England has been received and applied in the United States, is one of the most interesting and important chapters in American legal history. However, many courts and writers have shown a tendency simply to say that our colonial forefathers brought the common law of England with them, and there has often been little or no inclination to look further into the question.1
I. INTRODUCTION
The one-hundredth anniversary of Transfer Day—the name by which the 31st of March is known in the U.S. Virgin Islands and also a legal holiday in the Territory2—will occur in 2017. The
* © 2017, Joseph T. Gasper II. All rights reserved. Appellate and Complex Litigation Law Clerk/Law Librarian, Superior Court of the Virgin Islands, District of St. Croix. I am indebted to the Virgin Islands for the knowledge, insights, and training gained over the past six years clerking initially for the Honorable Darryl Dean Donohue, Sr. (retired), former Presiding Judge of the Superior Court of the Virgin Islands; then the Honorable Maria M. Cabret, Associate Justice of the Supreme Court of the Virgin Islands; and presently for the Honorable Harold W.L. Willocks, Administrative Judge of the Superior Court of the Virgin Islands, as well as the Honorable Douglas A. Brady, the Honorable Denise Hinds Roach, and the Honorable Robert A. Molloy, Judges of the Superior Court of the Virgin Islands. My appreciation also extends to Kristen David Adams, Professor of Law, Stetson University College of Law, for inviting me to participate in this Symposium and to the Stetson Law Review editorial staff. And, no small thanks are due to my family as well as my colleagues—Dwyer S. Arce, Anthony Ciolli, Alice Kuo, Karabo Molyneaux- Molloy, Jesse L. Reiblich, and Alisha Udwani—for their patience, insight, and support. This Article began to form for a panel presentation at the Virgin Islands Bar Association’s 2015 annual meeting and expanded with remarks given on Friday, March 18, 2016 at Stetson University College of Law at the Symposium. The opinions in this Article are the Author’s alone and do not reflect the views of the Supreme Court of the Virgin Islands, the Superior Court of the Virgin Islands, or any judge or justice of the Virgin Islands judiciary. 1. Ford W. Hall, The Common Law: An Account of its Reception in the United States, 4 VAND. L. REV. 791, 791 (1951). 2. V.I. CODE ANN., tit. 1, § 171(a) (1995 ed.) (“The following days are legal holidays in the Virgin Islands . . . March 31 (Transfer Day).”). Although no “Virgin Islands Code” as 296 Stetson Law Review [Vol. 46
United States of America had agreed to purchase the Danish West Indies from the Kingdom of Denmark on August 4, 1916.3 On March 31, 1917, the islands of St. Thomas, St. John, St. Croix (and the adjacent cays) formally changed sovereignty when Robert Lansing, Secretary of State of the United States, tendered payment (twenty-five million dollars in gold coin) to Constantin Brun, extraordinary envoy and minister plenipotentiary of the King of Denmark, in Washington D.C.4 A century later: commemorations for the centennial event are underway.5 And, while many of the events will feature the food, art, and cultures of the United States Virgin Islands on one hand,6 and the accomplishments of Virgin Islanders on the other,7 it does not
such exists—only the version of the code as annotated and published presently by LexisNexis—subsequent citations to the laws codified in the Virgin Islands Code will be abbreviated as “V.I.C.”. Cf. 1 V.I.C. § 1(b) (“This Code may be cited by the abbreviation ‘V.I.C.’ preceded by the number of the title and followed by the number of the section, chapter, or part in the title.”). However, where historical or other editorial information from the code is cited, such citations will refer to the annotated version of the code. 3. Convention Between the United States and Denmark, U.S.-Den., Aug. 4, 1916, 39 Stat. 1706. 4. See James Scott Brown, The Purchase of the Danish West Indies by the United States of America, 4 AM. J. INT’L L. 853, 853 (1916) (“On August 4, 1916, the Secretary of State, the Honorable Robert Lansing, and the Danish Minister, the Honorable Constantin Brun, signed a treaty, by the terms of which the United States agreed to purchase and Denmark to sell the Danish West Indies for the sum of [twenty-five million dollars].”). 5. See, e.g., 3 V.I.C. § 338 (2010) (establishing the “Centennial Commission of the Virgin Islands”). See also Virgin Islands of the United States Centennial Commission Act, H.R. 2615, 114th Cong. 2015 (last action, agreed to without objection by the House on April 26, 2016; received by the Senate on April 27, 2016; and referred to the Committee on Energy and Natural Resources). 6. See, e.g., U.S. Dep’t of Interior, Office of Insular Affairs, News Release: Interior Provides $500,000 to Help U.S. Virgin Islands Prepare for Centennial Celebrations in 2017 1–2 (July 21, 2015), available at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/ files/uploads/07212015-USVI-Centennial.pdf: Official events on St. Thomas, St. Croix, and St. John will range from parades, sporting events, concerts, and multi-cultural celebrations to exhibitions and festivals featuring local art, dance and food. The program and activities are organized to highlight the continuum of historical events from the Pre- Columbian Period and Indigenous Inhabitants to Columbus and Early European Arrival, Settlement of the Danish West Indies, Forced Migration of Africans, and the Transfer to the United States, leading to the present day where the U.S. Virgin Islands are proud to be a U.S. territory and her people citizens of the United States.
See also Centennial Celebrations Receive $500,000 Grant,ST.JOHN SOURCE (July 22, 2015), http://stjohnsource.com/content/news/local-news/2015/07/22/ centennial-celebrations-receive-500000-grant. 7. See Report of the USVI Transfer Centennial Commission to the Committee on Culture, Historic Preservation, Youth and Recreation of the 31st Legislature of the Virgin Islands, at 3–4 (June 29, 2015), available at http://www.legvi.org/CommiteeMeetings/ 2017] Too Big to Fail 297 appear (at least not at present) that any planning is underway to tell the story of the hundred years of law in the Virgin Islands. But this story should be told. This Article only attempts an overview and, at that, only as to the reception of the common law in the Virgin Islands over the past hundred years. The Virgin Islands first received English common law in 1921 when the Colonial Council of St. Thomas and St. John and the Colonial Council of St. Croix each adopted a statute to receive it.8 Approximately thirty years later, when the Legislature of the Virgin Islands adopted a unified code to govern the entire territory, the two statutes were merged and reenacted. But the statute was also amended to declare that the restatements of the law as promulgated by the American Law Institute would supply the Territory’s common law.9 Nearly sixty years after that, and after a local court of last resort had been established, the Supreme Court of the Virgin Islands held in Banks v.
31st%20Legislature%20Committees/COMMITTEE%20OF%20CULTURE,%20HISTORIC %20PRESERVATION,%20YOUTH%20&%20RECREATION/6-29-15/6-29- 15%202017%20Centennial/6-29-15%20Testimony%20- %20Transfer%20Centennial%20Commission%20-%20Eugene%20Petersen.pdf (“[T]he Transfer Centennial is not only about putting on events and recording history, it is especially about the people: who we are today and who we wish to become. . . . The Transfer Centennial provides us an opportunity to laud the many accomplishments of the last [one hundred] years.” (written testimony submitted by Dr. Eugene Petersen)); see also Jaime Ward, Transfer Day Commemoration Looks Toward Centennial Anniversary,ST. CROIX SOURCE (Apr. 1, 2014), available at http://stcroixsource.com/content/news/local- news/2014/ 04/01/transfer-day-commemoration-looks-toward-centennial-anniversary (“Malone said the territory deserved full votes in Congress and a fair share in federal benefits and the presidential vote. . . . ‘Unless we are treated equally then the transfer really isn’t complete, but that’s a subject for a different day,’ he said.” (quoting former Virgin Islands senator Shawn Michael Malone)). 8. See Code of Laws for the Mun. of St. Thomas & St. Jan [sic], tit. IV, ch. 13, § 6 (1921) (“The common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this ordinance.”); see also Code of Laws for the Mun. of St. Croix, tit. IV, ch. 13, § 6 (St. Croix 1921) (same). Both codes are generally referred to as the “1921 Codes.” See, e.g., Der Weer v. Hess Oil V.I. Corp., No. SX-05-cv-274, 2016 WL 1644948, at *2 (V.I. Super. Ct. Apr. 25, 2016) (noting that the codes are “commonly referred to as the 1921 Codes”); see also Mun. of St. Croix v. Stakemann & Robinson, 1 V.I. 60, 64–65 (D.V.I. 1924) (same usage). This Article will do the same. 9. See 1 V.I.C. § 4 (1995) (“The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.”), repealed by 4 V.I.C. § 21 (2005). 298 Stetson Law Review [Vol. 46
International Rental & Leasing Corp.10 that—by establishing a Supreme Court vested with the inherent authority to shape the common law—the Legislature had “implicitly repealed” the Virgin Islands’ common law reception statute.11 The impact of Banks was not immediately apparent. The Virgin Islands was not unique in 1921 when the territory adopted the common law by statute; nearly every state and territory had formally received the common law by statute (some by constitution).12 But the situation changed when the restatements became the Territory’s “default common law.”13 And the sea- change that has followed in the wake of Banks has shown the remarkable impact of Banks. The Supreme Court of the Virgin Islands is the only court in the nation to have invalidated a reception statute in its entirety, leaving only judicial precedent in its place. No court of an American colony, state, or territory has ever done this. Yet, Banks has now become too big to fail.14 While I believe that Banks was correctly decided (particularly when juxtaposed with the state of the common law of the Virgin Islands at the time), unintended consequences and subsequent extensions of Banks give reason to pause. American courts have long
10. 55 V.I. 967 (V.I. 2011). Although the Virgin Islands Supreme Court did not hold in Banks that the Virgin Islands’ reception statute, 1 V.I.C. § 4, was repealed, but rather superseded, see id. at 979, in later decisions the court recharacterized its holding. See, e.g., Simon v. Joseph, 59 V.I. 611, 622 (V.I. 2013) (citing Banks and explaining parenthetically that Banks “recognize[ed] that the statute vesting the Virgin Islands Supreme Court with ‘supreme judicial power’ implicitly repealed contrary provisions of 1 V.I.C. § 4”). 11. Simon v. Joseph, 59 V.I. 611, 623 (V.I. 2013) (citing Banks, 55 V.I. at 974–80). 12. See infra notes 33–35 (detailing the adoption of the common law of England in several states). 13. Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 HOFSTRA L. REV. 423, 424 (2004). 14. Though rooted in past economic downturns, the phrase “too big to fail” became well-known during the Great Recession that began in 2008 as a catch phrase for international and multinational banks and corporations that could not be allowed to collapse because of how intertwined they had become in national and international economies. See, e.g., Eric Dash, If It’s Too Big to Fail, Is It Too Big to Exist?, N.Y. TIMES, at WK3 (June 30, 2009) (“Today, amid the wreckage of the gravest financial crisis since the Great Depression, bigness is one of our biggest problems. Major banks, the Detroit automakers, the financial basket case that is the American International Group—the only reason these giant, sclerotic companies are still standing is that they have been deemed ‘too big to fail.’”); cf. Daimler AG v. Bauman, 134 S. Ct. 746, 764 (2014) (Sotomayor, J., concurring) (“In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly ‘too big to fail.’”). Banks, then, by analogy, is rapidly becoming too big, and too important, a part of the Virgin Islands common law to fail. 2017] Too Big to Fail 299 understood “that the whole body of the common law, existing in England at the date of the settlement of the colonies, was not transplanted, but only so much as was applicable to the colonists in their new relations and conditions.”15 So, the Supreme Court of the Virgin Islands, by analogy, should take the opportunity in an appropriate case to clarify Banks. Striking down the statute by which the common law is received leaves nothing in its place but precedent—precedent can always be overruled. Part II of this Article gives some of the history of how other jurisdictions received the common law.16 Although many scholars and historians have extensively researched and chronicled how the colonies and then the states (and later the territories before becoming states) received the common law, almost no research of similar depth has been conducted for the overseas territories:17 Puerto Rico, Guam, the Virgin Islands, the Northern Mariana Islands, and American Samoa (and perhaps the former territories of the Philippines and the Canal Zone as well).18 Part III traces
15. Richard C. Dale, The Adoption of the Common Law by the American Colonies, 30 AM. L. REG. 553, 554 (1882). 16. This broader history is given only to place the Virgin Islands within the national context. 17. Cf. William Wirt Blume & Elizabeth Gaspar Brown, Territorial Courts and Law: Unifying Factors in the Development of American Legal Institutions: Part II: Influences Tending to Unify Territorial Law, 61 MICH. L. REV. 467, 518 (1963) (surveying the law (statutory and common) of all territories that became states but passing on the insular territories) (“To give in any detail the sources of law prescribed for the unincorporated territories (Philippines, Puerto Rico, Guam, Samoa, Canal Zone, and Trust Territory in the Pacific) would extend too far this already tedious recital.”). But cf. Ray F. Bowman, III, Note, English Common Law and Indiana Jurisprudence, 30 IND. L. REV. 409 (1997) (citing the Virgin Islands as an example of how a jurisdiction could take another approach). Instead of incorporating the common law of England, the Indiana Territory could have adopted a civil law system derived from non-British sources, such as the Napoleonic Code or Roman Law. Early Hoosier lawmakers could have taken an entirely different approach and allowed the courts to find their own common law in the Indiana wilderness. It was not a forgone conclusion that Indiana would adopt the English common law. The Virgin Islands provides an interesting example. The Virgin Islands were a Danish Territory until 1917. Under Danish sovereignty, the Virgin Islands received Danish statutory and common law. After cession to the United States, Danish law continued until 1921, when the Islands adopted a statute receiving the English common law. ... Danish law still survives to some extent, particularly in the area of property relationships. Id. at 411 (footnotes omitted). 18. While both the Canal Zone and the Philippines (as former U.S. Territories) are outside the scope of this Article, they too wrestled with how and whether to receive the common law. See, e.g., John O. Collins, Canal Zone Changes to Common Law System— 300 Stetson Law Review [Vol. 46 the origins of the reception statute that the Virgin Islands adopted in the 1921 Codes, how it changed in the 1957 reception statute, and how courts construed both statutes. This background leads into Banks and its invalidation of the Virgin Islands’ reception statute. Parts IV and V discuss Banks and subsequent cases. Part VI briefly discusses some of the responses to Banks and Part VII concludes the discussion and offers two suggestions.
II. RECEIVING THE COMMON LAW
The common law means different things to different people in different contexts,19 but especially so in the context of how American states and territories received the common law. Most often, the common law is understood as the decisions issued by English and then American courts. Seen in this light, the common law is akin to a library—it sits on shelves, bound in volumes, waiting to be discovered. To find the common law one need only thumb through the right books and locate an
Long Effort to Fit Civil Law Code into American System Ends, 20 A.B.A. L.J. 233, 233 (1934): The twenty-eight year effort to fit a Civil Law code into an American law system ended on the Canal Zone October 1, 1933, when a new code of civil relations based on that of California went into effect. Legislation is now pending before the Congress to supplement the new codes; and when this is effected, the Canal Zone will become in fact a ‘Common Law’ jurisdiction, as distinguished from a jurisdiction in which the Civil Law and the Common Law were badly mixed. See also Eugene A. Gilmore, Philippine Jurisprudence—Common Law or Civil Law?, 16 A.B.A. L.J. 89, 90 (1930): There can be no doubt that Philippine jurisprudence has undergone a profound change since the establishment of American sovereignty over the Islands, and that this change is still going on. Whether the transformation has been so great that one can say that this jurisprudence is now based on the English Common Law depends, however, in large measure upon the sense in which the word is used. The basis of a thing is usually understood to be the foundation upon which it rests. It is not apparent at first sight that the present system of Philippine law rests upon a Common Law foundation.
19. Cf. Comment, Maine’s Reception of the Common Law, 30 ME. L. REV. 274 (1978). Common law has several meanings, depending upon the context in which it is used. It sometimes refers to judge-made as distinct from statute law. It may also connote the law historically administered by the royal common law courts of England (King’s Bench, Common Pleas, and Exchequer), rather than the equity courts (the Court of Chancery and the prerogative courts). The term is occasionally used as well in contradistinction to civil or canon law. Id. at 274 n.3 (quotation marks omitted). 2017] Too Big to Fail 301 appropriate opinion. But the common law is also understood in another way—as a process, as a means by which problems are worked through.20 Seen in this way, the common law is less rote and more engaging. Past decisions are relevant, not because they must be applied unquestionably and uncritically, but because they can help resolve issues raised in a given case. What the common law means is especially relevant for statutes that receive the common law. A reception statute21 is a statute that purports to receive the common law22 and to authorize courts to apply it. I say “purport” because even though courts have examined the scope of reception statutes and also considered the extent of the common law that was received, courts have not directly addressed whether reception statutes are proper or even constitutional.23 That is, if
20. See infra notes 128–30 and accompanying text (detailing the adoption of the common law of England in several states). 21. See Walter V. Schaefer, Precedent and Policy, 34 U. CHI. L. REV. 3, 5 (1966) (noting that one purpose of “a ‘reception’ statute . . . is to adopt at a single stroke the common law of England, except . . . those portions which are repugnant to our customs and institutions”); see also Hall, supra note 1, at 801–05 (referring to such statutes generally as “reception statutes” but without defining them). 22. While it is beyond the scope of this Article, it should still be pointed out that some jurisdictions define the common law to include English statutes. Hall explained this concern as follows: The various American jurisdictions may be divided into two main groups so far as their treatment of English statutory law is concerned. First, twenty states have enacted no specific provision dealing with the question and thus have left it to the courts to determine what acts of Parliament, if any at all, are to be recognized as part of the common law received. Second, most of the remaining states have specifically directed the courts to recognize as in force English statutes of a general nature passed before a specified date, usually 1607 or 1776.
As might be expected, the jurisdictions which have left it to their courts to determine the binding effect of English statutory law, have reached all sorts of results. A few courts have declared that no English statutes were received as part of the common law; some take a middle view by saying that only those English statutes are recognized which have become so incorporated into the common law so as to become a part and parcel of the system[.] Hall, supra note 1, at 816–17 (footnotes omitted). 23. Some scholars contend that reception statutes were a kind of placeholder legislation intended only for tort law. See Victor E. Schwartz, Mark A. Behrens & Leah Lorber, Tort Reform Past, Present, and Future: Solving Old Problems and Dealing with “New Style” Litigation, 27 WM.MITCHELL L. REV. 237, 253 (2000): Early state legislatures delegated the task of developing tort law to state judiciaries, because the legislatures did not have the time (or perhaps the inclination) to formulate an extensive ‘tort code.’ They faced more extensive and pressing tasks, including the formulation of the basic principles for a ‘new 302 Stetson Law Review [Vol. 46 the common law is more so the “fundamental principles and modes of reasoning”24 rather than a “body of governing principles . . . expounded by the common-law courts of England,”25 then codifying a method of reasoning seems redundant, certainly for jurisdictions whose courts already follow this mode of reasoning.26 Yet, reception statutes of a sort were included in each charter England granted to its colonies.27 And both before and after the
society,’ such as a criminal code. As many ‘reception statutes’ made clear, however, what the legislature delegated, it could retrieve at any time. While this view of the purpose of reception statutes is a practical one, it assumes too much: that early state legislatures could delegate lawmaking to their courts, that legislatures were too busy codifying other laws and lacked the time for tort law, and most importantly that statutes to receive the common law were (and presumably still are) limited to tort law. And other than their own ipse dixit the authors cite no support for claiming that reception statutes delegated law-making to courts, rather than authorized or adopted law-making by courts, or show where the text of any reception statute made it clear that legislatures could ‘take back” the common law. It is true that the colonial legislatures did initially begin to codify their laws. See Hall, supra note 1, at 795: At an early date there seems to have prevailed in every settlement a popular demand for codification of the law. . . . This desire on the part of the people for certainty in the law led to the early codification in every colony except Maryland of the legal principles most essential to the settlement of disputes in the social and economic system which existed at the time. Thus, it was the local code to which colonial judges referred as the primary source of law, and because of the scarcity of law reports the common-law decisions of English courts could not have been to any great extent the secondary source of law in the [seventeenth] century. (footnotes omitted). So, if nearly all of the early colonies undertook to promulgate their own codes—and were less dependent on the reported decisions of English courts—it begs the question why the same legislatures, after becoming states united, thought it proper to delegate making tort law to their courts. Instead, their argument seems more tailored for modern times, a point seemingly made by the very next paragraph. See Schwartz et al., supra, at 253: Because legislatures are the best equipped to decide complex public policy issues, activist judges should not believe that they ‘know best’ and substitute their own ideas of how things should be. Civil justice reform laws were instituted after much careful study and debate by legislators. They should not be overturned just because judges disagree with their public policy underpinnings. 24. Dale, supra note 15, at 560 (quotation marks and citation omitted). 25. William B. Stoebuck, Reception of English Common Law in the American Colonies, 10 WM.&MARY L. REV. 393, 393 (1968). 26. See Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 26 (2001) (explaining that “the newly independent states . . . simply did not equate ‘the common law of England’ with judicial decisions (whether pre- or postrevolutionary)”). 27. See Hall, supra note 1, at 791: 2017] Too Big to Fail 303
American Revolution,28 most of the States by statute29 or in their constitutions,30 and some of the current Territories by statute,31
It is apparent that it was contemplated by the British authorities at the beginning of the American colonial period that English law should in the main be transplanted to the American colonies. Every colonial charter granted by the Crown contained a provision authorizing the governing authorities of each plantation to prescribe ordinances, laws, statutes, etc., but invariably the qualification was added: ‘ . . . soe as such Lawes and Ordinances be not contrarie or repugnant to the Lawes and Status of this our Realme of England,’ or words of like import. (footnote and citation omitted) (emphasis added). See also Schwartz et al., supra note 23, at 252: More than [two-hundred] years ago, when colonies and territories became states, one of the first acts of state legislatures was to ‘receive’ the Common Law of England as of a certain date so it could be used as a basis for a state’s tort law. In the same legislation, called a ‘reception statute,’ state legislators delegated to state courts the authority to develop the English Common Law in accordance with the ‘public policy’ of the state. These long-forgotten statutes were the basic vehicle through which legislative power was vested in state judiciaries. 28. See Hall, supra note 1, at 797–800 (discussing the colonial charters and the approaches taken by the newly-independent colonies following the Declaration of Independence). 29. E.g.,ALA. CODE § 1-3-1 (2016); ALASKA STAT. § 01.10.010 (2015); ARIZ.REV.STAT. ANN. § 1-201 (2016); ARK.CODE ANN. § 1-2-119 (2016); CAL.CIV.CODE § 22.2 (West 2007); COLO.REV.STAT. § 2-4-211 (2015); FLA.STAT. § 2.01 (2014); GA.CODE ANN. § 1-1-10(c)(1) (2016); HAW.REV.STAT. § 1-1 (2016); IDAHO CODE ANN. § 73-116 (2016); 5 ILL.COMP. STAT.ANN. 50/1 (2016); IND.CODE § 1-1-2-1 (2016); KAN.STAT.ANN. § 77-109 (2016); MO. REV.STAT. § 1.010(1) (2016); MONT.CODE ANN. § 1-1-109 (2016); NEB.REV.STAT. § 49-101 (2016); NEV.REV.STAT. § 1.030 (2016); N.M. STAT.ANN. § 38-1-3 (2016); N.C. GEN.STAT. § 4-1 (2016); OKLA.STAT. TIT. 12, § 2 (2016); R.I. GEN LAWS § 43-3-1 (2016); S.C. CODE ANN. § 14-1-50 (2016); S.D. CODIFIED LAWS § 1-1-24 (2016); TEX.CIV.PRAC.&REM.CODE ANN. § 5.001 (West 2002); UTAH CODE § 68-3-1 (2016); VT.STAT.ANN. TIT. 1, § 271 (2016); VA. CODE ANN. § 1-200 (2011); WASH.REV.CODE § 4.04.010 (2016); W. VA.CODE § 2-1-1 (2016); WYO.STAT.ANN. § 8-1-101 (2016). Oregon’s statutory reception of the common law is discussed further below. Infra notes 52–56. 30. States receiving the common law through their constitutions include: Delaware (see DEL.CONST. § 18 (1897)); see also Steele v. State, 151 A.2d 127, 130 (Del. 1959): Except as insofar as it has been found to be inconsistent with our statutory law, the common law of England is a part of the law of this state. It was first adopted in the Constitution of 1776, Article 25. The same section was re- enacted in each of the three succeeding constitutions: Constitution of 1792, Article VIII, Section 10; Constitution of 1831, Article VII, Section 9; and in our present Constitution of 1897, Schedule, § 18.
Kentucky (see KY.CONST. § 233; Hilen v. Hays, 673 S.W.2d 713, 715 (Ky. 1984) (explaining that section 233 of the Kentucky Constitution “had the effect of adopting . . . the common law of England that was part of the law of the State of Virginia at the time”)); Maine (see, Comment, supra note 19, at 274 (explaining that “Article 10, section 3” of the Maine Constitution “read in tandem with Section 6 of the Act of Separation [between Maine and Massachusetts], has served as the conduit for the ‘reception’ or ‘incorporation’ 304 Stetson Law Review [Vol. 46 had laws expressly receiving the common law.32 But not all States explicitly received the common law by statute or constitution.33
of more than [six-hundred] years of English common law doctrine into Maine law” (footnotes omitted))); cf. McGarvey v. Whittredge, 28 A.3d 620, 630 (Me. 2011) (“When Maine achieved statehood in 1820, the Act of Separation and the Maine Constitution incorporated Massachusetts common law into Maine law.”); Maryland (see MD.CONST., Decl. of Rights, art. 5(a)(1) reprinted in MD CODE ANN., CONST. (Michie 2003 ed. & 2012 Supp.)); Massachusetts (see MASS.CONST., Part II, Ch. VI, art. VI (continuing in force all laws “usually practised [sic] on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature”)); Michigan (see MICH.CONST. art. III § 7); NEW JERSEY CONST., art. XI, § 1, ¶ 3 (continuing all prior laws in force); see also State v. Young, 390 A.2d 556, 558 (N.J. 1978) (per curiam) (quoting Colloy v. Newark Eye & Ear Infirmary, 141 A.2d 276, 287–88 (N.J. 1958) (Heher, J., dissenting)); New York (see N.Y. CONST. art. I, § 14); Pennsylvania (see PA.CONST., Sch. 1, § 2 (continuing all prior laws in force)); Wisconsin (see WIS.CONST., art. XIV, § 13 (continuing common law in force in territory of Wisconsin)). 31. District of Columbia (see D.C. CODE § 45-401(a) (2012)); the Commonwealth of the Northern Mariana Islands (see 7 N.M.I. CODE § 3401); Virgin Islands (see 1 V.I.C. § 4, impliedly repealed by 4 V.I.C. § 21). Guam does not have a reception statute as such, but Guam’s code embraces the common law. E.g., 1 GUAM CODE ANN. § 700; 6 GUAM CODE ANN. § 4205. Puerto Rico remains a civil law jurisdiction. See Powell on Real Property § 4.61: The Spanish civil-law mode of thought, its manner of expression, and its substance have survived in the present law of Puerto Rico, to a greater extent than in any portion of the United States. . . . Substantial similarities do, however, exist between the laws of Louisiana, derived largely from French civil law, and the laws of Puerto Rico with roots in the Spanish civil law. But cf. Pierluisi v. E.R. Squibb & Sons, Inc., 440 F. Supp. 691, 694 (D.P.R. 1977) (“Even though common law precedents are not obligatory on Puerto Rico courts the Supreme Court of Puerto Rico has repeatedly held that such common law can be utilized by Commonwealth courts when it is found to be useful and persuasive.” (citing cases)). It is questionable how accurate this section of Powell is since it also discusses the Virgin Islands, but cites only to the 1921 Codes. That is, the discussion regarding the Virgin Islands has not been updated for over sixty years. 32. Seminole Tribe v. Florida, 517 U.S. 44, 161 n.55 (1996) (Souter, J., dissenting). See also Powell on Real Property § 4.19 (“Connecticut enacted neither a constitutional nor a statutory adoption of the common law,” but instead “has the common law by ‘practical adoption,’ made by its courts.”). 33. Louisiana is not a common law state, but instead retained the civil law received from France. See, e.g., Powell on Real Property § 4.46 (Michael Allen Wolf ed., 2014). Ohio’s constitution continued prior laws in force, (which included the common law received by the Northwest Territory) but then in 1805 the state legislature repealed all former law. “This attempt to wipe the slate clean of specific receptions of the judicial and legislative guidance of England . . . freed Ohio from the shackles of blind conformity, but left Ohio with . . . unavoidable consequences.” Id. § 4.36; see also Cleveland, Columbus,& Cincinnati R.R. Co. v. Keary, 3 Ohio St. 201, 205 (1854): We profess to administer the common law of England, in so far as its principles are not inconsistent with the genius and spirit of our own institutions, or opposed to the settled habits, customs, and policy of the people of this State. . . . It has not been adopted by express legislative enactment, but brought to the old States by our fathers, and constantly claimed as their birthright. Its introduction here by their descendants was almost a matter of 2017] Too Big to Fail 305
Initially, “Michigan and Minnesota,” for example, “did not have explicit statutes adopting the common law as the rule of decision”; yet their “courts soon declared that the common law had been inherited and that no express adoption by the territorial or state legislatures was essential to affirm the authority of the
course, and its terms and foundation principles have been so interwoven with our constitution and laws, so blended with the remedies we afford, and so constantly enforced by our courts, that its implied recognition by the government and the people, may be fairly assumed; and if it cannot be said to be in force as the common law of England, it may not inaptly be termed the common law of Ohio. Iowa traces its reception of the common law back to the 1787 Northwest Ordinance. Powell on Real Property § 4.57. Tennessee modeled its first constitution “on the then constitution of North Carolina,” which “continued in force all laws and ordinances” including North Carolina’s reception of the common law. Id. § 4.42 (citation and quotation marks omitted). Mississippi received the common law when Congress extended the 1787 Northwest Ordinance to the Territory of Mississippi, which later became the states of Alabama and Mississippi. See, e.g., Blume & Brown, supra note 17, at 482–83 (detailing the history of the reception of the common law through the 1798 organic act for the Mississippi Territory). But unlike the State of Alabama, which adopted a statute in 1907 to receive the common law, the State of Mississippi has not. Id. Instead, Mississippi, through its constitution, continued the prior laws in force and courts apply the common law through this provision. See id. at 483: In 1849 the Supreme Court of the State of Mississippi observed: ‘When the Mississippi territory was organized, the ordinance secured the inhabitants in the enjoyment of judicial proceedings, according to the course of the common law. . . . This, together with the provision in the constitution [continuing in force territorial laws], has been considered to exclude all English statutes, and to adopt only the common law, and the statutes of our own government. (alteration in original) (second ellipsis omitted) (quoting Boarman v. Catlett, 21 Miss. 149, 152 (1849)). New Hampshire inherited the common law when it was formed from land that was part of the Massachusetts Bay Colony. See, e.g., State v. Rollins, 8 N.H. 550, 560–61 (1837): The common law, so far as it was applicable to the state and condition of the people and the circumstances of the country, was certainly introduced here for the regulation of the courts of justice on the organization of the province of New-Hampshire as a separate government; with a right, however, in the legislative power, to make provision for peace and good government, subject to a negative on the part of the crown. North Dakota’s claim to the common law is traced back to the laws formerly governing the Dakota Territory that were continued in force. See Powell on Real Property § 4.59: On the 1889 split of the Territory of Dakota into the States of North and South Dakota, the Constitution of North Dakota contained the usual clause continuing in force the prior territorial laws. . . . The existence of the common law as the basic background of the jurisprudence of North Dakota has been judicially declared. (footnotes omitted). 306 Stetson Law Review [Vol. 46 common law.”34 Similarly, Connecticut “adopted the common law by judicial decision” but only “insofar as it was appropriate for local conditions” in that State.35 Most reception statutes are still in force; some have even been amended recently.36 Generally, reception statutes are of two types. Professor Ford W. Hall37 conducted a detailed study of how the common law was received in America and noted two types of statutes the colonies adopted before the American Revolution.
At an early date following the Declaration of Independence a general convention of representatives from various counties and municipalities in Virginia adopted an ordinance which, among other things, was designed to enable the present magistrates and officers to continue with administration of justice, and for settling the general mode of proceedings in criminal and other cases till the same can be more amply provided for. This ordinance is an extremely important piece of legislation in American law inasmuch as it contained the following provision which was later to be copied in statutory enactments of many other states:
And be it further ordained, that the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of king James the first, and which are of a general nature, not local to that
34. Hall, supra note 1, at 802–03. Professor Hall notes that an argument could be made that Michigan and Minnesota received the common law by statute because they were both part of the Northwest Territory. See id. at 802 (“Michigan and Minnesota did not have explicit statutes adopting the common law as the rule of decision, unless it be considered that the Northwest Ordinance or the 1795 Act by the governor and judges of the Northwest Territory extended the common law to those jurisdictions.”). “When Minnesota was created as a territory, it received the laws of Wisconsin, including the common law, but later, repealed the laws of Wisconsin in favor of its own law.” Schwartz et al., supra note 23, at 252 n.87 (citing Cashman v. Hedberg, 10 N.W.2d 388, 390 (Minn. 1943)). Michigan later adopted the common law in its constitution. See supra note 30 (Mich. Const. art. III § 7). 35. Seminole Tribe, 517 U.S. at 161 n.55 (Souter, J., dissenting) (citations omitted). 36. See, e.g., Mo. Sen. Bill 239, § A (May 7, 2015), codified at Mo. Rev. Stat. § 1.010(2): The general assembly expressly excludes from this section the common law of England as it relates to claims arising out of the rendering of or failure to render health care services by a health care provider, it being the intent of the general assembly to replace those claims with statutory causes of action. 37. Although Hall’s article does not reference his position, his obituary explains that at the time his article was published, Hall had been an associate professor of law first with the University of Mississippi and later the University of Texas before returning to private practice. See Dallas Morning News, Obituaries, Nov. 6, 2003. Out of respect, I refer to him as professor. 2017] Too Big to Fail 307
kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations and resolutions of the general convention, shall be the rule of decision, and shall be considered in full force, until the same shall be altered by the legislative power of the colony.
...
A majority of the original thirteen states used another method in determining what law their judicial tribunals should apply, which is illustrated by the following quotation from the New Jersey Constitution of 1776: “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law.” Similar approaches to the problem were made by Delaware, Maryland, Massachusetts, New Hampshire, New York, North Carolina and Pennsylvania.38
Professor Hall then traces the reception of the common law as the nation expanded south and west, noting that the Northwest Territory borrowed Virginia’s reception statute in 179539 and that many midwestern and western territories and states followed, by adopting statutes patterned in large part on Virginia’s.40 And even when the common law reached those states where “the civil law was at one time in effect (although often somewhat feebly), and [where] Spanish and French influences are still felt today especially,” namely Florida, Texas, New Mexico, Arizona, and California,41 these states—with the exception of Louisiana, which remains a civil law jurisdiction—blended
38. Hall, supra note 1, at 798–800 (internal footnotes and ellipses omitted). 39. Id. at 801. See also Bowman, supra note 17, at 409: More than two hundred years ago, the Northwest Territory, which was comprised of present day Indiana, Wisconsin, Illinois, Ohio, and parts of Michigan and Minnesota, adopted a reception statute which brought elements of the English common law into the decisional case law of the Territory. This statute was substantially similar to a provision passed by the General Convention of Virginia Representatives and Delegates in 1776, which adopted portions of the English common law as well as statutes passed prior to 1607 in furtherance of the common law. (footnotes omitted). 40. Hall, supra note 1, at 804. 41. Id. 308 Stetson Law Review [Vol. 46
“concepts derived from the civil law, as for example the community property system” with the common law they received.42 But the most relevant jurisdiction for this Article is Oregon—how Oregon received the common law contributes to the story of the Virgin Islands’ reception of the common law. “The Oregon territory was for many years the subject of controversy between Great Britain and the United States,”43 which was eventually settled in 1846.44 By at least 1838, American settlers had been living in what would later become the Oregon Territory.45 Yet, “Oregon had no government and no laws in 1841,”46 and would not for two more years until the settlers organized themselves and, on July 5, 1843, adopted what essentially was the first organic act for a provisional government.47 In addition to dividing the land into separate districts, the July 5, 1843 Act also “adopt[ed] as law the [t]hirty- seven [a]cts taken verbatim from the laws of Iowa Territory enacted at the first session of its territorial legislature in 1839.”48 And though the Territory of Iowa had been following the common law, albeit not by statute,49 the July 5, 1843 Act nevertheless
42. Id. 43. Lawrence T. Harris, History of the Oregon Code, 1 OR. L. REV. 129, 130 (1922). 44. Id. 45. Id. at 131. 46. Frederic E. Brown, The Sources of the Alaska and Oregon Codes: Part I. New York and Oregon, 2 UCLA–ALASKA L. REV. 15, 24 (1972). 47. See Harris, supra note 43, at 134 (detailing the development of Oregon law and government). 48. Brown, supra note 46, at 25 (ellipsis, footnote, indentation, and citations omitted). 49. See Holmes, Brown & Co. v. Mallet, 1 Morris 111, 113 (Iowa 1840): We have searched the acts of our territorial legislature, and can find none. It is common law derived from different sources, if not from the principle that emigrants carry with them the common law of the country from which they emigrated, at least from the ordinance of 1787, through the medium of the organic acts of Wisconsin and Iowa. See also O’Ferrall v. Simplot, 4 Iowa 381, 399–400 (Iowa 1857): [A]ll our laws, back to the beginning of the territory, recognize—assume the common law. They would many of them, be unmeaning, senseless, without it. All the proceedings of the courts would be so, and not a judgment heretofore recovered would be valid, nor a title under it. But the ordinance of 1787, for the government of the Northwest Territory, made it the law of that country; and that was extended over Wisconsin, and then the laws of Wisconsin, over Iowa. And although the statutes of Michigan and Wisconsin were repealed in 1840, the ordinance of 1787 was not affected, but remained in full vigor as before. The Ordinance of 1787 had provided that “[t]he inhabitants of the said territory, shall always be entitled to . . . judicial proceedings according to the course of the common law.” 2017] Too Big to Fail 309 directed that “where no statute of Iowa territory applies, the principles of common law and equity shall govern.”50 Then, less than a year later, on June 27, 1844, “the provisional government . . . enacted the rest of the Iowa Code of 1839 that was not of a local character, and not incompatible with the conditions and circumstances of this country.”51 The June 27, 1844 Act expressly declared that “the common law of England and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles, shall constitute a part of the law of this land.”52 So, by 1844 Oregon had received the common law arguably through Iowa precedent, but certainly by statute. Yet, when the provisional government met again the next year, “for the framing and adoption of a constitution for Oregon,”53 the legislature, on July 26, 1845, adopted a new organic act, declaring “that the inhabitants of the territory shall always be entitled to the benefits . . . of judicial proceedings, according to the course of common law.”54 A month later, on August 12, 1845, Oregon’s provisional government reenacted its 1843 laws (unless otherwise repealed) and again “provided that the common law of England should govern in all cases where no statute law had been made or adopted.”55 A little more than a week later, on August 23, 1845, Oregon reenacted its 1844 laws, so far as they were “not incompatible with the original organic laws and not repealed by the house of representatives of 1845.”56 Why Oregon’s provisional government successively enacted and reenacted the laws it had previously adopted from Iowa is unclear. But Congress complicated matters three years later by providing an organic act and formally creating the Territory of
See An Act to Provide for the Government of the Territory Northwest of the River Ohio, 1 Stat. 50, 52 n.(a) (May 26, 1790) (reprinting 1787 ordinance) (detailing the history of the common law). 50. Harris, supra note 43, at 135 (citation omitted). Interestingly, Justice Harris notes that Samuel A. Clarke, in his book Pioneer Days of Oregon History, claimed that “the laws of Iowa were adopted for the reason that ‘there chanced to be an Iowa code in the country.’” Id. at 137 (quoting 2 S.A. CLARKE,PIONEER DAYS OF OREGON HISTORY 663 (1905)). 51. Brown, supra note 46, at 25 (quotation marks omitted). 52. Harris, supra note 43, at 138 (quotation marks and citation omitted). 53. Id. (quotation marks omitted). 54. Id. at 139 (quotation marks omitted). Note this language mirrored the Ordinance of 1787 for the Northwest Territory. 55. Id. at 140 (footnote omitted). 56. Id. 310 Stetson Law Review [Vol. 46
Oregon. “The Oregon Organic Act passed by Congress in 1848 organized the territory and recognized the validity of the laws passed by the provisional government.”57 Of course, Congress did not address which laws remained in force; and once the territory was established, Oregon’s “first Territorial Legislature adopted Iowa statutes again, and began one of the most amusing controversies in American legal history.”58 The laws adopted by the provisional government—as distinguished from the territorial government—were known as the “Little Blue Book” because the laws borrowed from Iowa’s 1839 statutes “were bound in a volume sided with blue boards.”59 In contrast, the laws adopted by the territorial government— again from Iowa but from its 1843 revised code—were known as the “Big Blue Book.”60 “The War of the Blue Books became quite celebrated, indeed far out of proportion to the actual differences between the two codes,”61 and the controversy was not resolved
57. Brown, supra note 46, at 26. See also Lawrence T. Harris, History of the Oregon Code: The Controversy About the Seat of Government and Blue Books, 1 OR. L. REV. 184, 184 (1922) (hereinafter Harris II) (“The act of congress of August 14, 1848, organizing the territory of Oregon continued and preserved the laws of the provisional government until altered or repealed by the legislative assembly of the territory of Oregon.”). 58. Brown, supra note 46, at 26. 59. Id. at 25. 60. Id. at 26. 61. Id. Brown notes one effect of the controversy. “The Blue Book controversy,” he explains, “is a famous one, which may well explain the notion existing in some quarters today that the present laws of Oregon derive from Iowa.” Id. “This is demonstrably untrue,” he argues, because “the modern laws of Oregon and Alaska are the descendants of the Statutes of Oregon (1854), most of which were copied from the Revised Statutes of New York (1829, 1836, 1846–1848, 1852).” Id. at 26–27. The source of Oregon’s laws has been relevant to the Virgin Islands in the past. See, e.g., Foreign Commerce v. Tonn, 789 F.2d 221, 228–29 & n.6 (3d Cir. 1986) (Hunter, C.J., dissenting) (noting Alaska, Oregon, and Iowa as possible origins of Virgin Islands’ usury statute and taking issue with the majority’s failure to follow Berkeley v. West Indies Enters., Inc., 480 F.2d 1088 (3d Cir. 1973), which held that borrowed statutes should be construed according to the meaning given by the highest court before adoption). See also Bermudez v. V.I. Tel. Corp., 54 V.I. 174, 190 n.12 (V.I. Super. Ct. 2011): As Territorial Alaska’s law was modeled almost exclusively on that of Oregon . . . [t]he Court therefore acknowledges the possibility that review of Oregon case law might further illuminate Alaska’s private nuisance statute, and therefore the Virgin Islands statute as well. But Oregon was also once a territory and its laws were also borrowed from elsewhere. . . . As Territorial Alaskan courts had occasion to weigh Oregonian jurisprudence on their private nuisance statute, this Court declines to reach through Alaska to Oregon, and perhaps further back in time, in seeking further illumination of the private nuisance statute borrowed by the U.S. Virgin Islands. (internal citation omitted). 2017] Too Big to Fail 311 until 1853 when the territorial legislature scrapped Iowa and went almost entirely with New York.62
After a flirtation with the statutes of Iowa, territorial Oregon settled upon a code copied in large measure from the Revised Statutes of New York, originally codified by the “Butler” New York Law Revision Commission of 1826–1828. The major borrowing took place in Oregon in 1853–1854, when a commission headed by J. K. Kelly adopted much of the New York statutory law for the new territory, retaining of the older Oregon law only the laws relating to wills that had been taken from the Missouri statutes by the 1859 Oregon Legislative Assembly, and a few provisions of a local character. Oregon’s celebrated Judge Matthew P. Deady and others reworked the Oregon law in 1862–1864, using as their major sources the 1854 codes and the draft codes prepared for New York by a commission headed by David Dudley Field. The Field commission had also relied heavily on the older New York statutes originating with Butler’s commission in 1826–1828.63
This history is relevant to the Virgin Islands because Alaska later borrowed Oregon’s laws, and the Virgin Islands, in large part, borrowed Alaska’s laws.64 “Congress brought laws based upon Oregon’s to Alaska in slow and stuttering stages between 1884 and 1900, after a neglectful period following the purchase of Alaska from Imperial Russia.”65 And as had occurred with Oregon and many later territories, Congress largely forgot about the Territory of Alaska. In fact, “for the first seventeen years under the American flag, no provision was made for any sort of civil government for Alaska.”66 Then, in 1884 Congress passed the Alaska Government Act,67 which provided in part “[t]hat the general laws of the State of Oregon68 now in force are hereby declared to be the law in said
62. Brown, supra note 46, at 27. 63. Frederic E. Brown, The Sources of the Alaska and Oregon Codes: Part II: The Codes and Alaska, 1867–1901, 2 UCLA–ALASKA L. REV. 87, 87 (1973) (hereinafter Brown II). 64. See infra note 82, at 779 (detailing the U.S. Virgin Islands’ adoption of the Alaskan code). 65. Brown II, supra note 63, at 88. 66. Id. 67. Id. at 90. 68. Brown notes that Congress’s choice of Oregon was not deliberate. See id. at 91: 312 Stetson Law Review [Vol. 46 district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States.”69
However, what law was “applicable” and what was not? The Attorney General of the United States made it clear to the new governors that he could not decide the question, so the new Alaskan officials had to decide as best they could until their authority might be challenged in a federal court case.70
The situation did not change until gold was found in the Klondike, increasing Alaska’s population drastically.71 “The new Alaskans felt they needed a more effective civil government, and a more realistic body of law.”72 Not surprisingly, the first laws considered were criminal laws. In 1897, Congress authorized a commission “to revise and codify the criminal and penal laws of the United States.”73 “[T]he Commission . . . [began] their work with a penal code and a code of criminal procedure for Alaska.”74 Their efforts saw proponents of common law pleading square off against proponents of code pleading.75 Debate turned to whether “definitions . . . in the substantive law of crimes”76 should be included. Within this debate, the question arose whether the common law even applied to the Territory of Alaska. One congressman moved to strike the criminal definitions from the proposed bill; another objected. The following debate took place:
Even the choice of Oregon law seems to have been fairly arbitrary. The Senate sponsor of the 1884 Act admitted in a colloquy on the Senate floor that the reporting committee had not ‘made any careful study of the laws either of the state of Oregon or of the Territory of Washington,’ but had assumed the Oregon Code to be preferable because the Senators supposed that it was ‘in a more mature and satisfactory shape.’ Senator Beck of Kentucky had thought that the laws of the Territory of Washington would have been more applicable, but his view did not prevail. (citation and footnote omitted). 69. An Act Providing a Civil Government for Alaska § 7, 23 Stat. 24, 25–26 (May 17, 1884). 70. Brown II, supra note 63, at 90. 71. Id. at 92. 72. Id. 73. Id. (quotation marks omitted). 74. Id. 75. Id. at 97. 76. Id. 2017] Too Big to Fail 313
Mr. WARNER. Mr. Speaker, Alaska has never been under the common law, and unless we have these definitions or some definitions of these words they will have none to be governed by. These definitions are taken from the Oregon code and have been used and applied in Alaska since 1884, and I am of the opinion that they should remain.
Mr. PAYNE. You mean that the common law has not been applied by statute?
Mr. WARNER. It has not been applied by statute, and there is nothing in this code law applying the common law. If we strike this out, we shall have to insert another section having the common law apply where not otherwise provided.
Mr. UNDERWOOD. The gentleman from Illinois does not contend that the common law does not apply to Alaska and has not applied to Alaska at all times since the Territory was taken in?
Mr. WARNER. I understand that it does not apply to acquired territory, or did not at the time this was acquired in 1867.
Mr. MOODY. Where the code uses words known to the common law it would be easy to resort to that source of authority for a definition instead of indicating one which might be incomplete.
Mr. WARNER. These sections defining the meaning of these words have been in force since the Oregon code was placed in force there.
Mr. GIBSON. Mr. Speaker, I suggest that in lieu of section 216 and these other sections we adopt the following: “The common law of England, as adopted and understood in the United States, shall be in force in said district, except as modified by this act.”
Mr. WARNER. That will do.77
The language Representative Gibson offered was adopted and became the reception statute for the Territory of Alaska, but only for Alaska’s criminal code. Congress later adopted a second,
77. Id. at 98 (quoting 32 Cong. Rec. 508 (1899)). 314 Stetson Law Review [Vol. 46 more general reception statute for Alaska’s civil code: “So much of the common law as is applicable and not inconsistent with the Constitution of the United States or with any law passed or to be passed by the Congress is adopted and declared to be law within the district of Alaska.”78 But it was Alaska’s criminal reception statute that found its way to the Virgin Islands.
III. RECEPTION OF THE COMMON LAW IN THE VIRGIN ISLANDS
One of the first statutes Congress enacted after the United States purchased the Danish West Indies from the Kingdom of Denmark provided:
[U]ntil Congress shall otherwise provide, in so far as compatible with the changed sovereignty . . . the other local laws, in force and effect in said islands on the seventeenth day of January, nineteen hundred and seventeen, shall remain in force and effect in said islands, and the same shall be administered by the civil officials and through the local judicial tribunals established in said islands, respectively; and the orders, judgments, and decrees of said judicial tribunals shall be duly enforced. With the approval of the President, or under such rules and regulations as the President may prescribe, any of said laws may be repealed, altered, or amended by the colonial council having jurisdiction.79
The laws in effect in 1917 were Danish laws, which included “[t]he Common and Statute Law of Denmark.”80 But what Danish
78. McFarland v. Alaska Perseverance Mining Co., 3 Alaska 308, 322 (D. Alaska 1907) (quoting Alaska Civ. Code § 367 (1900)). This is substantially the same version Alaska carried forward after becoming a state. See ALASKA STAT. § 01.10.010 (“So much of the common law not inconsistent with the Constitution of the State of Alaska or the Constitution of the United States or with any law passed by the legislature of the State of Alaska is the rule of decision in this state.”). 79. Act of Mar. 3, 1917 § 2, 39 Stat. 1132, 1132–33, codified as amended at 48 U.S.C. § 1392 (2012). 80. Colonial Law of Apr. 6, 1906, § 67, reprinted in V.I. CODE ANN. (historical documents preceding tit. 1) (1995). As provided by the 1917 Act, President Woodrow Wilson issued two executive orders, both nearly identical, respecting the Colonial Councils’ right to amend local laws. Both orders provided: Repeals, Alterations and Amendments of local laws of Virgin Islands of United States by Colonial Council having jurisdiction, shall be effective and enforced when, and to the extent, said Repeals, Alterations and Amendments are approved by the Governor of said islands, the Governor to state specifically in each case whether his approval is in whole or in part, and if in part only, what 2017] Too Big to Fail 315 common law encompassed at the time was and is still unclear. Danish law does recognize that judicial precedent has relevance.81 Yet, whether decisions of higher courts in 1917 were binding on lower courts is not clear. What is clear, however, is that the Colonial Councils, once sovereignty changed, exercised the authority Congress gave them to repeal, alter, and amend their laws. As John D. Merwin, former Governor of the Virgin Islands, explained:
Inasmuch as the islands lacked a formal system of laws at the time of the transfer in 1917, it was decided by the early colonial councils . . . that separate codes of laws should be drawn up for the two municipalities—one for the Municipality of St. Thomas and St. John, and another for the Municipality of St. Croix. These codes were developed by two young lawyers, Leslie Curry and Denzil Noll, both of whom had come to the U.S. Virgin Islands from the Territory of Alaska soon after 1917.
Taking as their lodestar the Alaska Code which, in turn, was derived from the Oregon Code, these two young lawyers compiled two separate codes—one for each municipality. These codes closely paralleled each other and presented a creditable basis for the administration of justice in the early government. They were adopted by the separate Colonial Councils during the year 1921.82
part is approved and what part not approved. The President reserves the right to disapprove and set aside any enactments of the Colonial Council. Exec. Order 2619 (Aug. 24, 1917); see also Exec. Order 2777 (Dec. 26, 1917) (same). The Governor of the Virgin Islands on March 17, 1921, had approved chapters one, two, and three of title I, except section 1 of chapter 5 of title 1 because the President had “set aside this section of the St. Croix Code on the ground that it appeared to him unnecessary to appoint, to support, and to maintain two judges, when as is actually the case in this instance, there are only approximately 26,000 people within the jurisdiction of the Court.” 1921 Codes, tit. 1, ch. 3, p. 7 (approval note by J.W. Oman). Governor Oman also approved titles II, III, IV, and V on the same day. Id. at 406. Whether President Wilson took further action following the approval by the governor—or whether any subsequent presidents did—is unknown. 81. See JOSEPH LOOKOFSKY,PRECEDENT AND THE LAW IN DENMARK (Ewound Hondius ed., 2006) (detailing Danish common law). 82. John D. Merwin, The U.S. Virgins Come of Age: A Saga of Progress in the Law, 47 ABA J. 778, 779 (Aug. 1961). Governor Merwin’s claim that the Territory lacked a formal system of laws is questionable. But cf. Report of Joint Commission on the Conditions of the Virgin Islands 16, H. Rpt. 734 (Jan. 1920): 316 Stetson Law Review [Vol. 46
Whether the Colonial Councils, in adopting Alaska’s reception statute along with the other laws borrowed from the then-Territory of Alaska, intended to abrogate whatever aspects of Danish common law that remained in force in the Virgin Islands law,83 or whether the Councils, instead, intended only to allow the newly-created Virgin Islands courts system to apply both English common law and Danish customary laws84 is unknown. What Denzil Noll and John Leslie Curry had in mind while drafting the 1921 Codes (and, by extension, what legislative intent was in adopting these “Noll-Curry” codes) is unclear. Governor Merwin implied that Noll and Curry drafted both codes entirely, perhaps as a sort of “code commission,” and then delivered the draft codes to the respective councils for approval.85
The laws in the Virgin Islands date back three centuries and to a large extent are inapplicable to our form of government. The laws are made by colonial councils. St. Thomas and St. John comprise one council district with fifteen members, four of whom are appointed by the governor and the others elected. St. Croix has a council of eighteen members, five of whom are appointed by the governor and the balance elected. The laws are antiquated Danish laws. There are men occupying positions in the council of the Virgin Islands who took advantage of the act to retain Danish citizenship under the provisions of the treaty between Denmark and the United States. This should not be permitted; it is un-American. The judge of the court is police master, a member of the colonial tax commission, a member of the colonial council, also is in charge of deeds and mortgages of record. As police master he institutes cases which are tried before him. This is an un-American policy. There is a great need of an entire new code of laws. This has been prepared and we trust soon may be adopted. 83. Cf. Callwood v. Kean, 2 V.I. 526, 542 (3d Cir. 1951): The Danish law in force when the island was one of the Danish West Indies remained in force, after the change of sovereignty, until July 1, 1921 when it was superseded by the Code of Laws of the Municipality of St. Thomas and St. John which substituted for the Danish law rules of law based upon the common law of England as understood in the United States. (footnote omitted). 84. But cf. id. at 542 n.6 Rights to property in St. Thomas which vested under the Danish law in force in that island prior to July 1, 1921 were not affected by the change of sovereignty or by the substitution on that date of the rules of the common law. Accordingly the rules of the Danish law in force when such rights to property vested define those rights today. As to the Virgin Islands those Danish rules are domestic, not foreign, law. (internal citations omitted). 85. Merwin, supra note 82, at 779–80. Governor Merwin’s article notes that he “was born in St. Croix, Virgin Islands, in 1921,” so his characterizations of the situation in 1917 were not from personal knowledge. Id. at 780. 2017] Too Big to Fail 317
This had occurred in other jurisdictions,86 and could have occurred in the Virgin Islands as well.87 Yet, although it is beyond the scope of this Article to undertake a study like those that examined the sources of Alaska’s codes and Oregon’s codes, for example, it cannot be overemphasized that the 1921 Codes were not based entirely on the laws of the Territory of Alaska.88 In fact, the 1921 Codes were more of a compilation of laws from multiple jurisdictions (including the Danish West Indies),89 rather than a wholesale copy of the laws of the Territory of Alaska, which undermines claims that Noll and Curry drafted the 1921 Codes on their own,90 and perhaps without any help from the Colonial
86. See, e.g., Brown II, supra note 63, at 195–96 (explaining that the Blue Book controversy “was terminated by a resolution passed by the legislature in January, 1853, providing for the selection of three commissioners to prepare a code of laws to be submitted to the succeeding legislative assembly”). 87. See Report of Joint Commission on the Conditions of the Virgin Islands 8, H. Rpt. 734 (Jan. 1920) (“Some time ago a commission to revise the laws was appointed. This commission has practically completed the work, which is in every way creditable and which will bring about a thorough Americanization of the laws, if adopted.”). 88. See, e.g., People v. Simmonds, 58 V.I. 3, 17–18 (V.I. Super. Ct. 2012): But the 1921 Codes did not merely duplicate the Alaskan codes. Some laws were modified before being incorporated in the 1921 Codes, presumably to adapt those laws to this jurisdiction. In one instance, Danish law was retained and merged with Alaskan law. Even where a Virgin Islands statute mirrored Alaskan law, Alaska, itself, may have borrowed its statute from another jurisdiction. Thus, while the 1921 Codes were borrowed largely from the Territory of Alaska, Alaska is not the only jurisdiction the Virgin Islands borrowed from. Statutes were taken from other jurisdictions such as Montana, Iowa, New York, and as further discussed below, Puerto Rico. (footnotes omitted); see also People v. Charles, 1 V.I. 201, 211 (D.V.I. 1929) (noting that “a large part of this code (1921) was actually, though indirectly, taken” from “New York, a code state”). 89. See Brown, supra note 46, at 52, 79 (and cases cited therein) for the different jurisdictions the 1921 Codes were borrowed from. See also Granville-Smith v. Granville- Smith, 349 U.S. 1, 9 (1955) (“The Virgin Islands divorce law, with the exception of substantive grounds drawn from Danish law, copied that of Alaska.” (internal citations omitted)). 90. Cf. Herman E. Moore, The Virgin Islands and Its Judicial System, 3 NAT’L BAR J. 349, 354 (1945): The first comprehensive local Codes of Laws for the people of the Virgin Islands were authorized and enacted in 1920 and 1921 by the respective municipal councils. . . . These Codes were, for the most part, similar; but they were not identical and they have since, by amendments, shown many differences. They were largely copied from the Code of Alaska. The lawyer commissioned to draw them for legislative enactment had just come to the Virgin Islands from an assistant district attorneyship in Alaska, and he embodied in them practically all the provisions of the Alaskan Code with which he was familiar and which he had brought with him. 318 Stetson Law Review [Vol. 46
Councils or local Virgin Islands attorneys. But the most important statute (for purposes of this Article) that was taken verbatim from Alaska was the reception statute Congress enacted for that Territory. The first reception statutes for the Virgin Islands both provided: “The common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this ordinance.”91 Only one change was made: Alaska’s reception statute concluded with the word “Act.” And whatever the intent of the Councils may have been, once the reception statutes took effect, Virgin Islands courts rejected Danish law for “‘the common law of England as adopted and understood in the United States,’”92 particularly in criminal cases. In civil cases, Virgin Islands courts did not ignore Danish common law outright at first. For example, in a 1923 St. Croix decision, Fleming v. Hageman,93 the District Court of the Virgin Islands,94 in rejecting the defendant’s argument that lost profits could not be recovered through a breach of contract action, looked to the law of the Lesser Antilles generally as well as British and American law.95 Similarly, in a 1924 St. Croix case, Stakemann v. Olsen,96 the District Court of the Virgin Islands again tried to harmonize “[t]he law of Denmark and the Virgin Islands” with English and American common law concerning public auctions.97
(emphasis added). 91. 1921 Codes, tit. IV, ch. 13, § 6. 92. People v. Charles, 1 V.I. 236, 238 (D.V.I. 1929) (quoting 1921 Codes tit. III, ch. 13, § 6). See also In re Gibbons, 1 V.I. 57, 59–60 (D.V.I. 1924) (granting writ of habeas corpus and vacating judgment of the local police court because the conviction was obtained in violation of the defendants’ right not to be compelled to be witness against himself). 93. 1 V.I. 32 (D.V.I. 1923). 94. The District Court of the Virgin Islands was the court of general jurisdiction when the 1921 Codes were in effect. 95. See Fleming, 1 V.I. at 37–38: Wherever damages have been caused by breach of contract, and are such as may reasonable be supposed to have entered into the contemplation of the parties, the delinquent party is liable therefor. This may fairly be stated to be the law of all of the Lesser Antilles, for it is a principle laid down in the Code Napoleon, which is the law of the French and Dutch colonies; as well as in the leading English case of Hadley v. Baxendale . . . which is law in England and in the British colonies where English law obtains. In addition, it is law in most, if not all, American jurisdictions. The principle of Hadley . . . is also found in the decisions of the civil law jurisdiction of Louisiana. (internal citations and paragraph indentation omitted). 96. 1 V.I. 47 (D.V.I. 1924). 97. Id. at 50. 2017] Too Big to Fail 319
In contrast, a year later, in a 1925 St. Croix case, Morton v. Latimer,98 the court never referenced which Danish law governed the spread of fire, and instead acknowledged the general rule at common law, which was akin to strict liability, and which had been modified by England’s Parliament. Although the court concluded that the “general principle of both America and England” now limits liability to negligence in starting the fire or failing to prevent it from spreading.99 So, whereas the court in Fleming and Stakemann attempted to determine what the local, Virgin Islands rule might have been before considering the American or English common law rules, the court in Morton did not. In fact, Morton went beyond the common law (if limited to caselaw), and followed decisions that had recognized that the Parliament of Great Britain had modified the common law in 1707.100 Yet, Morton did not consider whether
98. 1 V.I. 96 (D.V.I. 1925). 99. Id. at 100. 100. See id. (“While at common law if a person’s house or field was burned by fire coming from his neighbor’s property, the neighbor would be responsible therefor albeit the fire was occasioned by accident, such is not the law in America. The English Parliament recognized the hardship of this rule and finally modified it.” (citing Cincinnati, N.O. & T.P. Ry. Co. v. S. Fork Coal Co., 139 F. 528 (6th Cir. 1905) (additional citations omitted))). Notably, the Cincinnati case cited in Morton had explained that the common law rule was modified “by the statute of 6 Anne.” See Cincinnati, 139 F. at 531: By the ancient common law every man was obliged to keep his fire safe, and if one was started upon his premises by the act of himself or any one for whom he was responsible, and spread and injured his neighbor, except by some inevitable accident which could not have been foreseen, he was responsible without regard to the question of negligent origin. . . . But . . . by the statute of 6 Anne, c. 31, it was provided the action should not lie if accidentally begun. This statute of Anne constitutes a part of the common law of most of the states, and thus, when the matter is not the subject of regulation by state statute, the liability at common law is confined to a fire which was started through culpable negligence, which spreads and destroys property adjacent. (citations omitted). But the parliament that passed this act in 1707, preventing the accidental spread of fire, was the Parliament of Great Britain, not the English Parliament. American courts have acknowledged the difference between the Parliaments of England and of Great Britain and rejected the incorporation of British statutes into the English common law by America. See, e.g., Hall, supra note 1, at 821–22: The Iowa court has adopted a unique approach in interpreting its territorial act. In an 1857 case the Iowa court distinguished ‘Great Britain’ from ‘England’ and declared that Great Britain did not come into existence until 1707 when Scotland was united with England; thus, the territorial act was construed to eliminate only acts of Parliament enacted since 1707. (citing O’Ferrall v. Simplot, 4 Iowa 381 (1857) and Pierson v. Lane, 14 N.W. 90 (Iowa 1882) (footnotes omitted)). 320 Stetson Law Review [Vol. 46 the 1921 reception statutes allowed for the reception of English (or more accurately British) statutes into Virgin Islands common law, whether directly or indirectly, through Alaska precedent. Perhaps the most interesting decision issued while the 1921 Codes were in effect, though one that did not concern the reception statute directly, was a 1936 St. Croix case, People v. Francis.101 Joel Francis, charged with second-degree murder, moved to dismiss the charge, claiming the 1921 Code for St. Croix was invalid.102 He raised a direct attack on the entire Code itself, arguing that it was void because the military governor of the Virgin Islands at the time, Rear Admiral Joseph W. Oman, had appointed some of the members of the Colonial Council of St. Croix.103 Two questions arose as a result: whether a governor had authority to appoint members of a legislature and, if not, whether the laws the legislature passed were invalid.104 Remarkably, the Francis court grounded its reasoning solidly in American values:
At the outset it is to be accepted that this is an American Territory. This is an American Possession. It is not a Danish Possession. Not Danish but American principles of law are to be followed. However much it may have been the intention of Congress to continue the system which was in force at the time when the Territory was taken over, it still remains true that an American system of administration and American system of laws was actually brought here to the Virgin Islands when the Act of March 3, 1917 . . . was enacted.
It must not be forgotten that the principles of government of the United States are different from those which obtain in Denmark. The latter are monarchal; the former are democratic. The latter provide for a Chief Executive who is supreme over the Legislature and the Judiciary. The former is a government of divided powers. The Executive, the Legislative and the Judiciary are coordinate and equal in regards to each other. One may not encroach on the functions of the others. All three are subject to the Constitution of the United States and the principles of government which that Constitution contains.
101. 1 V.I. 359 (D.V.I. 1936). 102. Id. at 364. 103. Id. at 365. 104. Id. 2017] Too Big to Fail 321
Congress intended . . . to continue so much of the former Danish laws as was compatible with the changed sovereignty. That means the continuance of such laws as were compatible with the ideals and ideas of American government. It has always been the American principle to keep the three great departments of government separate and apart. In the federal government the President does not appoint members of Congress. In no State does the Governor appoint members of that State Legislature. In no other territory or possession of the United States does the Governor appoint the local legislative assembly. The entire history of our country shows that the intention of our people has always been to keep the legislative branch of the government as far as possible from executive control. There is no reason to believe that Congress did not intend to place the principle of the separation of powers into the legal system enacted for the Virgin Islands. Only an express and unmistakable statement of Congress that our historic tradition should be departed from can lead us to believe that the American doctrine of the separation of the powers of government is not in force and effect in the Virgin Islands.105
Against this backdrop, and after consulting all possible sources, the court concluded that Governor Oman had exceeded his authority when he appointed members of the Colonial Council of St. Croix.106 Yet, despite all of the rah-rah for America, it was Danish law (albeit statutory) that saved the 1921 Codes.107 Because Congress had continued in force the Danish laws in effect, the Colonial Law of 1906 remained in force. And the court turned to this law in Francis to save the 1921 Codes. The Colonial Law had provided that “[n]o resolution can be adopted by any of the Colonial Councils, when less than half of its members are present.”108 And since “resolution” in Danish means “decision or to decide,” the court concluded that the St. Croix Colonial Council’s decision to adopt the 1921 Code—even though some of its members were illegally appointed by the governor— was still valid because all of the councilmembers “properly
105. Id. at 365–66 (emphasis added) (internal citations omitted). 106. Id. at 381 (“[W]e must, and we do, hold that the Governor of the Virgin Islands did not have the power to appoint members to the Colonial Council which enacted Titles 2, 3, 4 and 5 (II, III, IV and V) of the Code of Laws for the Municipality of St. Croix on May 17, 1920 (published in 1921).”). 107. See id. at 384 (extending its holding to include the 1921 Code of St. Thomas). 108. Id. at 383 (quotation marks and citation omitted). 322 Stetson Law Review [Vol. 46 elected and duly qualified” had voted in favor.109 So, in the end, Danish law saved the 1921 Codes, including the Virgin Islands’ first statutes receiving English common law. Questions about the influence of Danish law continued for some time after the 1921 Codes were enacted, almost always occurring in civil cases, including probate proceedings, and mostly in reference to real property.110 But over time, except when a statute was traced back to Danish statutory law,111 courts either lost interest in, or no longer found it necessary to,112 (or
109. Id. at 383–84. 110. See, e.g., Harris v. Mun. of St. Thomas & St. John, 3 V.I. 502 (3d Cir. 1954) (questions concerning tort liability and government immunity); Callwood v. Kean, 2 V.I. 526, 542–55 (3d Cir. 1951) (questions concerning community property and surviving spouse); see also id. at 549–50 [U]nder the Danish law a husband who by his will conferred upon his surviving wife the right to possession of the community property had also the right to stipulate that she could dispose of that property only with the consent of an individual who in Danish is called a ‘Tilsynsvaerge’ which may perhaps best be rendered in English as ‘guardian’. This concept of a guardian to advise a widow in the management of her property is very ancient in the Danish law, and the concept developed in more recent times to the point that a husband was empowered to name such a guardian in his will if by that instrument he authorized his widow to retain possession of their joint estate. (footnote omitted); Williams v. Scrawder, 2 V.I. 241, 243 (D.V.I. 1952) (questions concerning fencing of land) (“The old Danish ordinance of 1886 on ‘Fencing’ refers to the duty of adjoining landowners to defray ‘conjointly’ the expenses of erecting a fence on the boundary line and has other provisions for forcing contributions by landowners to the cost of fences erected by one owner . . . .”); In re Estate of Dyer, 2 V.I. 375 (D.V.I. 1945) (questions concerning inheritance tax); In re Estate of Sebastian, 2 V.I. 38, 41 (D.V.I. 1942) (questions concerning community property). 111. See, e.g., Gov’t of the V.I. v. Torres, 3 V.I. 333 (D.V.I. 1958) (construing criminal statutes carried forward from Danish laws); Hendry v. Hendry, 14 V.I. 610, 613–18 (V.I. Terr. Ct. 1978) (construing divorce statute but also discussing different historical traditions in Danish law (incompatibility) and English law (fault) for granting a divorce). 112. To be clear, such sentiments throughout this Article should not be taken as—and are certainly not intended as—disrespect for the Virgin Islands judiciary or any of its current or past members. That said, many of the members of the Virgin Islands judiciary (especially in the early years after 1917) were not (and some still are not) Virgin Islanders. Because “Virgin Islander” can be a politically-loaded term locally, I mean it broadly in the sense of persons born in or living in the Virgin Islands and also committed to and concerned about its growth and prosperity. Cf. Jonathan G. Cedarbaum, The Proposed Virgin Islands Constitution from the Fifth Constitutional Convention, Statement to Subcomm. on Insular Affairs, Oceans and Wildlife (2010) (“[S]everal provisions of the proposed constitution give special advantages to ‘Native Virgin Islanders’ and ‘Ancestral Virgin Islanders.’ These provisions raise serious concerns under the equal protection guarantee of the U.S. Constitution, which has been made applicable to the USVI by the Revised Organic Act.” (internal citations omitted)). Putting aside the question of who qualifies to be called a Virgin Islander, who decided and developed Virgin Islands precedent is still relevant largely because the lion’s share fell to the District Court of the Virgin Islands to develop, first in its former capacity as the court of general jurisdiction for 2017] Too Big to Fail 323
the Territory, and later in its appellate capacity over the Territorial (now Superior) Court of the Virgin Islands. And since all federal judges—including federal judges in territories of the United States—are appointed by the President of the United States and confirmed by the United States Senate, it also meant that federal judges presided over Virgin Islands divorce cases, guardianship and child custody cases, probate proceedings, as well as civil litigation and nearly all serious criminal cases as the trial court. Even after the Legislature of the Virgin Islands vested jurisdiction over all local civil and almost all criminal cases in the Territorial and later Superior Courts, the District Court of the Virgin Islands, in its appellate capacity, still determined whether local judges got it right. Quite often, many of those judges were also not Virgin Islanders. Often, intentionally or unintentionally, federally-appointed judges brought national politics with them. For example, two months after Judge Albert Levitt decided Francis, supra note 101, President Franklin D. Roosevelt directed him to submit his resignation. See Judge Levitt is Shifted in Virgin Islands Fight,DAILY NEWS (St. Thomas, V.I.), Aug. 15, 1936, at 1 (“Judge Levitt submitted his resignation to the President a month ago, charging ‘interference’ with his court by Governor Lawrence W. Cramer and Interior officials. Officials were silent on Leavitt’s request to President Roosevelt for an investigation of his charges against Cramer and other officials.”). See also Diane Russell, Some Ethical Considerations of Judicial Vacancies: A Case Study of the Federal Court System in the United States Virgin Islands, 5 GEO. J. LEGAL ETHICS 697, 699–701 (1992) (discussing problems the Virgin Islands experienced in the 1980s when national party politics stalled President Reagan’s judicial nominations at a time when the District Court still had jurisdiction over most Virgin Islands cases). Since 1988, the U.S. Court of Appeals for the Third Circuit has been forced to shuttle judges to the Virgin Islands from all over the country to handle the court load in the territory. The judicial caseload has grown to monstrous proportions. Because of the number of criminal cases which require disposition under the Speedy Trial Act, there is a significant backlog of civil cases. There are two new judges an average of every four weeks. Naturally, this high turnover of judges, coupled with an incredible backlog of civil cases, has caused severe problems in the Virgin Islands legal community. The federal government is spending thousands of dollars every month for hotels, travel and support staff for the judges. The unstable nature of the judiciary makes for inefficient trials, no continuity and scheduling nightmares. Attorneys complain of inconsistent judicial styles, temperaments and procedures. The public is in an uproar because cases are being tried by off-island judges who are unfamiliar with the Virgin Islands lifestyle and culture. Virgin Islanders demand native judges or at the very least, judges who are familiar with the Virgin Islands culture. Id. As an example, consider the simple, comical, but telling anecdote of the federal revolving courthouse door: For example, an attorney recalls the unusual style of a visiting judge. When the jury was leaving for deliberations, all of the attorneys stood, which is the usual practice in the Virgin Islands. However, the judge demanded that the attorneys sit in “her court.” Shortly after her visit, a new visiting judge presided over the court and the attorneys sat when the jury left for deliberations. The new judge chastised the attorneys for sitting while the jury left. Virgin Islands Attorney Joel Holt states, “We don’t know when to sit or stand.” Id. at 701 n.21 (citation omitted). It was not until 1969 that the first person from the Virgin Islands, Almeric L. Christian, was appointed to be a judge on the District Court of the Virgin Islands, more than fifty years after the United States had acquired the 324 Stetson Law Review [Vol. 46 perhaps lacked the resources to113), harmonize former Danish West Indian customs with American common law to develop the
Territory and (of note for this Article) twelve years after the 1957 reception statute took effect. See Judge Almeric L. Christian Dies,ST.THOMAS SOURCE (Sept. 1, 1999), http://stthomassource.com/content/news/local-news/1999/09/01/judge-almeric-l-christian- dies. (“Judge Almeric Leander Christian . . . a native of St. Croix, was the first Virgin Islander to be appointed to the federal District Court of the Virgin Islands.”). 113. For example, the recognition given by the United States Court of Appeals for the Third Circuit in Callwood v. Kean, 2 V.I. 526, 543 n.8 (3d Cir. 1951), thanking Temple University professors and persons at the Library of Congress. Virgin Islanders, not to mention their courts, did not have the same access to resources and materials as a federal appellate court sitting in Philadelphia. Complicating matters, Danish officials repatriated much of the original records of the Danish West Indies to Denmark shortly after the transfer. See Jeannette Allis Bastian, A Question of Custody: The Colonial Archives of the United States Virgin Islands, 64 AM.ARCHIVIST 96, 96–97 (2011): On March 31, 1917, a small group of islands in the Caribbean began losing its memory. On that day, the three islands of the Danish West Indies . . . were transferred from Denmark to the United States and renamed the United States Virgin Islands. The transfer initiated a series of archival events in which competing custodial claims for the archival records of the islands resulted in the loss of access to them by the community in which they were created. The Treaty between Denmark and the United States includes the following clause: In this session shall also be included any government archives, records, papers or documents which relate to the cession or the rights and property of the inhabitants of the Islands ceded, and which may now be existing either in the Islands ceded or in Denmark. Such archives and records shall be carefully preserved, and authenticated copies thereof, as may be required shall be at all times given to the United States Government or the Danish Government, as the case may be, or to such properly authorized persons as may apply for them. Convention Between the United States and Denmark, U.S.-Den., art. I., Aug. 4, 1916, 39 Stat. 1706. Bastian notes the contradictory ways both Denmark and the United States understood this clause. Bastian, supra, at 103–04. Both sides read the treaty as giving themselves the right to the original records. Denmark maintains this position today. See, e.g., Danish National Archives, West Indian Local Archives,VIRGIN ISLANDS HISTORY, http://www.virgin-islands-history.dk/eng/a_wila.asp (last visited Feb. 26, 2017) (listing archive contents from 1755 to 1917 and explaining that “[t]hese West Indian local archives were brought home to Denmark from the islands around 1900—the major part in the years immediately after the sale of the islands in 1917—as expressly provided by the treaty transferring the islands to the United States” (emphasis added)). See also Bastian, supra, at 122: The Danish government proceeded to remove records to Denmark on the assumption that the records, created by Danes executing Danish policy in Danish officers which functioned as extensions of the colonial officers in the Mother country, belonged to Denmark. Denmark’s position is clear in the consistent references to ‘bringing the records home’ by Danish archivists, both past and present, in official finding aids, reports, and articles on the disposition of the records. (footnote omitted). Though Denmark is working to digitize many of the colonial records in time for the centennial, digital copies are not the same. Since both governments claim the 2017] Too Big to Fail 325 common law of the Virgin Islands.114 And then came the Restatement, effectively halting any development of Virgin Islands common law for more than half a century.115 In 1936, Congress passed an Organic Act for the Virgin Islands and provided a civil government for the Territory and a basic charter of rights.116 But Congress also retained the former colonial separation, creating municipalities and Municipal Councils in place of the Colonial Councils.117 Congress also created the Legislative Assembly of the Virgin Islands, which could convene “to enact legislation applicable to the Virgin Islands as a whole.”118 Twelve years later, after the system proved unworkable, Congress revised the Organic Act and, among other changes, abolished the Legislative Assembly and merged the Municipal Councils into a unicameral body designated the Legislature of the Virgin Islands with authority “to amend, alter, modify, or repeal any local law or ordinance.”119 Congress also authorized “the preparation, at Federal expense, of a code of laws of the Virgin Islands, to be entitled the ‘Virgin Islands Code’, which shall be a consolidation, codification and revision of the local laws and ordinances in force in the Virgin Islands.”120 “As a result, the laws of the Virgin Islands were overhauled with the
right to the originals, with Virgin Islanders caught in the middle, perhaps resort could be had to another clause in the treaty. See Convention Between the United States and Denmark, supra, at 1714 (“In the case of differences of opinion arising between the High Contracting Parties in regard to the interpretation or application of this convention, such differences, if they cannot be regulated through diplomatic negotiations, shall be submitted for arbitration to the permanent Court of Arbitration at the Hague.”). 114. When questions concerning rights to land and real property were at issue, courts still looked to Danish law. See, e.g., Smith v. Defreitas, 4 V.I. 525 (3d Cir. 1964) (examining Danish law concerning creation and abandonment of private easements); Malloy v. Reyes, 61 V.I. 163 (V.I. 2014) (examining Danish law and custom to address questions concerning creation and abandonment of public roads). 115. Remarkably, the first reported opinion that used the phrase the “common law of the Virgin Islands” was decided by the United States Court of Appeals for the First Circuit, Weston v. Stuckert, 4 V.I. 539, 542 (1st Cir. 1964), applying Virgin Islands law to a suit filed in Puerto Rico, and then only to state that the Restatements are the Virgin Islands’ common law. The first Virgin Islands opinion to use the phrase was Horsford v. Romeo, 7 V.I. 18, 20 (3d Cir. 1969), and there the United States Court of Appeals for the Third Circuit used the phrase only in passing to remark that “the common law of Antigua, a common law jurisdiction, was the same . . . as the common law of the Virgin Islands.” 116. Organic Act of 1936, Pub. L. No. 74-749, 48 Stat. 1807 (superseded 1954). 117. Id. §§ 2, 5–6, 48 Stat. at 1807–08. 118. Id. § 7, 48 Stat. at 1808–09. 119. Revised Organic Act of 1954, Pub. L. No. 83-517, § 8(c), 68 Stat. 497, 501 (codified as 48 U.S.C. §§ 1571(a), 1574(c)). 120. Revised Organic Act § 8(e). 326 Stetson Law Review [Vol. 46 passage of the 1954 Revised Organic Act and with enactment of the Virgin Islands Code by the Legislature in 1957.”121 “All available laws, including the 1921 Codes . . . were classified according to subject matter, carefully edited, and arranged into [thirty-four] titles.”122 Among the laws carried over from the 1921 Codes into the 1957 Virgin Islands Code was the Virgin Islands’ reception statute. But, while the 1921 reception statute had provided: “The common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this ordinance,”123 the 1957 reception statute differed, providing:
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.124
The editors of the Virgin Islands Code, in an annotation, explained that the 1957 statute was “[b]ased on” the 1921 statutes.125 But the code itself directs that such notes do not comprise Virgin Islands law.126 Whether the 1957 statute was merely a rephrasing of the 1921 statute or whether it was an entirely new statute is critical to understanding where the Virgin Islands now finds itself. To explain, the 1921 reception statutes directed courts to look to English common law as “adopted and understood” in the United States. But American courts have always understood and adopted English common law differently—some believe that English common law includes English statutes,127 others do not.128
121. Der Weer v. Hess Oil Virgin Islands Corp., No. SX-05-cv-274, 2016 WL 1644948, at *3 (V.I. Super. Ct. Apr. 25, 2016) (internal footnotes, quotation marks, and ellipses omitted). 122. V.I. CODE ANN. at ix (reprinting first edition preface) (1995). 123. 1921 Codes, tit. IV, ch. 13, § 6. 124. 1 V.I.C. § 4. 125. V.I. CODE ANN. tit. 1, § 4 (1995 ed.) (historical source note). 126. See 1 V.I.C. § 45(b) (“Revision notes and other notes set out in this Code are included for the purpose of convenient reference, and do not constitute part of the law.”). 127. See, e.g., Blume & Brown, supra note 17, at 521 (“While it was obvious that no British statute could have the force of a statute in an American territory after the change of sovereignty, the view that applicable British statutes were made territorial statutes by legislative adoption was widely held.”). See also Hall, supra note 1, at 817–18: 2017] Too Big to Fail 327
Some think of the common law as a mode of reasoning,129 while others disagree.130 And while nearly every court in the United
[D]ecisions rejecting a part of English law represent somewhat exceptional instances, inasmuch there are a good many more cases which accept acts of Parliament as part of American law. Examples of English statutes which have been recognized are the Habeas Corpus Act of 1679, early English statutes dealing with the authority of officials who act as conservators of the peace, the statute of uses, statutes passed in the [seventeenth] century providing for forfeiture in common-law courts of various illegally used articles, acts of Parliament limiting early common-law strict liability for the escape of fire, an early (1381) statute on forcible entry making the use of force in obtaining possession of land a criminal offense, and numerous others. (footnotes omitted). 128. Cf. Nelson, supra note 26, at 27 (“As Virginia Chancellor Creed Taylor confirmed, ‘it was the common law we adopted, and not English decisions.’” (quoting Marks v. Morris, 14 Va. 463, 463 (1809))). But cf. Hall, supra note 1, at 821 (“The territorial legislature of both Wisconsin and Iowa declared that none of the statutes of Great Britain shall be considered the law of the respective territories. Nevertheless, this territorial act has since become ineffective in Wisconsin inasmuch as a good many later decisions explicitly recognize as in-force various British statutes.” (quotation marks and footnotes omitted)). 129. See, e.g., Dale, supra note 15, at 560: When it is said that we have in this country adopted the common law of England, it is not meant that we have adopted any mere formal rules or any written code, or the mere verbiage in which the common law is expressed. It is aptly termed the unwritten law of England, and we have adopted it as a constantly improving science, as an art or a system of legal logic, rather than as a code of rules. In short, in adopting the common law, we have adopted its fundamental principles and modes of reasoning, and the substance of its rules as illustrated by the reasons on which they are based, rather than by the mere words in which they are expressed. (quoting Morgan v. King, 30 Barb. 9, 14–15 (N.Y. Sup. Ct. 1858); Harry W. Jones, Our Uncommon Common Law, 42 TENN. L. REV. 443, 444 (1975): The common law is not merely, or even essentially, a body of rules of more or less ancient judicial origin. It must be thought of also as a mode of reasoning, a way of using legal sources to analyze problems and to reach and justify decisions in disputed cases. The common law, we might say, is both product and process, the rules courts have laid down in past decisions and the ways in which courts draw on this past recorded experience as a source of guidance for future action. (footnote omitted); Schaefer, supra note 21, at 6 (“[T]he common law which the reception statutes adopted was not just that heterogeneous group of cases which happen to have been decided in England before 1607 but rather the common law as a system, the outstanding characteristics of which are its capacity for growth and its ability to slough off outmoded precedent.”); see also Adams, supra note 13, at 446 (discussing how “the common law naturally (l) develops organically over time, (2) responds to contemporary local mores and needs, and (3) seeks to incorporate the lessons of experience”). 130. See, e.g., Stoebuck, supra note 25, at 393: So that we may start in cadence, some definitions are due. Common law refers to that body of governing principles, mainly substantive, expounded by the common-law courts of England in deciding cases before them. Reception means 328 Stetson Law Review [Vol. 46
States that has considered the common law in the abstract has found that it embraces local customs and traditions,131 no jurisdictions other than Alaska—and then the Virgin Islands by way of Alaska—received the English common law through a statute that encompassed the common law of the whole of the United States. Professors William Wirt Blume and Elizabeth Gaspar Brown explained that the statute Congress adopted for the Territory of Alaska
was the only one in which Congress indicated what “common law” was intended, and this was accompanied by a more general provision. For Congress to have been specific it would have been necessary to designate the common law of some particular jurisdiction as of a particular time. Each territory
adoption of the common law as the basis for colonial judicial decisions. We are not concerned, as an end in itself, with colonial court systems or with the mechanics of decision making . . .. (quotation marks omitted). 131. See, e.g., Peery v. Fletcher, 182 P. 143, 146–47 (Or. 1919): The common law, as it existed in England at the time of the settlement of the American colonies, has never been in force in all of its provisions in any colony or state of the United States. It has been adopted so far only as its general principles were suited to the habits and conditions of the colonies, and in harmony with the genius, spirit and objects of American institutions. Different geographical conditions may justify modifications, and whether common law rules will be followed strictly in the United States will, necessarily, where no vested rights are actually concerned, depend upon the extent to which they are reasonable and in consonance with public policy and sentiment. What may be the common law in one state is not necessarily so considered in another. In many jurisdictions in the United States the rules of the common law of England have been held by the courts to be in full force so far as the same are applicable and of a general nature, and are not in conflict with the Constitution or special enactments of the Legislature. This is the rule in Oregon. In some of the states all statutes and acts of the British parliament which were passed prior to the fourth year of James the First are declared to be a part of the law of the state. The common law with all the statutes amending it prior to a certain time was adopted excluding statutes passed afterwards unless expressly adopted. In applying the general rule to a state which, like ours, had no political existence before the Revolution, it must in harmony with reason be held that when our territorial legislature and the framers of our Constitution and our courts recognized the existence here of the common law, they must have had reference to that law as it existed, modified and amended by the English statutes passed prior to the Revolution. (internal citations omitted); Territory v. Gay, 31 Haw. 376, 395 (1930) (“Our system of water rights is based upon and is the outgrowth of ancient Hawaiian customs and the methods of Hawaiians in dealing with the subject of water. No modifications of that system have been engrafted upon it by the application of any principles of the common law of England.”). 2017] Too Big to Fail 329
was open to settlement by persons from all existing states and territories, and it was early recognized that the laws of no one state should be imposed.132
So, in other words, reception statutes in all of the other states and territories referred broadly to the common law, not to any specific jurisdiction’s common law. But not for Alaska—at least not for Alaska’s criminal code—or for the Virgin Islands when it borrowed Alaska’s “criminal” reception statute. And though courts have read limitations into their jurisdiction’s reception statutes, often based on the unique history or circumstances of the jurisdiction,133 courts in the Virgin Islands were either unaware of, or unsure of, reception statutes nationally because the reported decisions did not address any of the kinds of questions other courts had to grapple with when receiving the common law. Such questions for the Virgin Islands would have included: whether the Colonial Councils—by adopting Alaska’s “criminal” reception statute, by not adopting Alaska’s “civil” reception statute, and by enacting reception statutes only within each district’s criminal code—intended to adopt English common law only insofar as it was understood and applied in the United States to criminal law; whether the Colonial Councils—if they intended for English common law to apply to both civil and criminal law—also intended to make English statutes part of the common law of Virgin Islands; and lastly, whether the Colonial Councils intended to replace, entirely, “the Common and Statute Law of Denmark . . . as more accurately defined by the Laws and Ordinances of the Colonies”134 with the common and statutory law of England, or intended instead to just adopt English common law as the method of reasoning for the courts and leave the courts to determine what portion of Danish common law as understood and applied in the Danish West Indies remained part of the Virgin Islands’ common law. Whatever the Colonial Councils may have intended, courts in the Virgin Islands applied English common law through the 1921
132. Blume & Brown, supra note 17, at 519. 133. Cf. Koos v. Roth, 652 P.2d 1255, 1263 (Or. 1982) (determining whether negligence or strict liability governed Oregon common law regarding the spread of fire). “It is an interesting question what the ‘common law of England’ was in 1843, when this was adopted as the law in Oregon.” Id. 134. In re Manbodh Asbestos Litig. Series, 47 V.I. 215, 229 (V.I. Super. Ct. 2005) (brackets, citation, and quotation marks omitted). 330 Stetson Law Review [Vol. 46 reception statutes in nearly all of the cases to which it could apply. But this too had its problems.135 Virgin Islands courts struggled applying a reception statute with such broad reach. Because the 1921 reception statutes lacked any
hierarchy or any sort of direction for determining which jurisdiction or jurisdictions to consider when applying the common law. . . . [A]ttorneys sought to sway courts with the legal authorities that bolstered their positions. Without binding precedent to employ, early Virgin Islands courts had to consider competing approaches from numerous jurisdictions and then choose the legal authority they thought best applied to the cases before them. Outcomes differed depending on the judge and the authorities cited. To further complicate matters, the Virgin Islands did not have an official reporter for its court decisions until 1959.136
135. See, e.g., Tebbs v. Alcoa S.S. Co., 3 V.I. 186, 193–94 (D.V.I. 1956): The defendant has cited the case of J. C. Penny Co. v. Robison, 1934, 128 Ohio St. 626, 193 N.E. 401, 100 A.L.R. 705, and has shown the application of that doctrine down through numerous citations. The plaintiff has cited the case of Bury v. F. W. Woolworth Co., 1930, 129 Kan. 514, 283 P. 917, and has shown the application of its doctrine down through numerous citations. The well written briefs on both sides show an impressive array of cases for each. (cited in Hartzog v. United Corp., 59 V.I. 58, 70 n.5 (V.I. Super. Ct. 2011)). 136. Hartzog, 59 V.I. at 70 (footnotes omitted). Hartzog also referenced “[a]dditional difficulties [that] arose due to the lack of resources made available to the Virgin Islands” and quoted the following background from Governor Merwin’s article: Legal research was hit or miss, with the winning lawyer often hitting the loser with what he had missed in his search. Many lawyers went into court convinced that they knew the current status of the law only to be confronted with a slip of paper on which was printed an amendment to the law of which they had no knowledge. To make matters even more confusing, there was no system for maintaining a record of legal decisions rendered by either the District Court or the police courts or of making them available to members of the legal profession or to the public. Most lawyers were obliged to rely on their own briefs and records of cases for precedents. As a result, the legal profession found it necessary to lean heavily on precedents from states and other territories where records of legal decisions were maintained. Id. at 70–71 & n.6 (quoting Merwin, supra note 82, at 779) (indentation omitted). Governor Merwin had explained these difficulties while also informing the American Bar Association that the Virgin Islands had authorized “the preparation and the first publication of legal decisions affecting the Virgin Islands.” Merwin, supra note 82, at 780. The first volume of the Virgin Islands Reports “covers decided cases from 1917 up to and including 1939,” he explained. Id. Thus, nearly twenty years of Virgin Islands precedent— arguably the most important years given the vast changes in the new American territory—was distilled to just one volume. It is possible (perhaps likely) that important decisions (perhaps only in hindsight) were omitted since the Legislature had authorized 2017] Too Big to Fail 331
Four years earlier, the United States Court of Appeals for the Third Circuit, in Callwood v. Virgin Islands National Bank,137 had tried to provide some guidance, directing that, when applying the 1921 reception statute, courts should look to the Restatements as a reasonable source of American common law.138
Writing for the United States Court of Appeal for the Third Circuit, Judge Albert B. Maris reasoned that since “the Virgin Islands have adopted the rules of the common law of England as followed and understood in the United States ... we think that the district court in applying those rules is justified in
the Governor to “contract with a qualified law publisher for the editing and publication, in book and pamphlet form, of the past and future decisions” of the District Court of the Virgin Islands, and the Third Circuit and the Supreme Court of the United States “rendered on appeals from cases originating in the Virgin Islands,” as well as “such other judicial decisions, rendered locally, which, in the judgment of the Governor would be helpful in the administration of justice in the Virgin Islands.” 4 V.I.C. § 551. Who decided what decisions prior to 1957 should be published is unclear. The Legislature, in 2004 following the establishment of the Supreme Court of the Virgin Islands, amended section 551 to require publication of the Supreme Court’s decisions as well. Act No. 6687, § 11, 2004 V.I. Sess. L. 179, 190 (Oct. 29, 2004). While at present the courts of the Virgin Islands decide (for the most part) whether to designate their opinions for publication, but cf. Rennie v. Hess Oil V.I. Corp., 62 V.I. 529, 539 n.7 (V.I. 2015), an interesting question arises what the Legislature understood by “decisions” and—if by decision it understood opinion (as opposed to order, judgment, decree, and so forth)—whether the Legislature also abrogated any discretion courts may have to choose what “opinions” should be published. Cf. David R. Cleveland, Overturning the Last Stone: The Final Step in Returning Precedential Status to All Opinions, 10 J. APP.PRAC.&PROCESS 61, 63 (2009) (“In the mid-1970s, the members of the judiciary fundamentally changed the nature of precedent in the federal courts. They did so relatively quickly and quietly: first, by issuing decisions not designated for publication and not citeable, and then, by denying these decisions precedential status.”); see also id. at 68–69: There is an inherent human desire for stability and continuity in decisionmaking. Looking to the past for guidance and direction is thus inherent in an institutionalized justice system. Whether explicitly binding or not, decisions of the past have a powerful impact on judges’ decisions, for ‘out of self-doubt, humility, or respect for prior generations, judges throughout history have often sought guidance from those who came before them.’ Ancient civilizations had some signs of this respect for what had come before, but it is in twelfth-century England that the roots of our modern conception of precedent, publication, and common law can be found. This tradition of common law, though not identical to that which we use today, was understood by the founding generation to include unfettered citation and precedent. (footnotes omitted). 137. 3 V.I. 540 (3d Cir. 1955). 138. See Hartzog, 59 V.I. at 71 (citing Callwood v. V.I. Nat’l Bank, 3 V.I. 540 (3d Cir. 1955)). But cf. Manbodh, 47 V.I. at 229 (“[T]he source note highlights a rule of decision, Callwood v. V.I. National Bank, where the court adopted a particular section of the Restatement, as a logical extension of the 1921 Codes’ reliance on United States common law.” (citation omitted) (emphasis added)). 332 Stetson Law Review [Vol. 46
following the well considered expressions of them which the American Law Institute has incorporated in its Restatements of the Law.” Judge Maris sought to make the Restatements mandatory through stare decisis. But Callwood applied only to the 1921 Codes. Two-years after Callwood, however, the Legislature made the restatements mandatory by statute when it enacted Section 4.139
If this is correct, then the Legislature’s intent in 1957 was not to replace English common law as adopted and understood in the United States with the common law as adopted and understood by the American Law Institute. That is, the Legislature of the Virgin Islands might have only intended to codify the Callwood decision. Because the 1957 reception statute removed references to the common law of England, and as adopted and understood in America, and replaced it with the common law as expressed by the American Law Institute, it is reasonable to conclude that the Legislature wanted only to eliminate the confusion and uncertainty the 1921 reception statutes had caused and provide courts (and Virgin Islanders) with a common source, not to elevate the restatements to the status of a quasi-common law code.140 If this was the Legislature’s intent, courts again were either unaware of it or failed to follow it because once the Legislature adopted the 1957 statute, Virgin Islands courts effectively abandoned any development of the common law of the Virgin Islands and blindly followed the American Law Institute.141 To be
139. Hartzog, 59 V.I. at 71 (quoting Callwood, 3 V.I. at 551) (internal citation omitted). 140. See also Adams, supra note 13, at 432: In enacting the new statute, the Senate expanded Callwood in an important respect. In Callwood, the court had acted as many other United States courts have in adopting a single provision of a single Restatement, having determined that provision to represent accurately the common law of the United States. Indeed . . . this is how common-law courts historically have made law, moving slowly and incrementally, one case at a time. The Virgin Islands Senate followed the Callwood court’s incremental, ordinary step with a sweeping, extraordinary measure by declaring that all provisions of all Restatements were to be considered as being representative of United States common law. (footnotes omitted). 141. Cf. Manbodh, 47 V.I. at 233 (“[C]ourts frequently apply a Restatement in a cursory, rubber-stamp fashion without considering the prevalence of the particular provisions.”). 2017] Too Big to Fail 333 sure, there was scattered pushback against the Restatement,142 but real resistance was futile without a local court of last resort. Congress had authorized the Territory in 1984 to create a supreme court,143 but it had also, in the interim, established an appellate division within the District Court of the Virgin Islands,144 comprised of three judges,145 who heard appeals from local Virgin Islands courts. Rather than act on that authority immediately, the Legislature waited another twenty years, until 2004, to establish a local court of last resort for the Territory. And around the same time, cracks in the Restatements’ armor began to surface. In 2004, Professor Kristen David Adams foreshadowed the sea-change to come, considering “the way in which the Restatements have been employed in the Virgin Islands and the manner in which this decision has affected the natural development of the Islands’ common law.”146 Her article observed that even though the 1957 reception statute, as of 2004, had
been applied in over two hundred reported cases, its language has never expressly been interpreted.[147] Therefore, the statute remains unclear as to whether the language “as expressed” means that Virgin Islands courts are expected to undertake an independent analysis of whether the Restatements express United States common law, or whether the courts are to assume that, when the Restatements have
142. See, e.g., Murray v. Beloit Power Sys., Inc., 450 F. Supp. 1145, 1447 (D.V.I 1978), aff’d sub nom., Murray v. Fairbanks Morse, 16 V.I. 647 (3d Cir. 1979): I realize that today’s decision appears to run counter to the position adopted by the American Law Institute, particularly as to the ramifications of a finding by the trier of fact that an injured plaintiff unreasonably exposed himself to an appreciable and known risk. I do not feel, however, that 1 V.I.C. § 4 transformed the A.L.I. approved restatements into a civil code. 143. See Act of Oct. 5, 1984, tit. VII, § 702, 98 Stat. 1732, 1737, codified at 48 U.S.C. § 1611(a) (amending the Revised Organic Code to authorize the creation of an appellate court of last resort). 144. Id. § 705, 98 Stat. at 1739, codified at 48 U.S.C. § 1613a(a)–(b). 145. The 1984 amendments to the Revised Organic Act also allowed no more than one of three judges sitting as an appellate court to be designated from a local court of record, see id. §, codified at 48 U.S.C. § 1613a(b), and which from 1976 to 2004 was known as the Territorial Court of the Virgin Islands, and then the Superior Court of the Virgin Islands from 2004 to the present. 146. Adams, supra note 13, at 425. 147. Contra Dunn v. HOVIC, 28 V.I. 467, 501–02 (3d Cir. 1993) (en banc) (Alito, J., concurring) (interpreting the language of 1 V.I.C. § 4). 334 Stetson Law Review [Vol. 46
purported to express common law, they have done so accurately.148
Adams then discussed the original purpose of the American Law Institute, its history, and how its goals started to change over time.149 After discussing concerns that courts and other legal scholars have raised about the influence of lobbyists and politics on the American Law Institute (critically in the area of tort reform), she argued that the Virgin Islands’ 1957 reception statute could be seen as a derogation of duty.150 And though her observations were couched in terms of a Virgin Islands Legislature’s duty to enact law, the very same argument could have been volleyed at the Virgin Islands judiciary. The most significant rejection of the restatements came in 1978 in a decision the District Court of the Virgin Islands issued in Murray v. Beloit Power Systems, Inc.151 There, the Court explained that it would “deviate” from the Restatement (Second) of Torts and extend comparative negligence principles to strict product liability cases, but not because the Court had inherent authority to develop the common law. Justifying its decision, the Court wrote:
I realize that today’s decision appears to run counter to the position adopted by the American Law Institute, particularly as to the ramifications of a finding by the trier of fact that an injured plaintiff unreasonably exposed himself to an appreciable and known risk. I do not feel, however, that 1 V.I.C. § 4 transformed the American Law Institute approved restatements into a civil code. As stated by the Third Circuit Court of Appeals in Varlack v. SWC Caribbean, Inc., 550 F.2d 171 (1977), the restatements constitute the rules of decision in the Virgin Islands only to the extent that they accurately express prevailing rules of common law. More importantly, the prevailing rules of common law constitute no more than rules of decision, and though binding as such on foreign jurisdictions seeking to apply Virgin Islands law, are binding on local courts only in the absence of local case law or statutory law to
148. Adams, supra note 13, at 426 (footnote omitted). 149. Id. at 432–42. 150. See id. at 450 (“[T]o the extent that adoption of the Restatements has chilled the perceived need for legislation, it could be argued that the Virgin Islands Senate has derogated its duties with regard to the creation of the law.”). 151. 450 F. Supp. 1145 (D.V.I 1978), aff’d sub nom., Murray v. Fairbanks Morse, 16 V.I. 647 (3d Cir. 1979). 2017] Too Big to Fail 335
the contrary. As implicitly acknowledged by the Third Circuit in Co-Build Companies, Inc. v. Virgin Islands Refinery Corp., 570 F.2d 492 (filed February 13, 1978) this Court has the power to deviate from prevailing rules of common law to create “local laws to the contrary” within the meaning of 1 V.I.C. § 4.152
While the Court did question the reach of the 1957 reception statute, its concern was not for the inherent authority of the Virgin Islands judiciary. Rather, the Court sought to balance Virgin Islands public policy with the common law. The Legislature adopted a statute requiring that liability be apportioned. The common law barred evidence of a plaintiff’s negligence in strict liability claims. Murray deviated from the common law and allowed evidence of the plaintiff’s own negligence in strict liability, but only in an attempt to harmonize conflicting laws.153 Still, Murray’s remark—that the 1957 reception statute did not transform the Restatements into a civil code—resonated, and courts began to question the scope of the statute.154 But it would be another twenty years before another court, a concurring opinion in Dunn v. HOVIC,155 examined the 1957 reception statute critically and its “restatement mandate.” Then-Third Circuit Judge Samuel A. Alito wrote separately in Dunn to explain—after discussing the history of the Virgin Islands’ reception statutes—that
152. Id. at 1147. 153. See Hartzog v. United Corp., 59 V.I. 58, 81–82 (V.I. Super. Ct. 2011) (summarizing Murray): [T]he District Court grappled with applying both the Virgin Islands’ contributory negligence statute and the common law defense of assumption of the risk to an action alleging both negligence and strict liability. A jury had found the defendant liable under both theories. The parties disputed the instructions the Court should give the jury regarding contributory negligence and assumption of the risk. Contributory negligence is not a viable defense to strict liability actions. Assumption of the risk is a defense and does bars recovery. The District Court decided to merge both into a general negligence instruction. In its verdict, the jury found Murray five percent at fault. The District Court then reduced the award proportionally. (internal citations omitted). 154. See, e.g., Glason v. P.R. Int’l Airlines, 17 V.I. 150, 153 (D.V.I. 1980) (quoting 1 V.I.C. § 4 and citing Varlack, but contrasting them with Murray); Creque v. Roebuck, 16 V.I. 197, 202 n.8 (V.I. Terr. Ct. 1979) (same). 155. 28 V.I. 467 (3d Cir. 1993) (en banc). 336 Stetson Law Review [Vol. 46
1 V.I.C. § 4 . .. mean[s] that the law of the Virgin Islands, in the absence of a relevant statutory provision, is the body of rules established by precedent as generally understood and applied in the United States and that, as suggested in Callwood, the Restatements provide a presumptively authoritative summary of this body of precedent. I do not interpret 1 V.I.C. § 4 to mean that the Restatements, whether adopted before or after 1957, are tantamount to Virgin Islands statutes. On the contrary, I agree with the analysis of this question in Varlack v. SWC Caribbean Inc., 550 F.2d 171 (3d Cir. 1977). Addressing a conflict between a provision of the Restatement (First) of Torts (issued in 1934) and a provision of a Tentative Draft of the Restatement (Second) of Torts, the Court observed that “we read the statute as looking to the Restatements only as an expression of ‘the rules of common law.’” 550 F.2d at 180 (emphasis in original). Thus, 1 V.I.C. § 4 does not incorporate all of the Restatement provisions in effect in 1957 as if they were actual statutory text; nor does it delegate to the American Law Institute the authority to enact changes in the law of the Virgin Islands in all of the areas covered by the Restatements. While some of our opinions cite provisions of the Restatements as if they were statutory law, I respectfully submit that these references (which I take to be merely a form of shorthand) are potentially misleading.156
Although the concurring opinion in Dunn did not cite to Murray, both opinions expressed similar concerns: viewing the Restatements as a quasi-statute or a common law civil code that only the Legislature could change.157 This view still remains.
156. Id. at 501–02 (Alito, J., concurring) (internal footnotes and quotation marks omitted). 157. See, e.g., In re Manbodh Asbestos Litig. Series, 47 V.I. 215, 229 (V.I. Super Ct. 2005) (the history of 1 V.I.C. section 4 “fails to conclusively explain the apparent delegation of the Legislature’s lawmaking authority and responsibility to a non- governmental entity, the ALI, in the plain language of title 1, section 4 of the Virgin Islands Code”) (footnote omitted) (emphasis added); Hartzog, 59 V.I. at 85 (echoing Manbodh’s delegation concerns). Cf. Figueroa v. Hess Oil V.I. Corp., 198 F. Supp. 2d 632, 660 & n.10 (D.V.I. 2002) (Moore, J., dissenting) (asserting that the Appellate Division cannot “reject, accept, or judicially modify” a restatement rule but rather must follow the restatements “as written”). See also Phillip H. Corboy, Curt N. Rodin & Susan J. Schwartz, Illinois Courts: Vital Developers of Tort Law As Constitutional Vanguards, Statutory Interpreters, and Common Law Adjudicators, 30 LOYOLA U. CHI. L.J. 183, 193 (1999) (“The few Illinois decisions directly interpreting the Illinois reception statute have found that it constitutes a declaratory enactment. Those decisions consistently reiterate that Illinois courts adopted a system of elementary rules and general guidelines which are continually expanding with society’s progression . . . .”) (footnotes omitted); Hall, supra note 1, at 804: 2017] Too Big to Fail 337
As if prompted by the concerns Professor Adams raised in 2004, the next year a decision came by a judge of the Superior Court of the Virgin Islands, critically examining the 1957 reception statute. The question raised in In re Manbodh Asbestos Litigation Series concerned what law governed two of the claims—negligence and strict liability—that hundreds of plaintiffs had brought against Shell Oil Company, Hess Oil Virgin Islands Corporation, and other defendants for injuries allegedly caused by exposure to asbestos and other toxic substances while working at an oil refinery on St. Croix.158 Shell and the plaintiffs disputed whether the Restatement (Second) of Torts applied or the Restatement (Third) of Torts: Products Liability. The difference concerned not just what law applied— since “each Restatement will produce different results”159—but also how many claims the plaintiffs had, since applying the Restatement (Third) would have “[t]he practical effect . . . [of] eliminat[ing]” the two different claims “and substitut[ing] one count based on a defective product—defective warning” theory.160 The Court began its analysis by finding the 1957 reception statute “ambiguous, as the phrase ‘in the absence of local laws to the contrary,’ is susceptible to being understood in two or more
As American civilization moved to the west coast, the common law moved with it much in the same manner as it had spread to the Northwest, Southwest and Mississippi territories. Most of the midwestern and western states adopted general reception statutes patterned in the main after the original Virginia statute, but often these reception provisions came after it had already been tacitly assumed that the common law was in force. In some instances laws of already established states or territories were extended to a new territory until the local government should have time to set up laws of its own. This meant that the common law as adopted by the previous state or territory was deemed to be in force in the new territory. In cases where the passage of a reception statute came later in the development of a state or territory, it was deemd [sic] to be declaratory of existing law.
(footnotes omitted); Jeffrey A. Pojanowski, Statutes in Common Law Courts, 91 TEX L. REV. 479, 496 n.113 (2013) (“Common law powers in many states might be understood as legislative grants via reception statutes that incorporate common law not inconsistent with state law. This might limit a court’s prerogative. Yet courts often treated these statutes as merely declaratory of existing judicial powers.” (citations omitted)). 158. Manbodh is the last name of one of the plaintiffs as well as the name of the master case and docket. See Manbodh, 47 V.I. at 222 (“In 1997, the Plaintiffs’ cases were consolidated into a pretrial docket under the caption of In re Kelvin Manbodh Asbestos Litigation Series, Civ. No. 324/1997.”). 159. Id. at 226. 160. Id. at 226 n.6. 338 Stetson Law Review [Vol. 46 ways”:161 statutes and precedent but also statutes or precedent. The Court also found
[t]he meaning of “restatements of law” . . . ambiguous as it is unclear to which installment of the Restatement local law must be contrary. No court has ever identified which version of the “restatements of law” was mandated by the Legislature to be applied in disputes, whether the obligation was both continuing and automatically updating, and whether the drafters intended the adoption to be by section, topic, chapter, division or in its entirety.162
Manbodh then sought to bring some clarity to the ambiguity. Recognizing the 1921 reception statutes and the available historical background, and drawing on then Judge Alito’s concurring opinion in Dunn, Manbodh determined that Virgin Islands “[c]ourts must first follow local precedent and second, the majority rules of the common law established by precedent in courts of the United States.”163 But what constituted local precedent? Manbodh identified “no less than three plausible interpretations”164 for the restatement mandate: the newest restatement, the oldest restatement, and a “hybrid” approach. The newest restatement approach was “attractive,” the Court reasoned, “because of the ease of application and the additional clarity often contained in the newer Restatements.”165 But construing the 1957 reception statute to be “self-enacting” also meant it must ignore precedent.166 “Where either the Third Circuit or Appellate Division”—the courts binding on the Virgin Islands Superior Court at the time—“has judicially adopted” a particular restatement section, “that decision is now precedent that must be followed,” Manbodh reasoned.167 And since lower courts cannot disregard the directives of higher courts,168 automatically applying a newer restatement (when an older one
161. Id. at 227 (quoting 1 V.I.C. § 4). 162. Id. at 227–28. 163. Id. at 230. 164. Id. (footnote omitted). 165. Id. at 231. 166. Id. 167. Id. 168. Cf. id. at 231 n.15. 2017] Too Big to Fail 339 had been applied) was inappropriate.169 Similarly, the hybrid approach—applying “the most recent version of the Restatement unless local law to the contrary, in the form of an earlier, contrary Restatement or other common law rule, has been previously endorsed by the courts”—would also be improper, particularly if “the newest Restatements endorsed a minority rule.”170 The Court concluded that the oldest restatement approach was “compelling because, among other reasons, it is unlikely that the Legislature contemplated the amending of the Restatements at all.”171 Rather, the Legislature probably allowed for “the Restatements in existence . . . in 1957 to lay a foundation for courts . . . while the Legislature took the time necessary to draft the Code for the Virgin Islands.”172 And it is this approach Manbodh adopted, holding that
title 1, section 4’s reference to the “restatements” refers to the Restatement in existence at the time of its enactment in 1957 and reflects an intent to fill a void until such a time when the Legislature codified law or the judicial branch confirmed the propriety of particular Restatements. Thus, title 1, section 4 mandates that absent statutory or precedential law to the contrary, courts in the Virgin Islands must apply the current common law majority rule, first, as expressed in the Restatement in existence at the time of its enactment and second, to the extent not so expressed, as in more recent versions of the Restatement; failing that, courts shall resort to the majority common law rules as generally understood and applied in the United States. This second inquiry should begin with the consideration of whether more recent versions of the Restatement now reflect the majority rule, before resorting to common law precedents.173
Rejecting section 1 of the Restatement (Third) of Torts: Products Liability, Manbodh instead applied section 388 of the Restatement (First) of Torts, and section 402A of the Restatement (Second) of Torts, because the former “was in existence at the
169. Manbodh did distinguish between applying a newer edition that just “copied the language of an old[er] Restatement,” which would be consistent with section 4, versus applying a newer and different restatement. Id. at 232 n.17. 170. Id. at 233. 171. Id. at 235. 172. Id. at 234. 173. Id. at 237. 340 Stetson Law Review [Vol. 46 time of title 1, section 4’s enactment” and the latter had “garnered widespread acceptance, including the adoption by courts in this jurisdiction.”174 Manbodh was the first decision—apart from the concurring opinion in Dunn—that attempted to bring some order to the chaotic way the 1957 reception statute was being applied. The next decision to take a similar stab at it was Hartzog. But Hartzog went entirely in the opposite direction. Like Manbodh, Hartzog also concerned whether to apply the Restatement (Second) of Torts or the Restatement (Third) of Torts: Product Liability. Ms. Hartzog bought a houseplant, a dieffenbachia, from a grocery store on St. Croix.175 A few months later her minor son became ill and had to be rushed to the hospital after he accidentally ingested sap from a broken leaf of the plant.176 “Dieffenbachia, or dumbcane by another name [in the Virgin Islands], is poisonous if ingested.”177 She sued the grocery store on her own behalf and on behalf of her son, alleging that the store “advertised the plants as being safe for the home” but “failed to warn customers about the plant’s poisonous properties.”178 In resolving the grocery store’s summary judgment motion, the Superior Court noted that neither party had adequately identified the duty of care. And since her claims sounded in product liability, the Court questioned whether the Restatement (Third) of Torts: Products Liability could apply. However, because Manbodh had said it could not, Hartzog felt compelled to consider Manbodh and “examine Virgin Islands courts’ application of the restatements of law.”179
174. Id. at 241. See also id. at 242:
Accordingly, it is apparent that the RESTATEMENT (FIRST) OF TORTS section 388 and the RESTATEMENT (SECOND) OF TORTS section 402A supply the substantive law for products liability actions in this jurisdiction. Following the rubric of the chosen approach, the Restatement (Third) of Torts does not apply because majority rules are found in the RESTATEMENT (FIRST) OF TORTS Section 388(c) comment 1 and RESTATEMENT (SECOND) OF TORTS section 402A(1). Furthermore, since there is binding precedent, the RESTATEMENT (SECOND) OF TORTS Section 402A must be applied, unless appellate courts adopt the Restatement (Third) of Torts. 175. Hartzog v. United Corp., 59 V.I. 58, 61 (V.I. Super. Ct. 2011). 176. Id. at 62. 177. Id. at 61. 178. Id. at 62. 179. Id. at 70. 2017] Too Big to Fail 341
Following the enactment of [s]ection 4, Virgin Islands courts consistently applied the common law if found within the restatements approved by the American Law Institute. For example, Virgin Islands courts applied the Restatement of Contracts, first published in 1932, the Restatement of Conflicts of Laws, first published in 1934, the Restatement of Trusts, first published in 1935, the Restatement of Torts, first published in 1939, and the Restatement of Judgments, first published in 1942. Courts continue to apply the Restatement of Restitution, published in 1937. The Restatement of Agency, published in 1933, was applied only once, just prior to the enactment of [s]ection 4. Since the Virgin Islands codified many of its property laws, resort to the Restatements of Property was not generally required. Nonetheless, where applicable, Virgin Islands courts also applied the Restatements of Property, first published from 1936 through 1944, to cases before them.
Virgin Islands courts continued this practice after the American Law Institute began revising its restatements. Where a restatement was revised, Virgin Islands courts transitioned to it. When the American Law Institute revised its trusts restatements in 1957, Virgin Islands courts transitioned to the Restatement (Second) of Trusts. When the American Law Institute revised its agency restatement in 1958, Virgin Islands courts transitioned to the Restatement (Second) of Agency. When the American Law Institute revised its agency restatements in 2005, Virgin Islands courts transitioned to the Restatement (Third) of Agency. When the American Law Institute revised its conflicts restatement in 1969, Virgin Islands courts transitioned to the Restatement (Second) of Conflict of Laws. Virgin Islands courts also transitioned to the Restatement (Second) of Contracts once the American Law Institute revised it in 1979. Upon the American Law Institute revising its judgments restatement in 1982, Virgin Islands courts transitioned to the Restatement (Second) of Judgments. When the American Law Institute approved revisions to its property restatements, from 1976 through 1990, Virgin Islands courts transitioned to the Restatements (Second) of Property where applicable. When the American Law Institute revised its property restatements a second time, from 1996 through 2011, Virgin Islands courts once again transitioned to the most current version, the Restatement (Third) of Property: Mortgages. 342 Stetson Law Review [Vol. 46
As with the 1957 trusts revisions, the 1958 and 2005 agency revisions, the 1969 conflicts revisions, the 1979 contracts revisions, the 1982 judgments revisions, and the multiple property revisions, when the American Law Institute approved a partial revision, published in 1965, to its torts restatement, Virgin Islands also transitioned to the newer version, the Restatement (Second) of Torts. Not all of the Restatement (First) of Torts was revised simultaneously, however. The American Law Institute did not approve revisions to sections 504 through 707 until 1976 and not until 1977 for the remaining sections. Accordingly, where the Restatement (First) of Torts remained unrevised, Virgin Islands courts continued to apply it. After the American Law Institute revised the remaining sections of its torts restatements, Virgin Islands courts again transitioned to the latest version. In fact, courts began to take notice of proposed revisions before final approval. A few, including the United States Court of Appeals for the Third Circuit, abandoned the then-current version in favor of an unapproved draft, despite [s]ection 4’s clear limitation to restatements of the law approved by the American Law Institute.180
Hartzog found this “overwhelming body of judicial practice, spanning over half a century” compelling and reasoned that it “should not be overlooked”181 and held that applying “more recent restatements should not be forestalled ‘until the Legislature or appellate courts apply such a directive.’”182 Both Hartzog and Manbodh highlight how Virgin Islands courts struggled with the 1957 reception statutes after the American Law Institute started revising the Restatements. Both decisions show how Virgin Islands courts believed that some restatement (if one addressed an area of the common law) had to apply, whether the newest or the oldest version. In other words, neither Hartzog nor Manbodh spoke of their inherent authority to shape the common law or considered what the purpose of the 1957 statute was, even though both recognized the confusion the 1921 reception statute probably caused in the years before 1957. Manbodh explained:
180. Id. at 72–77 (footnotes, quotation marks, citations, ellipsis, and emphasis omitted). 181. Id. at 83. 182. Id. at 80 (quoting In re Manbodh Asbestos Litig. Series, 47 V.I. 215, 243 (V.I. Super Ct. 2005)). 2017] Too Big to Fail 343
Under Danish colonial law, in certain circumstances, the local courts were directed to follow the common law of Denmark. After the transfer, a similar mandate was imposed on local courts with respect to United States common law. Presumably, this was problematic because there was no unitary common law of the United States, but rather, it varied between states. Subsequent judicial opinions recognized the Restatements as embodying that United States common law. The Legislature, cognizant of these judicial decisions, recognized that the Restatements might serve as better guidance and adopted title 1, section 4.183
But rather than view section 4 of title 1 of the Virgin Islands Code for what it was—a statute to receive the common law—both courts instead turned to traditional canons of statutory construction in an attempt to make the 1957 reception statute more manageable.184 I suggest this was incorrect. Courts, scholars, and historians have all concluded that reception statutes are declaratory,185 particularly general statutes that receive the common law in contrast to those that receive
183. Id. at 237–38. 184. Compare Hartzog, 59 V.I. at 71–72: In examining this statute, the Court must first ‘determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’ If the language of the statute is clear, the court’s inquiry stops there. . . . A plain reading of [s]ection 4 . . . directs courts to employ in their decisions (1) the rules of the common law; (2) as found in the approved Restatements; (3) and if not found therein, as generally understood and applied in United States, (4) but only where no local law exists to the contrary. (citations omitted), with Manbodh, 47 V.I. at 227: Because this dispute ultimately turns on the interpretation of title 1, section 4, the Court must resort to rules of statutory construction. The guiding principle of statutory construction provides that when determining the meaning of a statute, words and phrases are to be read within their context and construed according to the common and approved usage of the English language. Where the language of a statute is ambiguous when read as a whole, however, courts should turn to both intrinsic and extrinsic aids to elicit the legislative intent. (citation omitted). 185. See, e.g., State v. Charleston Bridge Co., 101 S.E. 657, 660 (S.C. 1919) (“[T]he statute, making the common law of force in this State, is merely declaratory in its nature.”); Hosts, Inc. v. Wells, 443 N.E.2d 319, 321 (Ind. Ct. App. 1982) (“The Supreme Court of Indiana is the central source for declaring the law of Indiana. It is properly empowered to alter, amend or abrogate the common law when the needs of our society dictate. In applying that power the court has had cause to construe the reception statute. It is a declaratory enactment.” (citations omitted)). 344 Stetson Law Review [Vol. 46
English statutes as well as the common law.186 Said another way, reception statutes are not statutes in the true sense, but rather expressions of legislative intent. Both Manbodh and Hartzog approached the edges of a question this Article indirectly raises: what function reception statutes serve. But Banks does so even more, because, though some courts have adopted the common law in the absence of a reception statute, no court—at least not until Banks—has ever struck down a statute to receive the common law.
IV. TAKE IT TO THE BANKS
On April 21, 2002, Diana Banks, Patricia Joseph, Merle Penha-Murphy, Dianne Dewindt, Zyanguelyn Poe, and Aloma Barnabas got into a car accident on St. Thomas.187 Franklin Barnabas had rented a minivan from Budget Rent-a-Car the day before.188 His sister-in-law, Diane Dewindt, was driving the van the next day, traveling downhill, when the brakes failed.189 She “steered the mini-van off of the main road and into an up-hill driveway where the mini-van collided with a tree.”190 Mr. Barnabas was not a passenger at the time,191 but the others were and were all injured in the accident.192 Sometime thereafter, Banks, Joseph, Penha-Murphy, and Mrs. Barnabas sued Budget in the District Court of the Virgin Islands alleging negligence, strict liability, and breach of contract.193 Mr. Barnabas also sued on a claim for loss of consortium.194 Dewindt and Poe filed suit separately: Dewindt in the Superior Court of the Virgin Islands and Poe in United States District Court for the District of
186. But cf. Joseph Fred Benson, Reception of the Common Law in Missouri: Section 1.010 as Interpreted by the Supreme Court of Missouri, 67 MO. L. REV. 595, 607 (2002) (“Due to incomplete and, at times, inaccurate analysis, the history and plain meaning of Missouri’s reception statute have been plagued in stygian darkness.” (emphasis added)). 187. Banks v. Int’l Rental & Leasing Corp., Nos. 2002-200, 2002-201, 2002-202, 2002- 203, 2008 WL 501171, at *1 (D.V.I. Feb. 13, 2008), reversed and remanded Banks v. Int’l Rental & Leasing Corp., 56 V.I. 999 (3d Cir. 2012). 188. Id. 189. Id. 190. Id. 191. Id. 192. Id. 193. Id. 194. Id. at *3. 2017] Too Big to Fail 345
Maryland.195 Several years later, Budget moved for summary judgment and the question—as in Manbodh and later Hartzog— concerned which version of the restatement of torts applied through the Virgin Islands’ reception statute.196 The District Court, citing Manbodh, held that the Restatement (Second) of Torts governed. Because “an action for strict product liability cannot be maintained against a lessor of chattels,”197 the District Court concluded that Budget could not be found liable on the plaintiffs’ strict liability claim.198 After finding no factual dispute remaining on the plaintiffs’ negligence claim—and concluding that loss of consortium derived from a viable claim—the court granted Budget’s motion and dismissed the consortium claim.199 In a subsequent opinion, the court also granted Budget’s motion for summary judgment on the plaintiffs’ breach of warranty claim and entered judgment.200 Four people injured in a car accident were left without a remedy. The plaintiffs appealed. The Third Circuit heard arguments on December 2, 2009. However, a year and a half later, in an April 19, 2011 order, the court determined “that the appeal raises important and unresolved questions concerning the applicability of strict liability to lessors under Virgin Islands law.”201 Because the Virgin Islands had established a supreme court during the eleven years it took the plaintiffs’ case to wind its way through the courts, the Third Circuit took the occasion to certify, to the Supreme Court of the Virgin Islands, the question: “Whether, under Virgin Islands law, including V.I. Code Ann. tit. 1 § 4, a plaintiff may pursue a strict liability claim against a lessor for
195. Id. at *1 n.1. Dewindt’s case was subsequently dismissed in 2013 by stipulation of the parties. Poe’s case was subsequently transferred to the District Court of the Virgin Islands. See Poe v. Budget Rent a Car Sys., Inc., No. RWT 05-1058, 2006 WL 2161865, at *2 (D. Md. July 31, 2006) (transferring the case to the District of the Virgin Islands pursuant to 28 U.S.C. § 1631); see also Poe v. Budget Rent-a-Car Sys., No. 2006-128, 2008 WL 2725803, at *3 (D.V.I. July 11, 2008) (denying motion for retransfer to the District of Maryland). 196. Banks, 2008 WL 501171, at *1–3. 197. Id. at *3. 198. See id. at *3 (“Budget leased the minivan to Franklin Barnabas. As a lessor, a strict liability action for product liability cannot be maintained against Budget. As such, to the extent the Plaintiffs allege a claim of strict product liability against Budget, Budget is entitled to summary judgment on that count.”). 199. Id. at *4. 200. Banks v. Int’l Rental & Leasing Corp., 49 V.I. 970, 977 (D.V.I. 2008). 201. Banks v. Int’l Rental & Leasing Corp., Nos. 08-1603, 08-2512, 2011 WL 7186340, at *1 (3d Cir. Apr. 19, 2011). 346 Stetson Law Review [Vol. 46 injuries resulting from a defective product.”202 The Court explained that the “dispute” on appeal “turn[ed] on whether the Virgin Islands Supreme Court would adopt the Restatement (Third) of Torts, or whether that court would rule that the Restatement (Second) of Torts remains the law of the Virgin Islands.”203 The Supreme Court of the Virgin Islands accepted the question and issued its opinion on December 15, 2011. But the Court raised and answered two of its own questions first: “[W]hether the phrase ‘local law’ in section 4 encompasses judicial precedents from this Court; and” further, “[W]hether section 4 precludes this Court, as the highest local court in the Virgin Islands, from declining to follow the latest approved Restatement.”204 The Court easily answered the first question, concluding that local law, as used in the 1957 reception statute, does not include precedent from the Supreme Court of the Virgin Islands.205 In one of its earliest decisions, In re People of the Virgin Islands,206 the Virgin Islands Supreme Court explained what binding precedent is for the Virgin Islands following the creation of a local supreme court:
202. Id. at *2–3. 203. Id. at *2. 204. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 973–74 (V.I. 2011). 205. See generally id. at 978: We cannot ignore that, at the time both section 4 of title 1 and its predecessor in the 1921 Codes were initially enacted, the Virgin Islands lacked a fully developed local judiciary, with the District Court—a federal court established by Congress rather than the Legislature and consisting of judges selected by the President of the United States rather than the Governor of the Virgin Islands—possessing jurisdiction over most civil actions, and local courts only exercising jurisdiction over only relatively minor civil claims. Thus, at the time the Legislature enacted section 4, the most significant Virgin Islands judicial decisions were being rendered by the District Court, which—although hearing cases that in other jurisdictions would ordinarily be heard by a local court— was essentially a federal creature that was created by federal law and consisted of federal judges appointed by the President and confirmed by the United States Senate. Moreover, even though the Virgin Islands local judiciary continued to expand and receive greater jurisdiction over local matters in the decades that followed, all decisions rendered by the Superior Court and its predecessor courts continued to be reviewed on appeal by the District Court, which made it very difficult to attain the goal of establishing an indigenous Virgin Islands jurisprudence given that local judges lacked the ability to issue decisions that would constitute binding precedent in the territory. (quotation marks and citations omitted). 206. In re People of the V.I., 51 V.I. 374 (V.I. 2009) (per curiam). 2017] Too Big to Fail 347
Although the establishment of this Court has changed the relationship between the local Virgin Islands judiciary and the Third Circuit, this Court’s creation “did not erase pre-existing case law,” and thus “precedent that was extent [sic] when the Court became operational continues unless and until the Court addresses the issues discussed there.” Accordingly, decisions rendered by the Third Circuit and the Appellate Division of the District Court are binding upon the Superior Court even if they would only represent persuasive authority when this court considers an issue.207
Similarly, a year after In re People, the Third Circuit held in Government of the Virgin Islands v. Lewis,208 that “[i]n the absence of controlling Virgin Islands precedent” it would “apply [its] most analogous precedent,” but emphasized that “the authority to interpret [Virgin Islands law] lies centrally with the newly created Supreme Court of the Virgin Islands,” whose decisions “‘on matters of local law’” the Third Circuit would “‘defer to’” unless found to be “‘manifestly erroneous.’”209 So, leaning on In re People—and the Third Circuit’s clarification of both courts’ roles in Lewis—Banks concluded that section 4 of title 1 “encompasses judicial decisions which are binding on the court required to apply section 4.”210 Since the only decisions binding on the Supreme Court of the Virgin Islands are the “decisions of the Third Circuit Court of Appeals in which certiorari has been granted and [the Supreme] Court’s interpretation of local law has been reversed,”211 the Banks court reasoned that “there [was] an ‘absence of local laws to the contrary’ as contemplated in 1 V.I.C. § 4.”212 Answering the second question was more complicated. Although other courts in the Virgin Islands had applied the Restatement (Second) of Torts, this precedent was not binding on the Supreme Court. So, the Court questioned whether it too was
207. Id. at 389 n.9 (quoting People v. Quenga, 1997 Guam 6, *7 (1997)) (brackets and alterations omitted). 208. 620 F.3d 359 (3d Cir. 2010). 209. Id. at 365 (quoting Pichardo v. V.I. Comm’r of Labor, 53 V.I. 936, 939 (3d Cir. 2010)). 210. Banks, 55 V.I. at 975. 211. Id. at 976. 212. Id. 348 Stetson Law Review [Vol. 46
bound to follow the most recent version of the Restatement approved by the American Law Institute whenever it is required to decide an issue of first impression, or whether, like other courts of last resort, this Court possesses the inherent power to shape the common law in the Virgin Islands.213
It was not bound, the court held.214 The Legislature of the Virgin Islands “did not intend for section 4 of title 1 to compel” the Supreme Court of the Virgin Islands “to mechanically apply the most recent Restatement.”215 The Court found support for its holding in the history of the reception statutes.
[T]he historical note that follows section 4 of title 1 states that the purpose of enacting section 4 was to rewrite section 6 of chapter 13 of title IV of the 1921 Codes. . . . But more importantly, the historical note states that the Legislature chose to replace that provision with section 4 so as to more accurately express the concept of the Common Law as constituting a body of rules established by precedent, as distinguished from a body of statutory law. Thus, any claim that this Court lacks the authority to decline to follow a Restatement provision is wholly inconsistent with the historical note, in that such an interpretation of section 4 would essentially require this Court to treat the Restatements as if they are statutes, an approach which could not be reconciled with the Legislature’s clear intent to develop the common law through judicial precedent.216
But even without this history, the Court reasoned, in Banks, that it would reach the same conclusion.
We cannot ignore that, at the time both section 4 of title 1 and its predecessor in the 1921 Codes were initially enacted, the Virgin Islands lacked a fully developed local judiciary, with the District Court — a federal court established by Congress rather than the Legislature and consisting of judges selected by the President of the United States rather than the Governor of the Virgin Islands — possessing jurisdiction over most civil actions, and local courts only exercising jurisdiction over only relatively minor civil claims. Thus, at the time the
213. Id. 214. Id. 215. Id. 216. Id. at 976–77 (internal footnotes, quotation marks, and ellipses omitted). 2017] Too Big to Fail 349
Legislature enacted section 4, the most significant Virgin Islands judicial decisions were being rendered by the District Court, which — although hearing cases that in other jurisdictions would ordinarily be heard by a local court — was essentially a federal creature that was created by federal law and consisted of federal judges appointed by the President and confirmed by the United States Senate. Moreover, even though the Virgin Islands local judiciary continued to expand and receive greater jurisdiction over local matters in the decades that followed, all decisions rendered by the Superior Court and its predecessor courts continued to be reviewed on appeal by the District Court, which made it very difficult to attain the goal of establishing an indigenous Virgin Islands jurisprudence given that local judges lacked the ability to issue decisions that would constitute binding precedent in the territory.
A pivotal change occurred, however, when Congress subsequently amended the Revised Organic Act of 1954 to authorize creation of a local appellate court. When the Legislature established this Court in 2004, it reposed in this Court the supreme judicial power of the Territory. This includes the power to both interpret local law and modify the common law. . . . Significantly, section 21 of title 4 represents both the first time that a local court created by the Legislature—as opposed to Congress—was invested with supreme judicial power, as well as the first time that a local appellate court consisting entirely of local judges appointed by the Governor with the advice and consent of the Legislature would review on direct appeal decisions issued by a local trial court. Given that section 21 and section 4 were both passed by the same legislative body, and section 21’s conferral of supreme judicial power upon on this Court is inconsistent with section 4’s mandate that courts follow the Restatements, we conclude that the adoption of section 21 of title 4 in 2004 supersedes and alters section 4 of title 1, which is one of the initial provisions of the Virgin Islands Code that were adopted in 1957, and that therefore this Court and—to the extent not bound by precedent, the Superior Court—may determine the common law without automatically and mechanistically following the Restatements.217
217. Id. at 978–79 (citations, quotation marks, and footnote omitted). 350 Stetson Law Review [Vol. 46
Answering in the negative the second question it raised, the Supreme Court of the Virgin Islands held that the 1957 reception statute does not require that it apply any of the Restatements. Having answered the preliminary questions, Banks then turned to the question the Third Circuit certified. After acknowledging the “burden” of “disrupt[ing] the state of the law in the Virgin Islands” and according the “great respect” persuasive Virgin Islands authority is “entitled to,”218 the Court nonetheless declined to retain the status quo because the status quo in the Virgin Islands—refusing to allow lessors to be held strictly liable for leasing a defective product—was no longer the majority rule, and arguably was not even the majority rule when first decided in the Virgin Islands.219 And so, the answer to the Third Circuit’s question was that “Virgin Islands local courts should apply sections 1 and 20 of the Third Restatement and allow lessors to be held strictly liable for injuries resulting from a defective product.”220
V. BANKING ON BANKS
On the heels of Banks came Matthew v. Herman.221 Dermont Herman had sued Matthias Matthew in 2007 for “damages based on two common law causes of action, alienation of affection and criminal conversation, revolving around Matthew’s affair with Herman’s wife. The jury awarded Herman $125,000 and costs.”222 Matthew appealed in 2009 and claimed on appeal that neither cause of action should be recognized under Virgin Islands common law. Relying on Banks, the Supreme Court agreed, reversed Herman’s judgment, and remanded with instructions to dismiss the complaint.223 However, because Banks had been issued after Matthew’s appeal was already pending (and after the case had been considered on June 10, 2011 without oral argument),224 the Virgin Islands Supreme Court ordered supplemental briefing on the impact of Banks on Matthew’s
218. Id. at 981. 219. Id. at 982–84. 220. Id. at 985. 221. 56 V.I. 674 (V.I. 2012). 222. Id. at 675–76. 223. Id. at 684–85. 224. Matthew v. Herman, S. Ct. Civ. No. 2009-0074, record of proceedings (June 17, 2011). 2017] Too Big to Fail 351 appeal.225 The Court in Matthew then distilled Banks into three factors: “the case law of the Virgin Islands,” the “position taken by” “the majority of courts from other jurisdictions,” and “the soundest rule for the Virgin Islands.”226 Applying these three factors compelled the conclusion that the Virgin Islands should not recognize amatory torts. No reported decision in the Virgin Islands had ever cited Restatement (First) of Torts sections 683, 685 or Restatement (Second) of Torts sections 683, 685.227 The majority of other American jurisdictions have abolished “the torts of alienation of affection and criminal conversation.”228 So, because the Virgin Islands never recognized it and other jurisdictions do not, and because both torts “are based on antiquated concepts of women as property and are destructive to existing marriages,”229 the Court held the soundest rule was not to recognize either tort. After Matthew, the Supreme Court of the Virgin Islands continued to dance with the Restatements and the reception statute. In Burd v. Antilles Yachting Services, Inc.,230 for example, decided after Matthew, the Court cited Banks, but then applied the Restatements without considering or analyzing any of the Banks factors, explaining that, “by operation of 1 V.I.C. § 4, the Restatement provisions . . . in addition to others that may be applicable under the facts presented, serve as the rules of decision on this issue.”231 Similarly in Maso v. Morales,232 the Court explained Banks, the restatements, and the reception statute as follows:
In the absence of a local law on the subject, or binding case law, [s]ection 4 of Title 1 provides that the Restatements of Law shall be the rules of decision applied by the courts. 1 V.I.C. § 4. See also Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 980 (V.I. 2011) (indicating that this Court may create
225. Matthew, 56 V.I. at 681. 226. Id. at 680. 227. Id. at 682. 228. Id. 229. Id. at 684. 230. 57 V.I. 354 (V.I. 2012). 231. Id. at 362 (citing Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 973 (V.I. 2011)). 232. 57 V.I. 627 (V.I. 2012). 352 Stetson Law Review [Vol. 46
common law rules, and, therefore, this Court is not bound by the Restatements).233
Yet, in Chapman v. Cornwall,234 issued a year and a half after Banks, the Court stated that the “Restatements of the Law may apply to the Virgin Islands through 1 V.I.C. § 4, subject to the authority of this Court and the Superior Court to shape the common law of the Territory.”235 Then in Simon v. Joseph,236 the Court held that “as the highest local court in the Virgin Islands” it “possesses the inherent and statutory authority to shape the common law of the Territory,” authority that also “includes determining the existence and elements of a common law cause of action.”237 And then in Brunn v. Dowdye,238 the Court concluded that “the Restatements no longer constitute the rules of decision in [the] Virgin Islands” because “1 V.I.C. § 4 . . . was superseded by the creation of [the Supreme] Court.”239 Finally, in Thomas v. Virgin Islands Board of Land Use Appeals,240 the Court held that “1 V.I.C. § 4 . . . was implicitly repealed by the Legislature when it enacted section 21 of title 4 and vested [the Supreme] Court with the supreme judicial power of the Territory, which includes the power to modify the common law.”241 And then came Connor.242 The Court’s equivocation during the first few years after Banks is understandable. Both Burd and Maso said the Restatements were still binding; Chapman, backpedaling, said the Restatements might apply. Brunn noted that Banks had said that the creation of a local supreme court superseded the reception statutes; but then Thomas characterized Banks as having implicitly repealed the reception statute. So, in a sense, Banks was not fully Banks yet—not until Connor. Yet, despite its own prior vacillations, the Supreme Court in Connor summarily reversed the Superior Court because it had “erroneously invoked section 4 of title 1 of the Virgin Islands Code—an effectively
233. Id. at 633 (emphasis added). 234. 58 V.I. 431 (V.I. 2013). 235. Id. at 441 n.14 (emphasis added) (citing Banks, 55 V.I. at 974–87). 236. 59 V.I. 611 (V.I. 2013). 237. Id. at 622–23. 238. 59 V.I. 899 (V.I. 2013). 239. Id. at 911 n.10. 240. 60 V.I. 579 (V.I. 2014). 241. Id. at 591 (citations omitted) (quotation marks and ellipsis omitted). 242. Gov’t of the V.I. v. Connor, 60 V.I. 597 (V.I. 2014) (per curiam). 2017] Too Big to Fail 353 repealed statute—in automatically and mechanistically applying the Restatements of the Law.”243 In language strikingly similar to Burd, the Superior Court in Connor quoted title 1, section 4 of the Virgin Islands Code and cited Banks in a footnote and then in the body of the opinion applied various provisions from the Restatements.244 In Connor, the Supreme Court concluded that “citing to Banks yet nonetheless failing to perform a Banks analysis and instead applying the former 1 V.I.C. § 4” was reversible “error.”245
[M]echanistic and uncritical reliance on the Restatements has the effect of inappropriately delegating the judicial power of the Virgin Islands to the American Law Institute and to the governments of other jurisdictions, without any regard for determining the best rules for the Virgin Islands. In fact, one commentator has observed that “the wholesale adoption of the Restatements might fairly be described as an invasion” and that the resulting “interruption of the normal common-law- making process may actually be affirmatively harmful” to the Virgin Islands. While such blind reliance on the Restatements may have been justified prior to section 4’s implicit repeal in 2004, it is clear that, since the creation of this Court, the Restatements no longer hold an automatic preferred status in Virgin Islands law, but as in all other jurisdictions, merely represent persuasive authority, just like law review commentaries and decisions rendered by courts outside of the Virgin Islands.
Thus, the Superior Court, when considering a question not foreclosed by prior precedent from this Court, must perform a three-part analysis as set forth in Banks. The first step in the analysis—whether any Virgin Islands courts have previously adopted a particular rule—requires the Superior Court to ascertain whether any other local courts have considered the issue and rendered any reasoned decisions upon which litigants may have grown to rely. The second step— determining the position taken by a majority of courts from other jurisdictions—directs the Superior Court to consider all potential sides of an issue by viewing the potentially different
243. Id. at 599. 244. See Connor v. Gov’t of the V.I., No. SX-10-CV-518, 2013 WL 10185754, at *4 n.2 (V.I. Super. Ct. Aug. 29, 2013) (unpublished); id. at *4 (citing to the Restatement (Second) of Torts and the Restatement (Third) of Agency for the analysis). 245. Connor, 60 V.I. at 602. 354 Stetson Law Review [Vol. 46
ways that other states and territories have resolved a particular question. Finally, the third step in the Banks analysis—identifying the best rule for the Virgin Islands— mandates that the Superior Court weigh all persuasive authority both within and outside the Virgin Islands, and determine the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands.
As we explained in Banks itself, the Superior Court possesses, in the absence of binding precedent from [the Supreme] Court, concurrent authority with [the Supreme] Court to shape Virgin Islands common law. Our observation that the Superior Court has this authority is no accident. “Within every judicial system in the United States,” including the Virgin Islands, “courts are arranged in a pyramid,” with “trial courts at its base” and “a single court at the top with ultimate authority.” Although the Legislature vested this Court with the supreme judicial power of the territory, original jurisdiction to adjudicate particular legal issues in the first instance remains a function of the Superior Court, to be disturbed only in truly extraordinary situations. The reason for this is clear: “independent decisions of lower courts will improve the quality of appellate decisions.”246
VI. BANKS TO THE FUTURE
After Connor, Virgin Islands courts have largely accepted247—some have even embraced248—their role in the
246. Id. at 602–04 (internal citations omitted) (quoting Adams, supra note 13, at 456– 57). 247. See, e.g., Faulknor v. Gov’t of the V.I, 60 V.I. 65, 88 n.72 (V.I. Super. Ct. 2014) (“It is this Court’s view that the practical implications of Connor may prove unworkable absent a narrowing of its application.”); Huggins v. Chungani, No. ST-14-CV-115, 2014 WL 4662323, at *2 n.2 (V.I. Super. Ct. Sept. 18, 2014) (“Connor invites the Superior Court to depart, ‘in an appropriate case,’ from the holding of any binding opinions which mechanistically rely on the Restatements as a source of Virgin Islands law. This Court sees no reason for such a departure here.”) (unpublished). Cf. Wild Orchid Floral & Event Design v. Banco Popular de P.R., 62 V.I. 240, 253 (V.I. Super. Ct. 2015) (reversing and remanding internal appeal from Magistrate Division for failure to conduct Banks analysis). While the District Court of the Virgin Islands has come around to Banks recently, see, e.g., Gumbs-Heyliger v. CMW & Assocs. Corp., 73 F. Supp. 3d 617, 625–29 (D.V.I. 2014) (conducting a Banks analysis on presumptions in civil cases), one decision issued not long after Banks cannot be overlooked. In Smith v. Katz, No. 2010–39, 2013 WL 1182074, at *8 n.2 (D.V.I. Mar. 22, 2013), the District Court concluded that the Virgin Islands Supreme Court had held in Banks that 1 V.I.C. section 4 “require[s] Virgin Islands courts to apply the most recently adopted version of the Restatement at the time of consideration, unless and until the Supreme Court decides to depart from that portion of the relevant Restatement.” (citing Banks, 55 V.I. at 978 (and explaining Banks 2017] Too Big to Fail 355 development of the common law of the Virgin Islands; members of the Virgin Islands Bar, not as much.249 Reluctance to embrace Banks and Connor fully is understandable, however, if only because of the amount of work it entails. Soon after Connor, one judge of the Superior Court of the Virgin Islands expressed some very practical concerns:
[T]he Supreme Court of the Virgin Islands held that the Superior Court will be summarily reversed if it does not perform a Banks analysis in the first instance. While the Court recognizes its role in identifying and applying the common law without mechanistically and uncritically following the Restatements, it is equally clear that the Supreme Court is the highest Court in this jurisdiction that possesses the inherent power to shape the common law in the Virgin Islands—regardless of whether the Superior Court has performed a Banks analysis. Similar to the practice of other jurisdictions, the Superior Court applies the common law on a routine basis. However, unlike other jurisdictions, the Supreme Court has now tasked the Superior Court with determining the sounder common law rule, thereby causing a substantial portion of the everyday activities of the Court to
parenthetically as “noting that, in the ordinary course, Virgin Islands Courts must ‘mechanically apply the most recent Restatement’” (emphasis added))). This reading was either an intentional rejection of Banks or an incredibly fast skim-read of Banks. 248. See, e.g., Carlos Warehouse v. Thomas, 64 V.I. 173, 186–97 (V.I. Super. Ct. 2016) (conducting Banks analyses on whether to recognize debt claims and payment as a defense to debt claims); Slack v. Slack, 62 V.I. 366, 373–80 (V.I. Super. Ct. 2015) (conducting Banks analyses on whether to recognize antenuptial agreements and duress and nondisclosure of material facts as defenses). 249. Cf. Antilles Sch., Inc. v. Lembach, No. 2015-0039, 2016 WL 948969, at *14 (V.I. March 14, 2016) (“Surprisingly, Antilles School offers what could charitably be described as a cursory Banks analysis, with virtually no analysis of the third—and most important—factor.”). See also id. at *14 n.13: In its February 26, 2015 opinion . . . the Superior Court stated that only the Superior Court is required to conduct a Banks analysis, and that the parties only possess an obligation to cite to binding authority when faced with questions of law that lack precedent. However, there is absolutely no basis in any of this Court’s precedents for the proposition that attorneys are not required to fully brief all questions of law relevant to the issues that are being litigated, including all three Banks factors. (brackets, quotation marks, and citations omitted). See also Der Weer v. Hess Oil V.I. Corp., 64 V.I. 107, 114 (V.I. Super. Ct. 2016) (noting that court granted leave after Connor to file supplemental briefing but only out of roughly thirty parties responded); Benjamin v. Coral World VI, Inc., No. ST-13-CV-065, 2014 WL 2922306, at *3 n.38 (V.I. Super. Ct. June 12, 2014) (unpublished) (stating that “the Court may begin striking motions as fatally deficient” if they omit a Banks analysis). 356 Stetson Law Review [Vol. 46
become consumed with the Banks’ multi-factor balancing test (which goes beyond determining the common law based on this jurisdiction’s prior case law, but also requires analysis of a majority of courts from other jurisdictions and the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands in every question not foreclosed by prior precedent from the Supreme Court. ... [T]he practical implications of Connor may prove unworkable absent a narrowing of its application.250
Similarly, members of the Virgin Islands Bar have also expressed concerns, both about the uncertainty and the expense associated with conducting a Banks analysis. For example, during the 2015 Annual Meeting of the Virgin Islands Bar Association, one panel—Witnesses to History: The Evolution of Virgin Islands Law—featured attorneys still practicing in the Virgin Islands, who had been admitted to practice in the 1960s. One of the panelists explained how in the past, under the 1957 reception statute, a Virgin Islands attorney had only to consult the appropriate Restatement to be fairly sure of the governing law to advise his or her client accordingly. After Banks (or perhaps after Connor is more accurate), that certainty is lacking. And clients are not willing to pay for the necessary research their attorneys must perform so that the Virgin Islands courts can “undertake[] the task of developing, for the very first time, indigenous Virgin Islands jurisprudence.”251 Uncertainty still remains, including how far Banks extends.252
250. Faulknor, 60 V.I. at 87 n.72 (citations, quotation marks, and brackets omitted). 251. Bryan v. Fawkes, 61 V.I. 416, 454 (V.I. 2014) (citing Banks, 55 V.I. at 978; Pichardo, 53 V.I. at 947–48). In contrast, Matthew is an example of how cost and expense to attorneys and clients can be saved by addressing Banks early on. Matthew proceeded through motion practice, discovery, trial, and appeal, only to have the entire case dismissed on remand. In the Virgin Islands, costs are taxed to the prevailing party, except in personal injury cases. 252. Cf. Vanterpool v. Gov’t of the V.I., 63 V.I. 563, 579–81 (V.I. 2015) (citing Banks and Connor and expressing concerns, similar to those raised in Banks about legislature’s delegation of authority to the American Law Institute, about the Superior Court’s “delegation” of its rule-making authority to federal courts); see also Malloy v. Reyes, 61 V.I. 163, 177 n.11 (V.I. 2014) (noting that a Banks analysis must “exclude cases [from other jurisdictions] relying on state statutes”); Der Weer, 61 V.I. at 105 n.4 (explaining that a Banks analysis, as such, is not necessary when deciding how to construe a statute but that broader concern for the soundest rule is); People v. Frett, No. ST-08-CR-452, 2015 V.I. LEXIS 104, at *3 (V.I. Super. Ct. Sept 4, 2015) (unpublished) (stating that “a Banks analysis is not applicable to criminal cases”). 2017] Too Big to Fail 357
VII. CONCLUSION
Professor Hall reasoned that colonial legislatures initially adopted statutes to receive the common law to provide a measure of certainty after the Declaration of Independence.
Among the many problems engendered by the severance from the mother country through the historic Declaration of Independence, was that of what law should American judicial tribunals thereafter apply as the rule of decision of specific cases. The substitution of the people for the king as the source of sovereignty made it necessary to exercise some caution in adopting the common law inasmuch as a good many of the old rules would not fit into the political philosophy of the newborn states. After the Declaration of Independence, three primary methods were used by the thirteen American states in dealing with the problem of what English law should be recognized thenceforth.253
Virginia—and later states and territories that borrowed or patterned their statutes on Virginia’s statute—followed by enacting similar statutes to adopt English common law and English statutes.254 In contrast, the majority of the other colonies—namely New Jersey, Pennsylvania, Delaware, Massachusetts, Maryland, New Hampshire, North Carolina, and New York—took another approach, adopting “‘the common law of England, as well as so much of the [English] statute law, as have been heretofore practiced’” before declaring independence from England.255 Only Connecticut (and perhaps now the Virgin Islands after Banks) took the approach of adopting the common law through precedent.256 Because almost all states and territories have formally received the common law through statute or precedent, the Virgin Islands was not unique in 1921 when the Colonial Councils adopted statutes to receive the common law. To be sure, the Virgin Islands’ first reception statute—borrowed from the Territory of Alaska, which had received it from Congress—was not a model of perfection. By referring to English common law as
253. Hall, supra note 1, at 798. 254. Id. 255. Id. at 799 (quoting N.J. CONST., art. XXII (1776)). 256. Id. at 800. 358 Stetson Law Review [Vol. 46 adopted and understood in the United States, the statute left courts without any guidance as to which jurisdiction’s understanding of the common law to follow. But almost all reception statutes omit a specific jurisdiction,257 so most courts have had to muddle through and apply the best rules as they have seen fit. This is the beauty and the beast of the common law. But all this changed in 1957 when the Virgin Islands parted company with the rest of the nation. The difference in the Virgin Islands—and later the Northern Mariana Islands—was that the 1957 reception statute became more problematic over time. Other reception statutes are static, a snapshot in time. So, courts have a common starting point. In this way, Manbodh may have been correct in looking to the Restatement (First) as the starting point for the common law of the Virgin Islands. That is, only if the Legislature’s intent was not to remedy the confusion caused by the 1921 Codes and to convert the Restatements into a quasi-civil code. But the restatements of the law were (and still are) being revised and restated. Understandably, the courts in the Virgin Islands felt themselves bound to keep current with the changes in the law. Manbodh assumed that the Legislature of the Virgin Islands was probably unaware that the American Law Institute planned to periodically revise the Restatements;258 Hartzog called that supposition into question.259 Putting aside valid concerns over legislative history, it is clear—when section 4 of title 1 is considered within the broader, national context—that the Legislature of the Virgin Islands would not have intended for the courts in the Virgin Islands to treat the Restatements as a quasi-common-law civil code. Instead, it is more likely that the 1957 statute with its “restatement mandate” was intended to remedy the confusion and uncertainty that existed with the 1921 reception statutes. In a foreword to the first volume of the Virgin Islands Reports,
257. But cf. D.C. CODE § 45-401(a) (“The common law, all British statutes in force in Maryland on February 27, 1801 . . . in force in the District of Columbia on March 3, 190, shall remain in force except insofar as the same are inconsistent with, or are replaced by, some provision of the 1901 Code.”). 258. See In re Kelvin Manbodh Asbestos Litig. Series, 47 V.I. 215, 235 (V.I. Super. Ct. 2005) (characterizing its own reading of title 1, section 4 of the Virgin Islands Code as “compelling because . . . it is unlikely that the Legislature contemplated the amending of the Restatements at all”). 259. See Hartzog v. United Corp., 59 V.I. 58, 83–84 & n.33 (V.I. Super. Ct. 2011) (explaining the role Judge Albert B. Maris played in developing the Virgin Islands Code and noting his service as an advisor to the American Law Institute). 2017] Too Big to Fail 359
Judge Albert B. Maris discussed the value of the common law in the Virgin Islands:
With the enactment of the Codes of Law for the two former municipalities in 1920 and 1921 the Virgin Islands came under the American system of statutory and common law. .. . The common law as understood and applied in the United States was specifically made applicable to the Virgin Islands by the municipal codes and is continued by the Virgin Islands Code.
The common law, however, is based on the rule of stare decisis, that is, the binding authority as a precedent of a previous decision by the courts in a similar case, and is accordingly frequently called case law. Its genius is that it develops and grows from case to case molding its rules upon the precedents of the past and applying them to so as to deal justly with new problems as they arise. For the function of the common law, therefore, it is essential that the opinions rendered by the courts in past cases be readily available to the bench and bar. Access to the many opinions which have interpreted and applied statutory law is equally needed.
Heretofore in the Virgin Islands the opinions of the local courts for the most part have not been readily available, being buried unpublished, undigested and unindexed in the voluminous files of the clerks of the courts. The Virgin Islands Reports accordingly meet a pressing need. For the round out and complete the legal tools with which the courts and the bar may administer the rules of the common law as well as consistently apply the statutes.260
Judge Maris was “intimately involved in drafting” the Virgin Islands Code “and in promulgating the Restatements,” so it is reasonable to believe he also “would have known that the American Law Institute envisioned establishing ‘a system by which the legal profession will be informed of changes in the law as expressed in the first Restatement, and when the time is ripe therefor, produce a revision of an entire subject.’”261 Yet, if the Legislature really did intend for the courts to mechanically and uncritically apply the Restatements—either until the Legislature
260. 1 VIRGIN ISLANDS REPORTS VIII (1959). 261. Hartzog, 59 V.I. at 84 (quoting RESTATEMENT IN THE COURTS:HISTORY OF THE AMERICAN LAW INSTITUTE AND THE FIRST RESTATEMENT OF THE LAW 21 (1945)). 360 Stetson Law Review [Vol. 46 found the time to codify the common law or until the Virgin Islands attained more autonomy—then, there would not have been a need to rescue Virgin Islands precedent from the archives of the clerks’ offices and publish, digest, and index it. Said differently, conferring on the Restatements a status akin to a civil code would also mean that the Virgin Islands returned to its former status as a civil law, not a common law jurisdiction. Yet, in many ways, unintentionally for sure, that is what happened once the 1957 reception statute was adopted. Banks put an end to all of this. But it also raises more questions than it answered and calls into question (indirectly to be sure) both the effect and necessity of reception statutes. Arguably, adopting a reception statute was only necessary as a temporary measure for the thirteen original colonies, a placeholder pending the result of the Revolutionary War. But once independence was obtained, was it necessary for the new states to adopt or to reenact statutes to receive the common law? Put another way, if the brilliance of the American experience is that “[t]he Executive, the Legislative and the Judiciary are coordinate and equal,” that none can “encroach on the functions of the others,” and that instead all are “subject to the Constitution of the United States and the principles of government which that Constitution contains,”262 then how can two co-equal branches adopt a statute that dictates how the third branch functions? Are reception statutes constitutional?263 One question raised after Banks is, was Banks correctly decided? As the title of this Article suggests, I believe that it was . . . for the most part. Banks is not remarkable, insofar as it held that the highest court has the inherent authority to say what the law is. Marbury v. Madison concluded as much two hundred years earlier.264 Similarly, other jurisdictions have expressed concerns as to the blanket way the common law was received: some question whose common law was received265 and
262. People v. Francis, 1 V.I. 359, 365 (D.V.I. 1936). 263. This question necessarily excludes the reception of the common law within a constitution. 264. 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). 265. Professors Blume and Brown cite a communication sent by the legislature of the Territory of Indiana to Congress requesting clarification: A memorial to Congress submitted by the Indiana Legislature in 1814 suggested the propriety of pointing out by law what common law the ordinance 2017] Too Big to Fail 361 also whether English statutory law was included; others question more generally the whitewashing effect the common law has on local customs and traditions.266 So, the Virgin Islands’ struggles
refers to, whether the common law of England, of France, or of the Territory over which the ordinance is the constitution. If it should be determined that, by the expression of the ordinance, a common law jurisdiction should be located on the common law of England, it is essential to define to what extent of that common law the judges shall take cognizance; whether the whole extent of feudal and gothic customs of England; whether the customs, or unwritten law shall be taken with the statute law, and that to form the common law to govern the judges; or whether the unwritten and statute law is to be taken in contradistinction to the laws, customs, and rules of chancery; or whether it includes that law which is common to all. Blume & Brown, supra note 17, at 52 (citation and footnotes omitted) (ellipsis and quotation marks omitted). The authors also discuss Louisiana’s rejection of English common law. The Orleans Organic Act of 1804 made no reference to “common law,” nor did the amended act of 1805 which put in force some of the provisions of the Northwest Ordinance. Nevertheless, lawyers newly settled in Orleans took the position that by extending provisions of the Northwest Ordinance to the Territory, Congress had substituted the English common law for the law previously in force. A contrary position was taken by Edward Livingston and local French lawyers, and the question was argued at length in a test case. According to one of his biographers, Livingston argued that the words “common law” should be construed as the “common law of Louisiana,” and this position was in fact sustained by the court. Id. at 53 (footnotes omitted). See also id.: If that clause was put in force, everything was at an end in our jurisprudence; our ancient laws would have disappeared, and upon their venerable ruins would have been erected a system which none of us was acquainted with, which nowhere exists in a body of law, and which its warmest advocates themselves do hardly know.
(citation omitted) (purportedly remarks of Livingston). 266. For example, some Native American courts have changed the definition of the common law to encompass their own customs and traditions. Because established Navajo customs and traditions have the force of law, this Court agrees with . . . the term ‘Navajo common law’ rather than ‘custom;’ as that term properly emphasizes the fact that Navajo custom and tradition is law, and more accurately reflects the similarity in the treatment of custom between Navajo and English common law:
The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
Navajo custom and tradition may be shown in several ways: it may be shown through recorded opinions and decisions of the Navajo courts or through learned treatises on the Navajo way; it may be judicially noticed; or it may be 362 Stetson Law Review [Vol. 46 with its own reception statutes is not remarkable. But Banks is remarkable (and perhaps went too far) in holding that the Legislature repealed the Virgin Islands’ reception statute when it established a court of last resort. This no other jurisdiction has done. By throwing the restatement baby out with the bathwater of the common law,267 it is unclear what remains now. Even the core of the common law is up for grabs now.268 In holding that the Legislature had implicitly repealed section 4 of title 1 of the Virgin Islands Code, the Supreme Court of the Virgin Islands assumed in Banks that reception statutes (implicitly since the court never addressed what type of statute section 4 is) are valid and that legislatures (in contrast to the people through a constitution) can dictate by statute the legal method that courts must apply. So, arguably then, the Legislature of the Virgin Islands could adopt a new reception statute for the Virgin Islands. Similarly, if the authority through which the Virgin Islands receives the common law is now gone, and in its place is a court of last resort with inherent authority to shape the law, then the question arises what law can such a court adopt. It is not inconceivable that years from now the Supreme Court of the Virgin Islands could overrule Banks and adopt (within its
established by testimony of expert witnesses who have substantial knowledge of Navajo common law in an area relevant to the issue before the court. In re Estate of Belone, 5 Navajo R. 161 (1987) (citation omitted) (quotation marks omitted). See generally RAYMOND D. AUSTIN,NAVAJO COURTS AND NAVAJO COMMON LAW (2009). Cf. E. Band of Cherokee Indians v. Cucumber, 3 Cher. R. 66, 67 (N.C. Cherokee S. Ct. 2003): The result reached in this appeal is also supported by the customs and traditions of the Cherokee Nation. In terms of law, these customs and traditions form what may be referred to as the ‘Cherokee Common Law’. . . . This Cherokee Common Law continues in effect except as modified by the governing charter, tribal ordinances, or acts of the United States Congress and treaties. 267. Cf. Benson, supra note 186, at 597 n.9 (“In 1776, the Commonwealth of Pennsylvania repealed the common law, but soon found that they had thrown the baby out with the bath water. In 1777, the Commonwealth revived the common law up to and including May 14, 1776.”). 268. See, e.g., Machado v. Yacht Haven USVI, LLC, 61 V.I. 373, 380 (V.I. 2014) (“[W]e agree with the Superior Court’s assessment that the foundational elements of negligence . . . are so widely accepted and fundamental to the practice of law in the Virgin Islands and every other United States jurisdiction that maintaining these elements is unquestionably the soundest rule for the Virgin Islands.” (citation omitted) (quotation marks and ellipsis omitted)). 2017] Too Big to Fail 363 inherent authority to shape the law and in the absence of a statutory mandate to apply English common law) another approach, perhaps even return to Danish common law. What Danish common law and customs (distinguished from statutory law) were in force in 1917 (again, in the sense of judicial precedent and practice) and whether it was, is, or should be part of the Virgin Islands’ common law is still an open question in the Virgin Islands.269
269. But see Antilles Sch., Inc. v. Lembach, No. 2015-0039, 2016 WL 948969, at *17 n.21 (V.I. Mar. 14, 2016) (questioning inferentially whether Danish common law was incorporated into Virgin Islands law): [P]rior to its purchase by the United States in 1917, the Virgin Islands had been a colony of Denmark. Because we decline to adopt remittitur, and for largely the same reasons would not adopt additur, we do not address here whether Congress, by incorporating the Seventh Amendment by reference through the 1968 amendments to the Revised Organic Act, intended for this reference to ‘the common law’ to refer to the common law as it existed in 1791, or as it existed in 1968, or to encompass only the common law of England. (citing, inter alia, Browning v. Browning, 9 P. 677, 679–85 (N.M. 1886), for the holding that New Mexico’s organic act did not incorporate England’s common law “but the common law that existed prior to New Mexico’s admission as a territory, including the civil law of Mexico”) (additional citation omitted)). Cf. Blume & Brown, supra note 17, at 518 (“The Virgin Islands should be examined for remains of the law of Denmark.”); Bowman, supra note 17, at 411 (discussing the Virgin Islands’ legal heritage and its relationship to Denmark). One procedure Danish courts employed—and which continues to today—is conciliation. See, e.g., Clen v. Jorgensen, 1 V.I. 497, 503 (3d Cir. 1920): [I]t appears that in the courts of original jurisdiction in the Virgin Islands, under the continuation of Danish procedure, a cause is begun in what is called the reconciling court. To the judge of this court the parties submit their controversy quite informally, and the judge, with equal informality, endeavors to reconcile their differences. In vindication of such informal judicial procedure it is interesting to learn that most of the litigation in these islands is successfully ended in this court. If, however, the judge fails to compose the controversy by process of reconciliation, as happened in this case, the cause is then transferred to the ordinary or district court. In this court the same judge sits (always in the presence of two court witnesses, presumably representing the public) and hears the case without a jury. As we gather from the protocol before us, oral evidence is seldom presented. The case is tried on written pleas. These pleas bear no resemblance in name or number to pleadings either at common law or under code practice. They contain a recital of what the parties regard to be the evidence bearing on their respective sides, supplemented by discursive argument. They are filed without verification, and to the admission or rejection of evidence so pleaded, no exceptions are noted.
Accord Axel Teisen, The Danish Judicial Code, 65 U. PA. L. REV. 543, 560–61 (1917) (discussing “the procedure to be followed in civil cases . . . that conciliation must have been tried, before the action can be proceeded with” under Danish law). See 4 V.I.C. §§ 141–42 (providing for a conciliation division within the Superior Court). In contrast, one procedure (assuming it was part of Danish West Indian procedure) that did not carry over—and might be suspect under the United States Constitution if it had—was the 364 Stetson Law Review [Vol. 46
All is not lost though because Banks did not declare the 1957 reception statute invalid just because a supreme court had been established. Instead, the concern squarely raised in Banks was the validity of the restatement mandate. Since repeal by implication is the least favored canon of statutory construction, the Virgin Islands’ reception statute can still be saved. The Virgin Islands Code provides that
[i]f any provision of this Code . . . or the application of any such provision ... is determined by any court of competent jurisdiction to be invalid, such determination of invalidity shall not affect, impair, or invalidate the other provisions . . . of this Code . . . which can be given effect without the invalid provision . . . and to effect this purpose the provisions of this Code . . . are severable.270
Only the application of the Restatements was at issue in Banks. And, since the only portion of the Virgin Islands’ reception statute that conflicts with the inherent authority of courts to shape the common law is the clause that arguably required courts to apply the Restatements, Banks can be clarified to explain that the Legislature only impliedly repealed the “restatement mandate.” Once the offending clause that inherently conflicts with the establishment of a court of last resort is severed, section 4 of title 1 would provide: “The rules of the common law . . . shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.” In the end, section 4 of title 1 of the Virgin Islands Code— and its predecessor, section 6 of chapter 13 of title IV of the 1921 Codes—are just reception statutes: statutes by which the Virgin Islands formally received English common law as expressed and understood in America. Viewed against the backdrop of how Virgin Islands courts understood and applied the 1921 reception statutes and later the 1957 reception statute, Banks makes sense. But not when viewed within the broader, national context of how other jurisdictions have traditionally received the common law. And it is in this context that Banks raises serious questions
practice of fining judges for delays in moving their cases. See Teisen, supra, at 569 (“The code enjoins the lower and superior courts to decide their cases without delay, and if they do not do it, the Supreme Court will, on appeal, reprove and, in flagrant cases, fine delinquent judges.”). 270. 1 V.I.C. § 51. 2017] Too Big to Fail 365 for the Virgin Islands and beyond. If the Supreme Court of the Virgin Islands does not take up the issue, the Legislature of the Virgin Islands should reenact the Virgin Islands’ reception statute without its “restatement mandate.” Essentially, Banks has now become too big to fail.
A COMMON LAW OF AND FOR THE VIRGIN ISLANDS
James L. Huffman*
Section 4 of Title 1 of the Virgin Islands Code provides that “[t]he rules of the common law, as expressed in the restatements of the law approved by the American Law Institute . . . shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.”1 In Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court ruled that its 2004 creation as “‘the supreme judicial power of the Territory’”2 necessarily “supersedes and alters [S]ection 4” and authorizes Virgin Islands courts to “determine the common law without automatically and mechanistically following the Restatements.”3 In a 2004 article, Professor Kristen David Adams suggested that the Virgin Islands would make a good laboratory for studying the common law process.4 While it is probably safe to say that few people want to think of themselves as living in a laboratory, Adams was correct in thinking that students of the common law might have an unusual opportunity to witness the emergence of homegrown common law post-Banks. In fact, Adams made clear that homegrown is what the common law process is all about.5 According to Adams, “the common law naturally (1) develops organically over time, (2) responds to contemporary local mores and needs, and (3) seeks to incorporate the lessons of
* © 2017, James L. Huffman. All rights reserved. Dean Emeritus, Lewis & Clark Law School. J.D., University of Chicago, 1972; M.A., Fletcher School of Law and Diplomacy, 1969; B.S., Montana State University, 1967. 1. 1 V.I. CODE ANN. § 4 (repealed 2004), see Gov’t of the V.I. v. Connor, 60 V.I. 597, 600 (V.I. 2014). 2. 55 V.I. 976, 978 (V.I. 2011) (quoting 4 V.I. CODE ANN. § 21 (2011)). 3. Id. at 979. 4. Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 HOFSTRA L. REV. 423 (2004). 5. Id. at 446. 368 Stetson Law Review [Vol. 46 experience.”6 By this understanding, the pre-Banks Virgin Islands were not truly governed by common law, notwithstanding that Section 4 purported to make “[t]he rules of the common law . . . the rules of decision in the courts of the Virgin Islands.”7 The rules expressed in the Restatements might have developed “organically over time” incorporating “the lessons of experience,” but not in the Virgin Islands or in response to its “local mores and needs.”8 Imported rules might be the common law of their jurisdictions of origin, but they are just imported rules in the receiving jurisdiction. This understanding of common law as homegrown law might be questioned by those familiar with the general American reception of the common law of England. But while American states received English common law as it stood at the time of their creation,9 there was nothing resembling the Restatements to tie the hands of local courts. For the original thirteen states, English common law was already local law; and in all the states there was never any doubt local courts would apply and develop the law in response to their own “lessons of experience,”10 although English law would remain as persuasive but not binding precedent.11 Lawyers trained in modern American law schools are likely to think of the common law as a body of law that originated in England but now exists as a free-floating set of rules not tethered to any particular jurisdiction. Law students learn that what distinguishes the common law from statutory and administrative law is that it is judge-made, as if judges are simply an alternative to legislatures and administrative agencies. They learn the common law from national casebooks still inspired, more than a century later, by the Langdellian notion that law is a science and judges are like scientists in search of the true law.12 They learn
6. Id. 7. Banks, 55 V.I. at 973 (quoting 1 V.I. CODE ANN. § 4, repealed by 4 V.I. CODE ANN. § 21 (2004)). 8. Adams, supra note 4, at 446. 9. Richard C. Dale, Adoption of the Common Law by the American Colonies, 30 AM. L. REG. 553, 553–54 (1882). 10. Adams, supra note 4, at 446. 11. Dale, supra note 9, at 553–54. 12. See Christopher Langdell, Address delivered Nov. 5, 1866, reprinted in 3 LAW Q. REV. 123, 124 (1887) (asserting that “law can only be learned and taught in a university by means of printed books”). Langdell introduced the case method of instruction to legal education in 1870 at the beginning of his quarter-century tenure as dean of the Harvard 2017] A Common Law of and for the Virgin Islands 369 that the precedents once obscured in dusty state reporters and now available in a split second through the magic of search engines are the data from which reason will extract the correct rule, independent from where the judge happens to sit. While students may be reminded now and then that the law can vary from state to state, they qualify to practice law by passing a test that treats common law subjects as unitary. It is this understanding of the common law as a singular body of rules largely independent from its origins that underlies the American Law Institute’s restatement project. Smart lawyers, in the spirit of the law school classroom, engage in Langdellian-style, reasoned discovery of the rules that best comport with prior judicial decisions across state jurisdictions. The “local mores and needs” that led to those decisions have little relevance to this search for the best rule to be applied in every jurisdiction.13 But as Adams describes it, there is not a single common law.14 Rather common law, by its nature, is homegrown. It is place and time specific. In relying on the Restatements as the default law pursuant to Title I, Virgin Islands courts were applying, at best, the common law of other jurisdictions. The Banks ruling requires Virgin Islands courts to develop and apply their own common law.15 In this Article the Author considers, from the perspective of a distant outsider with a keen interest in the common law process, how Virgin Islands courts have met the challenge set before them by Banks. Part I examines the historic common law process and concludes that it has been, with occasional exceptions, a bottom- up, supply-side, organic process. Part II describes and analyzes the Virgin Islands Supreme Court’s ruling in Banks. Part III reviews post-Banks Virgin Islands court decisions applying the analysis mandated by Banks. Part IV concludes that the Virgin
Law School. His core idea, widely shared at the time, was that lawyers and judges are scientists, like biologists and physicists, in search of objective truth. For legal scientists, the true law was to be discovered in the accumulated data contained in the law library. Id. 13. Adams, supra note 4, at 446. 14. Id. at 443; accord DeLoach v. Alfred, 952 P.2d 320, 322 (Ariz. Ct. App. 1997), vacated on other grounds, 960 P.2d 628 (Ariz. 1998) (citing Cannon v. Dunn, 700 P.2d 502, 503 (Ariz. Ct. App. 1985)) (providing that the Restatement is used to decide issues of first impression because it represents the prevailing law on a particular subject in the United States). 15. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 976, 979 (V.I. 2011). 370 Stetson Law Review [Vol. 46
Islands courts, pursuant to the Banks analysis, have begun to develop a common law of and for the Virgin Islands.
I. COMMON LAW PROCESS
Blackstone divided the municipal laws of England into “the lex non scripta, the unwritten, or common law; and the lex scripta, the written, or statute law.”16 The lex non scripta was unwritten because “the nations among which they prevailed had but little idea of writing.”17 It came to be called the common law “more probably, as a law common to all the realm.”18 But not all of the common law was common to all the realm. “The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.”19 It is such particular laws affecting only inhabitants of the Virgin Islands, it would seem, that the Virgin Islands Supreme Court envisioned in its Banks ruling. In England, Blackstone reported that these particular customs were guaranteed by acts of parliament made necessary by the fact that compilations of custom, perhaps resembling the modern Restatements, “collected at first by [K]ing Alfred, and afterwards by [K]ing Edgar and Edward the confessor”20 sought to make the law common across the entire realm. Whether motivated by a benevolent desire to facilitate interactions across the realm or a monarchical ambition to consolidate power, the establishment of uniform laws applicable to every corner of the realm ran counter to the process by which the foundational customs had come into existence. Noting that some of “[o]ur antient lawyers . . . insist with abundance of warmth, that . . . customs . . . as old as the primitive Britons . . . [have] continued down, through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated,” Blackstone sides with Selden in concluding that the Romans, Picts, Saxons, Danes, and Normans “insensibly introduced and incorporated many of their own
16. 1 WILLIAM BLACKSTONE,COMMENTARIES ON THE LAWS OF ENGLAND 63 (1765). 17. Id. 18. Id. at 67. 19. Id. at 74. 20. Id. 2017] A Common Law of and for the Virgin Islands 371 customs with those that were before established.”21 In other words, the customs from which the common law of England derived evolved over time, not only because Romans, Picts, and others brought with them their customs, but also because local customs necessarily adapted to changing circumstances. These “customs or maxims [are] to be known, . . . and . . . their validity to be determined . . . by the judges in the several courts of justice. They are the depository of the laws.”22 Given that common law is founded on custom, presumably because custom reflects the practices and informs the expectations of the people, and given that customs evolve over time in response to external and internal influences, it would seem that common law should evolve over time. How does this happen if “it is an established rule [for judges] to abide by former precedents, where the same points come again in litigation?”23 Blackstone is clear that
it is not in the breast of any subsequent judge to alter or vary from [precedent], according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.24
The only exceptions to this rule of decision, said Blackstone, are “where the former determination is most evidently contrary to reason . . . [or] to the divine law.”25 In such cases, “it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm.”26 Blackstone’s allowance that judges may decide contrary to precedent where precedent “is most evidently contrary to
21. Id. at 64. John Selden was a seventeenth-century legal historian who was responsible for tracing the roots of English law to Roman law. See Michael Bertram Crowe, Eccentric Seventeenth-Century Witness to the Natural Law: John Selden (1584– 1645), 12 NAT. L.F. 184, 185, 187 (1967) (surveying the life and works of John Selden and describing his efforts to uncover the origins of English law). 22. BLACKSTONE, supra note 16, at 69. 23. Id. 24. Id. 25. Id. at 69–70. 26. Id. at 70. 372 Stetson Law Review [Vol. 46 reason”27 has led some judges and commentators to contend that it is within the common law judge’s authority and responsibility to adapt the law to changing circumstances and public needs— that it is contrary to reason to adhere to outdated rules.28 But how is the judge to determine that a rule is outdated as a result of changed circumstances and public needs? How is a judge to determine what different rule is better under existing circumstances and in light of current public needs? The only occasions for judges to make such determinations are in the cases that come before their courts. Blackstone is clear that the judge may not rely upon his “private sentiments.”29 The litigants will contend for a different rule only if it serves their private ends. So the institutional framework within which the judge functions is not conducive to the formulation of public policy or the enactment of laws designed to implement public policy. Rather, the judicial process is designed to find the facts in particular cases and apply the settled law to those facts. These inherent constraints on the judge as law reformer and lawmaker do not mean that common law is frozen in time. While Blackstone is adamant that judges are “not delegated to pronounce a new law, but to maintain and expound the old one,” his description of the source of common law suggests, also, how the law is to change.30 In dismissing a distinction between “established customs” and “established rules and maxims,” Blackstone says the authority of the latter “rests entirely upon general reception and usage; and the only method of proving, that this or that maxim is a rule of the common law, is by shewing that it hath been always the custom to observe it.”31 The authority of common law rules and of customs derives from their “reception and usage.”32 As old customs are no longer observed and new customs are received and relied upon, the common law judge will adapt the rules accordingly. The law thus evolves not according to the “private sentiments”33 or public policy prescriptions of judges, but in response to the expressed
27. Id. at 69. 28. E.g., Adams, supra note 4, at 449. 29. BLACKSTONE, supra note 16, at 69. 30. Id. 31. Id. at 68. 32. Id. 33. Id. at 69. 2017] A Common Law of and for the Virgin Islands 373 preferences and practices of those who rely on the law in their interactions with others. Thus the common law judge is engaged in what Douglas Whitman has labeled a “demand-side” rather than a “supply-side” enterprise.34 The public looks to the judge to know what the law is. The judge looks to the public to know what the law should be. Of course there are and always have been supply-side, law- making judges who purport to be engaged in the common law process. But if the common law originated in and derived its legitimacy from custom as Blackstone concluded, its development over time must be informed by custom. Absent that connection to the practices and preferences of what might be called consumers of the law, what lawmaking judges call the common law is that in name only. Judges may have the raw power to be lawmakers, but courts lack the institutional competence for informed lawmaking and, when making law as courts functioning under the constitutional separation of powers, they intrude upon the constitutional prerogatives of the legislature. But putting historical precedent, institutional competence, and constitutional constraints aside, the most compelling reason for adhering to the bottom-up, demand-side understanding of the common law process is that it conforms to the evolutionary nature of all real human progress. In his book The Evolution of Everything, Matt Ridley contends that “society, money, technology, language, law, culture, music, violence, history, education, politics, God, [and] morality” evolve in much the same way as biological organisms.35 “[T]hings do not stay the same; they change gradually but inexorably; they show ‘path dependence’; they show descent with modification; they show trial and error; they show selective persistence.”36 What they do not show, according to Ridley, is a plan or a planner.37 Not to say there are not planners aplenty. But while their intentions may sometimes be evident in the short term, their plans are invariably overwhelmed by natural evolutionary forces. In her 2004 article, Professor Adams draws an explicit analogy to evolutionary biology in her discussion of the common
34. Douglas G. Whitman, Evolution of the Common Law and the Emergence of Compromise, 29 J. LEGAL STUD. 753, 775–76 (2000). 35. MATT RIDLEY,THE EVOLUTION OF EVERYTHING:HOW NEW IDEAS EMERGE 8 (2015). 36. Id. 37. Id. 374 Stetson Law Review [Vol. 46 law process. Adams observes that “isolated [biological] populations often produce new species.”38 Similarly,
[B]ecause of the Virgin Islands’ unique history and identity and its geographic, political, and social isolation from the rest of the United States, the Islands naturally may have tended to develop law diverging from that of the rest of the States in a manner narrowly tailored to serve the needs of the Islands’ population.39
A common law reflective of the Virgin Islands’ unique characteristics, suggests Adams, “either may not have taken place at all or may have taken place only to a limited extent” as a result of the statutory reliance on the Restatements as de jure common law.40 The parallel, suggested by Adams, between biological evolution and the common law process is instructive in another respect. Important to the thinking of those who conceived the Restatements and to many students of the common law is that there is a common law. Langdell’s scientific approach to the study and practice of law, still a dominating if veiled force in American legal education, conceives of legal truths as no different from biological or other truths of hard science.41 Pursuant to this conception, the judge’s task is to discover the law not from “local mores and practices,”42 but from the vast sea of decisions rendered by common law judges the world over. Judges from England to California to the Virgin Islands are engaged in a shared pursuit of truth, and the Restatement project is an effort to counter the influences of a federal system in which state court judges sometimes choose to go their own way. Although Professor Adams’ basic insight is important, she reveals her Langdellian training when she suggests that liberating Virgin Islands courts from the Restatements “could lead to their becoming an important resource for the future development of the law.”43 The implication, like the laboratory argument for federalism, is that the unique perspective of Virgin
38. Adams, supra note 4, at 451. 39. Id. at 456. 40. Id. 41. Langdell, supra note 12, at 124. 42. Adams, supra note 4, at 446. 43. Id. at 451. 2017] A Common Law of and for the Virgin Islands 375
Islands courts might contribute to understanding of the common law, rather than simply development of a common law of the Virgin Islands. But it is clear that Adams understands the common law process as one that leads to multiple common laws— each suited to its time and place.44 As noted below, she suggests that the Restatements “might fairly be described as an invasion,” citing Montesquieu, Spinoza, and Machiavelli, as well as biological theory, for the proposition that such invasions are often destructive and destabilizing.45 As a solution to the perceived problem of inconsistent legal rules within and across jurisdictions, the Restatements are not unlike the balance-of-nature paradigm that has dominated environmental policy over the past several decades. Much environmental policy has been directed at correcting and avoiding human disruptions of nature’s balance, as if there is one correct state of nature.46 But, as Daniel Botkin pointed out several years ago, nature is constantly changing.47 The natural state of nature is continuous change requiring adaptation and evolution of the countless species that constitute an ecosystem. And as Emma Marris has subsequently explained, the imagined balance of nature becomes a baseline that policymakers aspire to restore: “Baselines . . . typically don’t just act as a scientific before to compare with an after. They become the good, the goal, the one correct state.”48 While few would claim the Restatements seek to restore a disrupted common law, they do reflect a pursuit for the one correct law. Like environmental policies founded in balance- of-nature thinking, the Restatements yield legal prescriptions that misunderstand the evolutionary nature of human societies and the variation from one society to another.
44. See id. at 453–56 (comparing the development of the common law in the Virgin Islands to “speciation,” a biological “process by which a single species becomes two or more species”). 45. Id. at 456–58. 46. See James L. Huffman, Designing Institutions for the Anthropocene: Getting the Incentives Right,PROP.&ENV’T RES.CENTER (PERC) (Summer 2016), available at http://www.perc.org/sites/default/files/pdfs/DesigningInstitutionsfortheAnthropocene _PERCReports-Summer2016.pdf (stating that “the ecological principles of hierarchy and self-organization are instructive in applying the concept of subsidiarity to the allocation of authority among various levels of government”). 47. DANIEL BOTKIN,DISCORDANT HARMONIES 6 (1990). 48. EMMA MARRIS,RAMBUNCTIOUS GARDEN:SAVING NATURE IN A POST-WILD WORLD 3 (2011). 376 Stetson Law Review [Vol. 46
In his book, Matt Ridley does not include a chapter on the evolution of law, but if he did it would surely look to the common law as illustrative of his thesis. The common law was designed by no one. Americans and other English colonists may have looked to Blackstone for the outline and details of the common law, but Blackstone was merely an astute reporter. There was no planner. To be sure, there have been judges along the way who sought to change the course of the common law, to improve upon what mere custom has wrought, but their designs only succeed if they fit with the many other unplanned forces that together constitute human society. It is no different for planning and lawmaking by legislators or administrative agencies. If the glove does not fit, society will not wear it, and the hand is always changing. In a democracy, legislative lawmaking has better prospects for popular embrace and acceptance for the obvious reason that, in a functioning democracy, popular needs and desires influence the lawmaking process. Judges, however, even when elected, have only their “private sentiments”49 and the perspectives of the litigants before them to inform what lawmaking they choose to do. On the other hand, judges are better positioned than legislators or administrators to witness how well existing common law is meeting the needs and expectations of those directly affected. While there are litigants who look to the courts for lawmaking, particularly when they have failed in the legislative process, most disagreements that find their way to court arise from gaps and vagueness in existing law leading to disappointed, but not unreasonable, expectations for one or both parties. In a legal system in which judges function as both common law judges and interpreters and enforcers of statutory and administrative law, it is important to recognize the essential difference between these functions. In both roles the judge must fill gaps and clarify uncertainties, but as interpreter and enforcer of statutory and administrative rules, the judge seeks to discern and advance the intentions of the legislative or administrative lawmaker. For the judge to fill gaps and clarify uncertainties in statutory or administrative law based on his or her “private sentiments”50 or policy preferences would be a clear usurpation of
49. BLACKSTONE, supra note 16, at 69. 50. Id. 2017] A Common Law of and for the Virgin Islands 377 the lawmaking function. Because common law rules arise spontaneously and evolve naturally, there is no “framer” intention that a judge can reference. In filling gaps and clarifying uncertainties in the common law, the judge should be guided by the expectations and objectives of consumers of the law. Although it is generally accepted that legislation can preempt common law rules, legislation, like the Restatements, does not evolve on its own. When understood and implemented as a demand-side process, the judge plays an essential role in adapting the law to evolving practices and preferences. It might be argued that adaptation of the law in response to observed demands is no less lawmaking than announcing new rules intended to alter the future course of social relations; but Ridley’s analysis suggests that the supply-side approach will often work against the natural forces of human progress, while the demand-side approach is simply a part of that evolutionary process.51 Whereas Ridley credits the fourth century BC Greek philosopher Epicurus and the first century BC Roman poet Lucretious (who revived Epicurus’s already lost ideas) with suggesting that order emerges without intelligent design,52 modern readers are more likely to associate the idea with Adam Smith and Charles Darwin. Darwin’s theory of evolution is generally accepted, though assumed by most to relate only to biology. Smith’s theory of the invisible hand is as likely to be ridiculed as respected in today’s partisan climate. But order does arise from market transactions, and order did arise from custom and the common law. None of it was planned. Disagreements with the idea of spontaneous order in matters of social relations stem not from an absence of order but from dislike of the order established—usually on wealth distribution grounds. Principled wealth redistribution is widely accepted as a function of modern governments, despite the inevitable, unprincipled rent-seeking that follows, but courts are the least competent branch of government for the design of wealth-related adjustments to the work of the invisible hand.
51. RIDLEY, supra note 35, at 11–16. 52. Id. at 8–12. 378 Stetson Law Review [Vol. 46
II. THE BANKS ANALYSIS
The Virgin Islands Supreme Court has extracted from Banks a three-factor analysis to be applied by Virgin Islands courts “when confronted with an issue of Virgin Islands common law that [the Supreme] Court has not resolved—or that has been addressed only through erroneous reliance on former 1 V.I.C. [Section] 4.”53 In Banks, the Court found it relevant that the challenged Restatement rule “‘has received widespread acceptance in Virgin Islands courts,’”54 that “a majority of jurisdictions endorse”55 the proposed alternative rule and, “even more importantly,” that in this case the alternative rule “represents the sounder rule.”56 The Banks analysis was summarized in Simon v. Joseph57 as invoking the following considerations: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.”58 Whether the Banks analysis will result in demand-side, homegrown, Virgin Islands common law is yet to be seen. Although the third factor invites courts to adopt rules that serve the needs of Virgin Islanders, it is not clear whether those needs are to be independently assessed by the courts or informed by the accumulation of cases that find their way to the courts. Are judges to supply rules that will promote policies they conclude are sound for the Virgin Islands? Or are judges to discover in the cases that come before them rules for which Virgin Islanders have evidenced a demand? The Banks opinion is ambivalent on this question. On the one hand, the Banks Court wrote that “[t]o determine whether to change the common law by judicial decision, a court should consider whether ‘changing circumstances compel [the]
53. Machado v. Yacht Haven U.S.V.I, LLC, 61 V.I. 373, 380 (V.I. 2014). 54. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981 (V.I. 2011) (quoting Banks v. Int’l Rental & Leasing Corp., Nos. 2002–200 through–203, 2008 WL 501171, at *3 n.5 (D.V.I. Feb. 13, 2008)). 55. Id. at 983. 56. Id. at 983–84. 57. 59 V.I. 611 (V.I. 2013). 58. Id. at 623. The court had earlier, and less succinctly, summarized the three factors in Matthew v. Herman, 56 V.I. 674, 680–81 (V.I. 2012). 2017] A Common Law of and for the Virgin Islands 379 court[ ] to “renovate” outdated law and policy’ by ‘creating new public policy.’”59 “In other words,” said the court, “‘[the Supreme] Court must weigh the benefits versus the burdens of the proposed change.’”60 This sounds like the supply-side judge making public policy alongside the legislature. The Court “acknowledge[d] that the Legislature possesses concurrent authority to alter the common law,” but rejected the notion that “the Legislature possesses the authority to . . . completely deprive[ ] this Court of the ability to exercise its supreme judicial power to shape the common law.”61 On the other hand, the Banks Court dismissed earlier contrary precedent as cases in which “the parties [did not] expressly request that [the Supreme] Court exercise its inherent power to adopt a different rule, and [the Supreme] Court is not inclined to do so sua sponte without receiving the benefit of briefing by the parties.”62 The Court went on to note that stare decisis is “‘not a mechanical formula of adherence . . . however . . . questionable, when such adherence involves collision with a . . . doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’”63 Here, the Court expressed an interest in the demand-side briefing by litigants and looked to rules “‘verified by experience.’”64 In actually applying the third factor of its analysis, the Court looked to the interests of commercial litigants in concluding that “holding lessors strictly liable represents the sounder rule, in ‘that a commercial lessor acts much like a retailer and manufacturer in placing products in the stream of commerce, and . . . a lessor will in most instances be in a better position than a consumer to prevent the circulation of defective products.’”65 That the Banks Court took a demand-side view of the common law process is further supported by the Court’s conclusion that “[the Supreme] Court and—to the extent not
59. Banks, 55 V.I. at 981 (quoting Wholey v. Sears Roebuck, 803 A.2d 482, 489 (Md. 2002)). 60. Id. (quoting Gilbert v. Barkes, 987 S.W.2d 772, 774 (Ky. 1999)). 61. Id. at 979–80. 62. Id. at 984 n.9. 63. Id. at 985 n.10 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)). 64. Id. (quoting Helvering, 309 U.S. at 119). 65. Id. at 983–84 (quoting, ironically, 52 A.L.R.3d 121, although the courts’ experience with Virgin Island commercial litigants might well have led them to the same conclusion) (footnote omitted). 380 Stetson Law Review [Vol. 46 bound by precedent, the [s]uperior [c]ourt—may determine the common law without automatically and mechanistically following the Restatements.”66 The superior courts are those closest to the day-to-day legal affairs of the Virgin Islands. Like trial courts of Blackstone’s England, they are in the best position to understand “local mores and needs” or, in Professor Adams’ words, to learn the “lessons of experience.”67 It is meant to be a bottom-up process, not judicial policymaking from on high. That it is to be a bottom-up process rising from the superior courts is made clear in Government of the Virgin Islands v. Connor,68 which was decided three years after Banks. The Connor Court declared it “is no accident” that the superior courts have authority and responsibility to weigh in on Virgin Islands common law.69 “[O]riginal jurisdiction to adjudicate particular legal issues in the first instance remains a function of the [s]uperior [c]ourt to be disturbed only in truly extraordinary situations.”70 The Court described the judicial system of the Virgin Islands as “‘arranged in a pyramid,’ with ‘trial courts at its base.’”71 “The reason for this [structure] is clear: ‘independent decisions of lower courts will improve the quality of appellate decisions.’”72 While the Banks opinion is clear on the relevance of the first two factors—Virgin Islands precedent and majority precedent from other jurisdictions—there seems to be some uncertainty about how those considerations should influence the third factor—determining the “soundest rule for the Virgin Islands.”73 Overturning Virgin Islands precedent “has a definite burden associated with it, since it would disrupt the state of the law in the Virgin Islands,”74 and therefore is “‘entitled to great respect.’”75 The fact that a majority of jurisdictions endorse a
66. Id. at 979 (internal citation omitted). 67. Adams, supra note 4, at 446. 68. 60 V.I. 597 (V.I. 2014). 69. Id. at 604. 70. Id. (internal citation omitted). 71. Id. (quoting Richard K. Greenstein, Why the Rule of Law?, 66 LA. L. REV. 63, 71 (2005)). 72. Id. (quoting Lewis A. Kornhauser, Adjudication by a Resource-Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1626 (1995)). 73. Id. at 605. 74. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981 (V.I. 2011). 75. Id. (quoting People v. Todmann, 53 V.I. 431, 438 n.6 (V.I. 2010)). 2017] A Common Law of and for the Virgin Islands 381 particular rule, though “not a dispositive factor,”76 is evidence, presumably, that the rule has been found to meet similar needs in those jurisdictions. What may be unclear, judging by applications of the Banks factors in later cases, is whether Virgin Islands precedent and the majority rule in other jurisdictions are meant to be illustrative of possible rules going forward or the only possible rules from which the common law judge must select. The latter would undercut the demand-side approach by limiting judges to already existing rules while also ignoring a concern for Virgin Islands sovereignty noted in the following paragraph. It should not be forgotten that the Banks decision was inspired by more than a desire to develop a common law suited to the conditions and needs of the Virgin Islands. It was also an expression of the sovereign autonomy of the people of the Virgin Islands. As Professor Adams has written, “The Virgin Islands, having had foreign law imposed on them for so many centuries, were naturally vulnerable to legal invasion. The wholesale adoption of the Restatements might fairly be described as an invasion.”77 In noting that mandated adherence to the Restatements would effectively “delegate[ ] [judicial] power to the American Law Institute and to the governments of other jurisdictions,”78 the Banks Court suggested that continued obeisance to the Restatements “may violate ‘the right to self- government guaranteed to the people of the Commonwealth.’”79
III. BANKS APPLIED
In applying the Banks analysis, there are three general approaches Virgin Islands courts might pursue. To determine “which approach represents the soundest rule for the Virgin Islands,”80 courts could assume they are to: (1) select either a particular rule previously adopted by Virgin Islands courts or the majority rule from other jurisdictions; (2) create new laws based on public policy considerations; or (3) adapt one or some combination of the aforementioned rules to the present-day circumstances and needs of the Virgin Islands.
76. Id. at 983. 77. Adams, supra note 4, at 456–57 (internal footnote omitted). 78. Banks, 55 V.I. at 980. 79. Id. (citation omitted). 80. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 (V.I. 2014). 382 Stetson Law Review [Vol. 46
The first approach recognizes the importance of stare decisis to people’s expectations, while avoiding description as a “legal invasion.”81 If courts may prefer rules previously adopted by Virgin Islands courts over the majority rule of other jurisdictions, “the right to self-government guaranteed to the people” remains intact.82 But being limited to existing rules, even if Virgin Islands courts had previously adopted these rules, is not consistent with the common law process as described above. The common law is not a set of rules awaiting discovery in the case reporters by Langdellian-trained judges the way unknown planets or species await discovery by scientists. Rather, they are rules to be discovered through the customs and practices of what we might call “legal consumers.” While there are good reasons relating to popular expectations to adhere to existing rules, there are sometimes good reasons to adjust existing rules to expectations people actually have or would rather have. The common law process allows for such adaptations. Although it is fair to conclude that the first two factors of the Banks analysis are intended to provide courts with a sampling of previous solutions to the problem at hand, while taking into account reliance litigants may have placed on existing rules, it appears that in a few post-Banks opinions, courts have proceeded as if confined to those existing rules.83 In Kiwi Construction, LLC v. Pono,84 the superior court concluded that “[g]iven the uniform treatment of this tort across jurisdictions, the soundest rule of law for the Virgin Islands is that a plaintiff must plead two elements to state a claim for abuse of process.”85 Uniform treatment across jurisdictions is not a persuasive reason for concluding that it is the soundest rule for the Virgin Islands, although it might be if it is shown that Virgin Islands citizens have been relying on that rule. In Merchants Commercial Bank v. Oceanside Village,86 the superior court found that “[t]he soundest rule of law for the Virgin Islands is [one] that . . . incorporates the requirements imposed by nearly every jurisdiction in the United
81. Adams, supra note 4, at 456. 82. Banks, 55 V.I. at 980 (internal quotation marks omitted). 83. See, e.g., Kiwi Constr., LLC v. Pono, No. ST-2013-CV-011, 2016 WL 213037, at *3 (V.I. Super. Ct. Jan. 15, 2016) (relying solely on uniformity across jurisdictions for finding the “soundest rule”). 84. Id. 85. Id. 86. No. ST-2011-CV-653, 2015 WL 9855658 (V.I. Super. Ct. Dec. 18, 2015). 2017] A Common Law of and for the Virgin Islands 383
States . . . [and] mirrors the language of the rule previously relied upon by courts in the Virgin Islands.”87 Although the court noted that the rule “fosters consistency concerning the scope of . . . liability,” it offered no further explanation for why the rule is the soundest for the Virgin Islands other than its existence in the Virgin Islands and other jurisdictions.88 In Jacobs v. Roberts,89 the superior court adopted a Restatement (Third) rule as “the soundest rule for the Virgin Islands,” noting only that it is “the current majority rule.”90 In all three of these cases, the court purported to be applying the third factor of the Banks analysis, but only referenced what had been learned by applying the first two factors—as if it were limited to selecting from these preexisting rules. A careless reading of the Virgin Islands Supreme Court’s opinion in Connor could lead superior courts to conclude that in establishing the soundest rule for the Virgin Islands, they are limited to rules revealed in applying the first two elements of the Banks analysis. After stating that Banks requires courts to “ascertain[ ] whether any Virgin Islands courts have previously adopted a particular rule . . . [and] then identify[ ] the position taken by a majority of courts from other jurisdictions,” the Connor opinion stated that courts must then “determine[ ] which approach represents the soundest rule for the Virgin Islands.”91 While this language might be understood to mean that the soundest rule is to be drawn either from existing Virgin Islands rules or from the majority rule in other jurisdictions, it is clear from other statements in Connor that the Supreme Court intended no such limitation. The Court stated that “[t]he power to shape the common law is amongst the most important powers vested in a judicial officer”92 and that “identifying the best rule for the Virgin Islands—mandates that the [s]uperior [c]ourt . . . determine the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands.”93
87. Id. at *11. 88. Id. 89. No. ST-14-CV-193, 2015 WL 3406561 (V.I. Super. Ct. May 21, 2015). 90. Id. at *4. 91. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 (V.I. 2014). 92. Id. at 604. 93. Id. at 603. 384 Stetson Law Review [Vol. 46
Some language in the Banks opinion might be read to call on Virgin Islands courts to create new law pursuant to declared policy goals, much as a legislature would. “To determine whether to change the common law by judicial decision,” wrote the Banks court, “a court should consider whether ‘changing circumstances compel [the] court[ ] to “renovate” outdated law and policy’ by ‘creating new public policy.’”94 “In other words,” the Court continued, “‘[the Supreme] Court must weigh the benefits versus the burdens of the proposed change.’”95 This would be the ‘supply- side’ approach, but the remainder of the Banks opinion, particularly its focus on existing Virgin Islands judicial rulings, appears to call for a more restrained, demand-side approach. Notably, there are really no post-Banks superior court or V.I. Supreme Court decisions that employ this supply-side approach in their Banks analysis. With the exception of the few cases noted above in which the courts have limited themselves to preexisting rules and a few other cases in which courts have simply asserted that a particular rule is the soundest for the Virgin Islands,96 Virgin Islands courts have applied the Banks analysis as a common law court should. Pursuant to the first two factors they have considered to what extent litigants have reasonably relied on existing rules, while examining how those rules have functioned in circumstances that may or may not be similar to those in the Virgin Islands.97 Taking those considerations into account, they have then looked to local circumstances and needs in adopting
94. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981 (V.I. 2011) (quoting Wholey v. Sears Roebuck, 803 A.2d 482, 489 (Md. 2002) (citation omitted)). 95. Id. (quoting Gilbert v. Barkes, 987 S.W.2d 772, 774 (Ky. 1999)). 96. See, e.g., Ronan v. Clarke, 63 V.I. 95, 102 (V.I. Super. Ct. 2015) (declaring the best rule for the Virgin Islands after concluding that the question is “best left for the Legislature”); Nicholas v. Damian-Rojas, 62 V.I. 123, 130 (V.I. Super. Ct. 2015) (“The Court finds that the substantive provisions of Restatement [Section] 219 represent the soundest rule for the Virgin Islands, reflecting commonly understood legal principles that do not contradict Virgin Islands common law.”); Faulknor v. Virgin Islands, 60 V.I. 65, 89 (V.I. Super. Ct. 2014) (“Finally, considering the longstanding application of the Restatement (Second) of Torts [Section] 390 in this jurisdiction and the apparent widespread application of this rule in a majority of jurisdictions, the Court finds that the Restatement (Second) of Torts [Section] 390 represents the soundest rule for the Virgin Islands and is in accord with local public policy.”). 97. See, e.g., Connor, 60 V.I. at 604–06 (explaining the court’s approach to the first two factors of the Banks test). 2017] A Common Law of and for the Virgin Islands 385 what they believe to be the soundest rule of the Virgin Islands.98 Although courts have adopted, more often than not, rules revealed by the first two factors of the Banks analysis, they seem to take a serious assessment of local circumstances and needs. Several superior court cases are illustrative. In Hodge v. Virgin Islands Telephone Corp.,99 the court sought “to protect individuals who are lawfully in a ‘public place,’ . . . in accord[ance] with the local public policy to protect members of the public from harm” and rejected the defendant’s claim that the adopted rule “would result in ‘chaos and inefficiency in Virgin Island business dealings.’”100 In Sickler v. Mandahl Bay Holding Inc.,101 the court rejected a proposed rule of criminal liability that “is inconsistent with fundamental principles of both [Virgin Islands] tort and real property law.”102 In Simkins v. Virgin Islands,103 the court concluded that “shifting the burden of maintaining public properties to possessors of adjacent land may have far-reaching and unintended [negative] consequences” and therefore is not the soundest rule for the Virgin Islands.104 In Robbins v. Port of $ale, Inc.,105 the court opted for a statute of limitations rule that would not “‘foreclose a tortfeasor’s right to contribution.’”106 In Davis v. Hovensa, LLC,107 the court concluded that the soundest rule for the Virgin Islands is that which is “more consistent with Virgin Islands jurisprudence and policy.”108 In Slack v. Slack,109 the court found that a rule relating to the “enforceability of [ ] antenuptial agreement[s] is the soundest rule for the Virgin Islands because the criteria balances the parties’ freedom to contract, yet allows the courts to refuse enforcement of the agreement if equity requires.”110 In Gourmet Gallery Crown
98. Id. at 603 (describing the soundest rule as one “based on the unique characteristics and needs of the Virgin Islands”). 99. 60 V.I. 105 (V.I. Super. Ct. 2014). 100. Id. at 116. 101. No. ST-10-CV-331, 2014 WL 3107449 (V.I. Super. Ct. July 7, 2014). 102. Id. at *6. 103. 62 V.I. 76 (V.I. Super. Ct. 2014). 104. Id. at 82–83. 105. 62 V.I. 151 (V.I. Super. Ct. 2015). 106. Id. at 157 (quoting Maurice T. Brunner, Annotation, When Statute of Limitations Commences to Run Against Claim for Contribution or Indemnity Based on Tort, 57 A.L.R.3d 867, § 3(a) (2015)). 107. 63 V.I. 475 (V.I. Super. Ct. 2015). 108. Id. at 486. 109. 62 V.I. 366 (V.I. Super. Ct. 2015). 110. Id. at 377. 386 Stetson Law Review [Vol. 46
Bay, Inc. v. Crown Bay Marina, L.P.,111 the court held that “the soundest rule of law for the Virgin Islands is that a commercial tenant may escrow its rent . . . [under particular circumstances] because . . . [that rule] acknowledges that the law of contracts governs the relation of covenants in a commercial lease agreement.”112 In all of these cases the courts have concluded that a particular rule is soundest because of considerations important to the Virgin Islands. Two superior court opinions warrant particular note as examples of the common law process envisioned in the Banks analysis. In Lembach v. Antilles School, Inc.,113 the court explained its ruling on the admissibility of what would otherwise be hearsay evidence as follows:
Because the Virgin Islands is such a small territory, by necessity its residents often, as here, have to travel to Puerto Rico, Miami or beyond for specific and expert medical care. It is already disruptive of a doctor’s or other specialist’s business to attend a hearing or trial, a burden that is only compounded by requiring the expert to travel sometimes thousands of miles. It is not unheard of for parties to forego expert testimony when faced with the costs and time constraints of bringing experts before the Court.114
In arriving at the soundest rule for the Virgin Islands, the court in Bell v. Radcliffe115 stated that “[a]dopting a broad definition of trespass . . . will allow Virgin Islands courts to develop their own body of law relating to trespass while permitting reference to the Restatement when confronted with close cases, unusual facts, or new questions.”116 Together, these two trial court decisions articulate the importance of common law rules that suit current and future local circumstances and needs. In several cases the Virgin Islands Supreme Court has made clear that its Banks analysis is meant to facilitate a demand-side common law process, not judicial policy and lawmaking. In
111. No. ST-2014-CV-513, 2015 WL 9874077 (V.I. Super. Ct. Nov. 10, 2015). 112. Id. at *3. 113. No. ST-12-CV-613, 2015 WL 2120508 (V.I. Super. Ct. Apr. 1, 2015). 114. Id. at *22. 115. No. ST-13-CV-392, 2015 WL 5773561 (V.I. Super. Ct. Apr. 30, 2015). 116. Id. at *7. 2017] A Common Law of and for the Virgin Islands 387
Matthew v. Herman117 the court elaborated on its Banks opinion. With reference to the first Banks factor, the court “noted that when a doctrine gains ‘widespread acceptance’ [ ] there are ‘definite burden[s] associated’ with rejecting it, as to do so would ‘disrupt the state of the law in the Virgin Islands.’”118 Of course if there is not “widespread acceptance,”119 there is likely demand for a different rule. With respect to the second Banks factor, the Matthew court “cautioned that the majority rule factor, while important, was not dispositive.”120 Finally, in identifying the soundest rule for the Virgin Islands, the court, after mentioning several general policy considerations, stated that “the amatory torts are based on antiquated notions of a wife as the husband’s property and are otherwise in tension with the public policy of the Virgin Islands because they have a destructive effect on existing marriages.”121 The court did not purport to change Virgin Islands public policy, but rather to reinforce it. The Virgin Islands Supreme Court’s ruling in Simon might be read to suggest that the application of the Banks analysis requires courts to select from existing rules, but it makes clear that in favoring the majority rule it recognizes “that the Virgin Islands is unique among United States jurisdictions due to the small size of the Virgin Islands Bar and the large need to appoint counsel in criminal cases.”122 As the court had noted in Matthew, the majority position is not dispositive, but in this case, it is the better rule for the Virgin Islands. In Garcia v. Garcia,123 the V.I Supreme Court elaborated on the tradeoff between respecting existing Virgin Islands law and establishing a new rule which experience indicates is better suited to present day circumstances.124 “‘[S]tare decisis is a principle of policy and not a mechanical formula of adherence . . . however . . . questionable, when such adherence involves collision with a . . . doctrine more embracing in its scope, intrinsically sounder, and verified by
117. 56 V.I. 674 (V.I. 2012). 118. Id. at 680 (quoting Banks v. Int’l Rental & Leasing Corp., 55 V.I. 976, 983 (V.I. 2011)). 119. Id. (quotation omitted). 120. Id. 121. Id. at 685. 122. 59 V.I. 611, 627 (V.I. 2013). 123. 59 V.I. 758 (V.I. 2013). 124. Id. at 776. 388 Stetson Law Review [Vol. 46 experience.’”125 Though not specific to the particular circumstances of the Virgin Islands, the V.I. Supreme Court’s opinion in Walters v. Walters126 gave serious consideration to the core objectives of tort law and “conclude[d] that an unjust enrichment cause of action must have a concrete set of elements in order to further the deterrence purpose of tort law.”127 The court made similar reference to “the basic purpose for which trust law was created,” ruling that “the separation of legal and equitable title in a trust property . . . ‘allow[s] for more flexible management of property with split ownership.’”128 In two other cases, Virgin Islands courts have confirmed that the third factor of its Banks analysis is meant to inform legal change in response to local circumstances and demonstrated needs, and not to invite judicial policymaking. In Malloy v. Reyes,129 the court made reference to a century of “significant changes in the administration of the Territory . . . providing countless opportunities for the loss of records and the neglect of certain governmental functions”130 in its determination of the soundest rule for the Virgin Islands. In Joseph v. Sugar Bay & Resort, Corp.,131 the superior court concluded that a Restatement rule, though not binding on the courts in light of Banks, “represents the soundest rule for the Virgin Islands, and is in accord with local public policy.”132 Rather than simply observing that the adopted rule is in accord with local public policy, it would have been more consistent with the spirit of Banks if it had stated that it is the soundest rule because it is in accord with local public policy.
IV. CONCLUSION
Although it would be premature to commend the Virgin Islands courts for embracing a restrained, supply-side approach
125. Id. (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)). 126. 60 V.I. 768 (V.I. 2014). 127. Id. at 779. 128. King v. Appleton, 61 V.I. 339, 352 (V.I. 2014) (quoting Robert L. Glicksman, Sustainable Federal Land Management: Protecting Ecological Integrity and Preserving Environmental Principle, 44 TULSA L. REV. 147, 180 (2008)). 129. 61 V.I. 163 (V.I. 2014). 130. Id. at 179. 131. No. ST–13–CV–491, 2014 WL 1133416 (V.I. Super. Ct. Mar. 17, 2015). 132. Id. at *3. 2017] A Common Law of and for the Virgin Islands 389 to implementing the Banks mandate, early indications are encouraging. While all judges face the temptations to the power inherent in their role as arbiters of private and public disputes, there is little indication in the post-Banks decisions to date that Virgin Islands judges are anxious to assume the role of policymaker and legislator. There appears to be an understanding that Banks calls for the organic development of a Virgin Islands common law, not for the replacement of the Restatements with a regime of judge formulated policies and laws. For Virgin Islands judges to succeed in developing a common law of and for the Virgin Islands, they must accept that it will be a gradual, organic process with no end in sight. Sometimes prior decisions of Virgin Islands courts or the decisions of courts in other jurisdictions will suggest what could be the soundest rule for the Virgin Islands, but it will be the soundest rule only if it reflects “contemporary local mores and needs” and “incorporate[s] the lessons of [Virgin Islands] experience.”133 Superior court judges, in particular, are well positioned to witness the ambitions, frustrations, conflicts and collaborations of day-to-day life in the Virgin Islands. A Virgin Islands common law arising from these considerations will better serve the people of the Virgin Islands than could anything promulgated by the American Law Institute. The key to effective implementation of the Banks analysis, as a few courts have already demonstrated, will be considering and explaining why, in light of the expressed preferences of Virgin Islanders, a particular rule is the soundest for the Virgin Islands. If it can be said that a rule is soundest because it meets the needs of those who rely on the law in the regulation of their personal, public, and business affairs, the promise of Banks will be realized and the people of the Virgin Islands will come to have a common law of their own.
133. See Adams, supra note 4, at 446 (identifying certain attributes of the process by which a given jurisdiction establishes its common law).
LIVING WITH BANKS: TRENDS AND LESSONS FROM THE FIRST FIVE YEARS
Kristen David Adams*
The landmark Virgin Islands Supreme Court case of Banks v. International Rental & Leasing Corp.1 was decided on December 15, 2011. The Banks decision was significant for the way it changed how courts applying Virgin Islands law approached matters of first impression. Prior to Banks, the approach was to apply Virgin Islands Code (“V.I. Code”), Title 1, section 4, which provided as follows:
Application of common law; restatements The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.2
* © 2017, Kristen David Adams. All rights reserved. Professor of Law, Stetson University College of Law. LL.M., Yale Law School; J.D., with Honors, Emory Law School; B.A., with Honors, Phi Beta Kappa, Rice University. I would like to particularly thank Dean Christopher Pietruszkiewicz, Professor Jason Bent, Editors in Chief Allison Stevenson and Evan Dix, Symposium Editor Adriana Foreman, Marketing Editor Nicole Zaworska, Articles & Symposia Editor Jeffrey Keller, and the Stetson Law Review for supporting the symposium that gave rise to this Article; the Virgin Islands Bar Association, and especially Russell Pate and Anthony Ciolli, for the collaboration that made this symposium possible; and Lara McGuire for her truly outstanding work as my research assistant. 1. 55 V.I. 967 (V.I. 2011). 2. 1 V.I. CODE ANN. § 4 (repealed 2004). See Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 HOFSTRA L. REV. 423 (2004) (examining this statute and its implications). Also note that the Northern Mariana Islands Code includes a similar provision: In all proceedings, the rules of the common law, as expressed in the restatements of the law approved by the American Law Institute and, to the extent not so expressed as generally understood and applied in the United States, shall be the rules of decision in the courts of the Commonwealth, in the absence of written law or local customary law to the contrary; provided, that no 392 Stetson Law Review [Vol. 46
Thus, prior to Banks, the American Law Institute’s (ALI) Restatements of the Law (“Restatements”) had a special status in the Virgin Islands, as a matter of statute, beyond the persuasive authority they supply in other United States jurisdictions. Banks made it clear that V.I. Code, Title 1, section 4 had been implicitly repealed by the establishment of the Virgin Islands Supreme Court in 2007 and prescribed a new approach to matters of first impression, which is described below. This approach has become commonly known as a “Banks analysis.” At least 120 cases have now cited the Banks decision and, now that a substantial body of decisions referencing Banks has developed, it is possible to examine the body of Banks caselaw as a whole, so as to identify some trends and best practices. Many of these cases cited Banks specifically for the Banks analysis and application of the three-factor Banks test described below, but perhaps a surprising number cited Banks for other reasons, such as its discussion of the Virgin Islands court system. This Article is primarily concerned with the cases that address the Banks analysis.
I. THE BANKS ANALYSIS
When Virgin Islands courts are asked to decide an issue that is not foreclosed by prior precedent, they conduct a Banks analysis. For this purpose, precedent does not include persuasive authority, which is why the word “foreclosed” was used in Banks. Thus, application of Banks necessarily raises the question of what constitutes binding authority.3 A Banks analysis consists of three factors: (1) Whether any local courts have considered the issue and rendered any decisions upon which litigants may have grown to rely;
person shall be subject to criminal prosecution except under the written law of the Commonwealth.
7 N. MAR. I. CODE § 3401 (1997). 3. See Katy Womble & Courtney Cox Hatcher, Trouble in Paradise? Examining the Jurisdictional and Precedential Relationships Affecting the Virgin Islands Judiciary, 46 STETSON L. REV. 441 (2017) (stating that courts were able to rely on the Restatements of Law as binding authority prior to Banks). 2017] Living with Banks 393
(2) The position taken by a majority of courts from other jurisdictions; and (3) The best rule for the Virgin Islands, which is the most important factor. The first factor serves as a reminder that Banks was not decided in a vacuum, but instead within the context of a significant body of Virgin Islands caselaw. With respect to the second factor, although the Banks analysis calls for a consideration of what other courts have done, Virgin Islands courts can and do sometimes adopt a minority position.4 In considering the third element, the best rule for the Virgin Islands, there are several different approaches the courts have taken, which are considered later in this Article.5 Whenever the Banks decision is referenced, the 2014 Virgin Islands Supreme Court decision in Government of the Virgin Islands v. Connor6 is likely to be part of the discussion, as well. Connor presents the clearest articulation of what each prong of the Banks analysis actually requires.7 The key language from the Connor opinion is as follows:
(1) The first step in the analysis — whether any Virgin Islands courts have previously adopted a particular rule — requires the Superior Court to ascertain whether any other local courts have considered the issue and rendered any reasoned decisions upon which litigants may have grown to rely.8
(2) The second step — determining the position taken by a majority of courts from other jurisdictions — directs the Superior Court to consider all potential sides of an issue by
4. See, e.g., Antilles Sch., Inc. v. Lembach, No. 2015-0039, 2016 WL 948969 (V.I. Mar. 14, 2016) (providing a recent example of this phenomenon). 5. See infra notes 229–49 and accompanying text (discussing courts’ differing approaches to Banks analyses). 6. 60 V.I. 597 (V.I. 2014). 7. The Superior Court opinion in Der Weer v. Hess Oil Virgin Islands Corp., SX-05- CV-274, 2016 WL 1019689, at *21 n.9 (V.I. Super. Ct. Mar. 15, 2016), describes Connor as having “effectively transformed the common law of the Virgin Islands” with respect to how the Restatements are to be used. 8. Connor, 60 V.I. at 603. See, e.g., Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981 (V.I. 2011) (discussing when it is appropriate to change the common law by judicial decision, and whether changing circumstances compel a court to renovate outdated law and policy by creating new public policy). 394 Stetson Law Review [Vol. 46
viewing the potentially different ways that other states and territories have resolved a particular question.9
(3) [T]he third step in the Banks analysis — identifying the best rule for the Virgin Islands — mandates that the Superior Court weigh all persuasive authority both within and outside the Virgin Islands, and determine the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands.10
Connor’s explication of the second element is particularly important given the changing role of the Restatements over time, as well as the changing role of the Restatements in the Virgin Islands. Courts and litigants may historically have relied on the Restatements as serving the same role as this second element— that is, as presenting an overview of the majority approach to each covered issue. This is because the Restatements historically had the reputation of describing what the law is rather than what scholars and commentators believe the law should be. Over time, however, the Restatements have without question become more normative.11 Thus, the Restatements cannot be used as a substitute for the second factor of the Banks analysis.
II. THE CONTINUING INFLUENCE OF THE RESTATEMENTS
Having a substantial body of caselaw makes it possible to identify some trends in how the Banks decision has been interpreted and applied. First, turning to the treatment of the Restatements—now that Banks and its progeny have inaugurated a new approach to Virgin Islands jurisprudence, how have the Restatements been treated by courts applying Virgin Islands law? The short answer is that the Restatements are still influential, and Restatement rules have not often been clearly rejected by a court applying Virgin Islands law.
9. Connor, 60 V.I. at 603. See, e.g., Simon v. Joseph, 59 V.I. 611 (V.I. 2013) (discussing Virgin Islands precedent and how other jurisdictions approach the issue of legal malpractice against criminal defense attorneys). 10. Connor, 60 V.I. at 603. 11. See Adams, supra note 2, at 437 (demonstrating through courts’ decisions and the work of other scholars that the Restatements have changed from their original purpose of restating the law as generally applied to remaking the law in a more ideal form). 2017] Living with Banks 395
A. Statistics on Usage
Of 120 cases closely reviewed, there are six in which a Restatement rule was considered, but rejected.12 One of these cases was in the superior court; five were in the Supreme Court. In these cases, no particular Restatement was singled out for rejection. Instead, one case involved the Restatement (Third) of Property: Servitudes, three involved the Restatement (Second) of Torts, and two involved the Restatement (Third) of Restitution and Unjust Enrichment. The Court’s language in Walters v. Walters,13 one of the cases in which a Restatement rule was rejected, is instructive. In that case, the Court rejected what it described as a minority viewpoint found in section 1 of the Restatement (Third) of Restitution and Unjust Enrichment with respect to the elements of an unjust enrichment cause of action. The court explained its holding as follows:
Although the authors of the Third Restatement maintain that setting forth specific elements for an unjust enrichment cause of action is “not helpful” and “can lead to serious errors” because “[t]hey lend a specious precision to an analysis that may be simple or complicated but which at any rate is not susceptible of this form of statement,” this section discounts the costs associated with an ad hoc case-by-case approach and the benefits of uniform and predictable outcomes.14
Despite the existence of cases like Walters in which a Restatement rule has been rejected, generally the Restatements are still quite influential in the Virgin Islands. Setting aside those cases in which a Restatement rule was partially adopted or perhaps adopted, in fifty-three cases, a Restatement rule was clearly accepted.15 Seven of these decisions were by the District Court of the Virgin Islands; thirty-seven were by the Superior Court of the Virgin Islands; and nine by the Virgin Islands Supreme Court.
12. The cases and the corresponding Restatements referenced in this Part may be found in Appendix A. 13. 60 V.I. 768 (V.I. 2014). 14. Id. at 778 (internal citation omitted). 15. The cases and the corresponding Restatements referenced in this Part may be found in Appendix B. 396 Stetson Law Review [Vol. 46
B. Identifying the Restatements that Remain Most Influential
With respect to the specific Restatements that are being followed, some trends have begun to emerge. One case each followed the Restatement (First) of Property, the Restatement (First) of Restitution, the Restatement (Third) of Suretyship and Guaranty, the Restatement (Third) of Unfair Competition, the Restatement (Third) of Agency, and the Restatement (Second) of Conflict of Laws. Two cases followed the Restatement (Third) of the Law Governing Lawyers. Six cases followed the Restatement (Second) or Restatement (Third) of Agency. Thirteen cases applied provisions of the Restatement (Second) of Contracts, and twenty-seven followed the Restatement (Second) or Restatement (Third) of Torts. These numbers are not surprising, but instead seem to reflect the general level of influence that each of these Restatements has had in U.S. jurisprudence. Thus, the trend in the post-Banks era seems to be that those Restatements of the Law that have generally been most influential in the United States are most influential in the Virgin Islands, as well. This trend seems especially apparent with respect to the Restatements of Torts and Contracts, which together account for such a significant number of the cases following a Restatement rule. The approximately seventy other Banks cases not accounted for in this tabulation were not included for one of several reasons: the Restatement was not considered, there was no express decision regarding whether to adopt a Restatement rule, or Banks was cited for a proposition of law other than the Banks analysis.
C. The Evolving Jurisprudence on the Role of the Restatements
There is continuing conversation about the role of the Restatements in the Virgin Islands. The superior court has emphasized, citing the Supreme Court, that “when a Restatement gains ‘widespread acceptance’ in the Virgin Islands, it is ‘entitled to great respect’ and ‘there are definite burden[s] associated with 2017] Living with Banks 397 rejecting it, as to do so would disrupt the state of the law in the Virgin Islands.’”16 Building on the prior point, because Banks represented such an important change in the jurisprudence of the Virgin Islands, its implications did not become immediately apparent in a comprehensive way. Because the full meaning and significance of the Banks decision took time to unfold, it is important to put some of the opinions applying Banks into this larger context to determine which decisions are consistent with the instructions the Supreme Court has provided as to how Banks is to be applied. For example, two cases could be read to suggest that the Restatements will still be applied automatically and that new Restatements will be adopted as a matter of course as soon as they are released by the ALI. This, of course, is how the Restatements were applied in the Virgin Islands in the pre-Banks era. In the first of the two cases, Davis v. Hovensa, LLC,17 the superior court held as follows: “[Adopting a portion of the Restatement (Third) of Torts] is consistent with the trend of the Virgin Islands courts’ routine transition to newer [R]estatements upon approval, or even before final approval, by the American Law Institute.”18 Similarly, in Thomas v. Roberson,19 the district court acknowledged the Virgin Islands Supreme Court’s view that “a strong preference exists for following the most recent Restatement over an older version” and thus held that the Court would use the language of the Third Restatement.20 Without further context, one might read this language and be uncertain as to the current role of the Restatements in the Virgin Islands. Read within the full body of Banks jurisprudence, however, it is clear that the Virgin Islands courts should not follow the Restatements in the same way as they did in the pre-Banks era.
16. Bell v. Radcliffe, ST-13-CV-392, 2015 WL 5773561, at *7 (V.I. Super. Ct. Apr. 30, 2015) (citing Matthew v. Herman, 56 V.I. 674, 680 (V.I. 2012)). The Matthew court cited the pre-Banks Supreme Court opinion in People v. Todmann, which was decided in 2010. 53 V.I. 431, 438 n.6 (V.I. 2010). The “significant burden” language comes from the Banks opinion itself, as the court acknowledged the burden associated with rejecting a Restatement rule that had been previously applied. Matthew, 56 V.I. at 680. 17. 63 V.I. 475 (V.I. Super. Ct. 2015). 18. Id. at 489 (holding that “[t]his new standard provides a clearer test for design defect claims than the standard previously relied upon by the courts in this jurisdiction”). 19. 58 V.I. 662 (D.V.I. 2013). 20. Id. at 675 n.12 (quoting Banks v. Int’l Rental & Leasing Corp., 680 F.3d 296, 299 (3d Cir. 2012) (internal citation omitted)). 398 Stetson Law Review [Vol. 46
There are also two cases that could be read as indicating that Restatements will be applied automatically unless the Supreme Court has expressly held otherwise. Again, these opinions should be viewed as examples of Banks jurisprudence in transition. In Virgin Islands Taxi Ass’n v. Virgin Islands Port Authority,21 for example, the court held as follows: “Pursuant to Virgin Islands Code [T]itle 1, section 4, the Restatements of the Law are the law of the Virgin Islands in the absence of local laws to the contrary.”22 Similar language appears in the district court case of Smith v. Katz,23 which was a torts case involving an alleged negligent failure to protect from a harmful condition: “The Virgin Islands Supreme Court has interpreted [1 V.I. Code section 4] to require[ ] Virgin Islands courts to apply the most recently adopted version of the Restatement at the time of consideration, unless and until the Supreme Court decides to depart from that portion of the relevant Restatement.”24 This quotation cites Banks for the proposition that, in the ordinary course of deciding cases, Virgin Islands courts must “mechanically apply the most recent Restatement.”25 The Smith case could be read as indicating that lower courts applying Virgin Islands law can continue to apply Restatements that have been previously cited, so long as the Supreme Court has not acted affirmatively in departing from the rule articulated in that Restatement. The Supreme Court, however, has clarified that courts applying Virgin Islands law are to undertake a Banks analysis affirmatively whenever the relevant Supreme Court precedent relies mechanistically on the Restatement.26 Notably, both Virgin Islands Taxi Ass’n and Smith were rather early post-Banks decisions, and it seems fair to suppose that the courts were, at that time, still in the process of figuring out the implications of the Banks case. A more recent district court opinion also includes similar language. In Board of Directors of Sapphire Bay Condominiums
21. 59 V.I. 148 (V.I. Super. Ct. 2013). 22. Id. at 158. 23. CV 2010-39, 2013 WL 1182074 (D.V.I. Mar. 22, 2013). 24. Id. at *8 n.2. 25. Banks v. Int’l Rental and Leasing Corp., 55 V.I. 967, 976 (V.I. 2011). 26. See Antilles Sch., Inc. v. Lembach, 64 V.I. 400, 428–29 (V.I. 2016) (stating that any Virgin Islands court addressing an issue of first impression shall follow the three factor test the Supreme Court established in Banks). 2017] Living with Banks 399
West v. Simpson,27 a case involving common law claims for unfair competition, trademark infringement, anti-dilution, tortious interference, and misappropriation, the district court adopted provisions of the Restatement (Third) of Unfair Competition. In so holding, the court reasoned as follows:
[T]his Court will employ the language of the most recent Restatements, because the Virgin Islands Supreme Court has noted “that a strong preference exists for following the most recent Restatement over an older version” and this Court is unaware of any statutes or Virgin Islands Supreme Court precedent requiring it to deviate from the most recent Restatements.28
The jurisprudence that has developed since these three cases has made it clear that, rather than following the Restatements unless the Supreme Court has held otherwise, courts have an affirmative obligation to conduct a Banks analysis if no binding precedent exists on a given point. Even some post-Banks Supreme Court opinions from 2012 suggest that the full implications of Banks were still in the process of being determined. In Burd v. Antilles Yachting Services, Inc.,29 the Supreme Court cited the Banks case for the proposition that “[u]nder Virgin Islands law, by operation of 1 V.I.C. [section] 4, the Restatement provisions just quoted, in addition to others that may be applicable under the facts presented, serve as the rules of decision on this issue.”30 This case involved duress by threat of criminal prosecution and the court followed the Restatement (Second) of Contracts without conducting a Banks analysis.31 Similarly, in Maso v. Morales,32 the Supreme Court held as follows: “In the absence of a local law on the subject, or binding case law, [s]ection 4 of Title 1 provides that the Restatements of Law shall be the rules of decision applied by the courts.”33 In the very next sentence, however, the
27. CV 04-62, 2014 WL 4067175 (D.V.I. Aug. 13, 2014) aff’d sub nom. Bd. of Dirs. of Sapphire Bay Condos. W. v. Simpson, Nos. 14–3922, 14–3999, 2015 WL 9267712 (3d Cir. Dec. 21, 2015). 28. Id. at *10 (quoting Banks, 55 V.I. at 982). 29. 57 V.I. 354 (V.I. 2012). 30. Id. at 359 n.1. 31. Id. at 359. 32. 57 V.I. 627 (V.I. 2012). 33. Id. at 633 n.8. 400 Stetson Law Review [Vol. 46
Court cited the Banks case and V.I. Code, Title 1, section 4 for the proposition that the Court may create common law rules, and, therefore, is not bound by the Restatements.34 Thus, it is important not to take the quoted language out of context. The Maso case involved the issue of availability of damages representing the repair costs for a car that no longer existed and, as with the Burd case, the Court applied the Restatement (Second) of Torts without conducting a Banks analysis.35 The discussion that follows is focused on the proper role of the Restatements, and the level of influence they have, in the post- Banks era.
III. CLARIFYING THE ROLE OF THE RESTATEMENTS
A. Rejecting the Former Dominance of the Restatements
The fact that many opinions, as discussed above, continue to apply the Restatements may reinforce the false impression that the Restatements remain categorically dominant. The Supreme Court of the Virgin Islands’ decision in King v. Appleton36 serves to dispel any notion that the courts will or should continue to apply the Restatements mechanistically, as they did in the pre- Banks era. The King court emphasized that, although it ultimately adopted a rule similar to the Restatement rule on point, it did so as a result of the Banks analysis:
[A]lthough the elements of an express trust we ultimately adopt here are similar to those outlined in the Restatements, this does not mitigate the necessity of conducting a Banks analysis in order to avoid “mechanistic and uncritical reliance on the Restatements,” which “has the effect of inappropriately delegating the judicial power of the Virgin Islands to the American Law Institute and to the governments of other jurisdictions.”37
Similarly, the Supreme Court’s decision in Cacciamani & Rover Corp. v. Banco Popular de Puerto Rico38 provides a
34. Id. 35. Id. at 635–36. 36. 61 V.I. 339 (V.I. 2014) (addressing the issue of an express trust at common law). 37. Id. at 349–50 (citing Gov’t of the V.I. v. Connor, 60 V.I. 597, 602 (V.I. 2014)). 38. 61 V.I. 247 (V.I. 2014). 2017] Living with Banks 401 reminder that V.I. Code, Title 1, section 4 has been repealed such that the Restatements are no longer to be applied via that provision:
Although the Superior Court and the parties appear to be under the impression that some version of the Restatement of Restitution applies to this matter through former 1 V.I.C. [section] 4 (repealed 2004), this Court recently defined the elements of a common law claim for unjust enrichment in the Virgin Islands after conducting the appropriate analysis under Banks v. Int’l Rental & Leasing Corp.39
B. The Continued Persuasive Role of the Restatements
Even so, the Ross v. Hodge40 and Chapman v. Cornwall41 opinions make it clear that the Restatements maintain persuasive influence in the same way that they do in any other jurisdiction. The Ross court cited Banks for the proposition that, “although 1 V.I.C. [section] 4 does not incorporate all of the Restatement provisions as if they were actual statutory text, those provisions are nevertheless persuasive authority.”42 The Chapman case, likewise, demonstrates that courts may still use the Restatements in appropriate cases, and explains how: “Restatements of the Law may apply to the Virgin Islands through 1 V.I.C. [section] 4, subject to the authority of this Court and the Superior Court to shape the common law of the Territory.”43 Both of these statements are consistent with the stated purpose of the Restatements as set forth on the American Law Institute’s webpage: “The Institute’s founding Committee recommended that the first undertaking should address uncertainty in the law through a restatement of basic legal subjects that would tell judges and lawyers what the law was.”44 As the Virgin Islands Supreme Court held in Simon v. Joseph,45
39. Id. at 251 n.2 (citing Walters v. Walters, 60 V.I. 768 (V.I. 2014)). 40. 58 V.I. 292 (V.I. 2013). 41. 58 V.I. 431 (V.I. 2013). 42. Ross, 58 V.I. at 304 (internal citation omitted). 43. Chapman, 58 V.I. at 441 n.14. Similar language exists in the case of Pollara v. Chateau St. Croix, LLC, 58 V.I. 455, 471 n.10 (V.I. 2013). 44. The American Law Institute, Institute Projects, ALI.ORG, https://www.ali.org/ about-ali/institute-projects/ (last visited Feb. 26, 2017) [hereinafter “Institute Projects”]. 45. 59 V.I. 611 (V.I. 2013). 402 Stetson Law Review [Vol. 46 the Restatements “remain a helpful guide to determining how other jurisdictions approach [various legal questions].”46
C. The Use of Borrowed Rules or Statutes
A related inquiry is the extent to which other jurisdictions’ statutes, or borrowed rules, may appropriately be used within the Virgin Islands. The Ottley v. Estate of Bell47 and People v. Ventura48 cases addressed these issues, respectively. In People v. Ventura, the superior court considered Superior Court Rule 135 granting defendants the possibility of a new trial when required in the interest of justice.49 Noting that this rule had been borrowed from the federal rules, the court then examined how such a rule is to be interpreted:
Unlike borrowed statutes—which presume that the legislature of the borrowing jurisdiction is aware of and intends to adopt the interpretations of the borrowed statute by the highest court of the jurisdiction from which it is taken—borrowed rules are generally not construed the same. In other words, courts do not state that borrowed rules incorporate the construction given them by the highest court of [the] jurisdiction from which they were borrowed. Instead, courts typically view such earlier constructions of borrowed rules as persuasive, not mandatory.50
In Ottley, the Court considered how to apply precedent from another jurisdiction interpreting a statute substantially similar to a Virgin Islands statute.51 In considering the issue in the context of section 606, which addresses jurisdiction over a claim that is made against an administrator or executor of an estate, the Supreme Court noted two prior Supreme Court opinions in
46. Id. at 623; see also Baptiste v. Rohn, No. 2013-0104, 2016 WL 1261072, at *2 (D.V.I. Mar. 29, 2016) (recognizing that, although “the Supreme Court of the Virgin Islands has held that the Restatements of the Law no longer constitute binding legal authority in the Virgin Islands,” they are still valuable in determining the approach taken by other jurisdictions with respect to different legal causes of actions). 47. 61 V.I. 480 (V.I. 2014). 48. No. SX-2012-CR-076, 2014 WL 3767484 (V.I. Super. Ct. July 25, 2014), aff’d, 64 V.I. 589 (V.I. 2016). 49. Id. at *14. 50. Id. at *15 (internal citations omitted). 51. See Ottley, 61 V.I. at 494–96 (discussing the Oregon Supreme Court’s interpretation of an Oregon statute identical to the one under the court’s consideration). 2017] Living with Banks 403 which the Court had looked for guidance to the courts of another jurisdiction, to see how they had interpreted the statute in question.52 Such guidance would be considered persuasive rather than binding.
IV. DIFFERENTIATING AMONG THE ALI’S VARIOUS PROJECTS
Setting aside for a moment the changing applicability of the Restatements in the Virgin Islands, it is important to differentiate among the ALI’s different projects. At this time, the ALI has twenty-one active projects: twelve are Restatements, two are portions of the Model Penal Code, five are Principles projects, and one involves proposed revisions to several Articles of the Uniform Commercial Code.53 Principles projects serve a different purpose from Restatements. In the case of the ALI’s Principles of the Law of Family Dissolution, for example, which the Virgin Islands Supreme Court considered in Jung v. Ruiz,54 one purpose was to guide legislatures in drafting statutory law.55 The ALI’s website indicates that Principles projects are different from Restatements in that Principles projects are undertaken in areas thought to need substantial legal reform. Thus, Principles projects normally culminate in extensive recommendations for change in the law.56 The specific issue being considered in the Jung case was modification of custody upon relocation of one parent, and the Banks question was whether to apply the ALI’s Principles of Family Dissolution.57 In determining not to do so, the Court held as follows:
[T]he American Law Institute opted to draft Principles rather than a [R]estatement because most of the relevant law in the area of family law is statutory—as such, the Principles were designed to assist legislatures and courts in drafting and interpreting their own laws. Nevertheless, the fact remains
52. Id. at 495. 53. The American Law Institute, Current Projects, ALI.ORG, https://www.ali.org/ projects/ (last visited Feb. 26, 2017). 54. 59 V.I. 1050 (V.I. 2013). 55. Id. at 1058 n.4. 56. Institute Projects, supra note 44. 57. Jung, 59 V.I. at 1058 n.4. 404 Stetson Law Review [Vol. 46
that although the Principles may contain the recommendations of the American Law Institute, they are expressly not a [R]estatement. Moreover, adoption of a [R]estatement is subject to this Court’s authority to shape the common law, and is, thus, not mandatory. . . . Moreover, in the “Chief Reporter’s Foreword,” the drafters note . . . that although the chapter may be utilized by courts to interpret and apply their own statutes, it is preferable that the provisions be adopted through legislation. Accordingly, considering the above, as well as the fact that the Virgin Islands does not have a statutory provision providing factors to balance when modifying a custody arrangement, we decline to deviate from the spirit of our stance in Madir—that the designation of particular criteria to govern this set of circumstances is a matter that is best left to the Legislature.58
Thus, the Ruiz case suggests that, even setting aside the fact that courts applying Virgin Islands law need not follow the ALI’s Restatements, a court might be even more hesitant to apply provisions of the ALI’s Principles projects that are generally intended to serve as a tool for legislatures rather than an interpretive tool for courts.
V. COURTS’ EXPECTATIONS OF THE PARTIES
In addition to modifying how courts use the ALI’s Restatements of the Law, the Banks case and its progeny have provided guidance on how litigants and their attorneys should brief and plead their cases.
A. Briefing
With respect to briefing, the September 2012 Virgin Islands Supreme Court case of Brodhurst v. Frazier59 provides a useful discussion of the Supreme Court’s expectations of both parties and the superior court. The Brodhurst Court actually declined to decide the issue that would have been the result of a Banks analysis, had one been done. The issue presented was whether the Restatement (Third) of Property: Servitudes should govern creation of a servitude implied by a description of land.60 Rather
58. Id. (internal citation omitted). 59. 57 V.I. 365 (V.I. 2012). 60. Id. at 370. 2017] Living with Banks 405 than resolving the issue, the Supreme Court remanded the matter to the superior court, inviting the parties to brief the issue of what law should be applied.61 This case demonstrates the Supreme Court’s expectation that parties and lower courts should take an active role in Banks analysis. Turning from the Supreme Court to the superior court, Benjamin v. Coral World62 articulated the superior court’s expectations of parties in conducting a Banks analysis. In footnote thirty-eight, the court provides the following reminder:
[L]itigants [must comply with] the requirements of [Local Rules of Civil Procedure] (LRCi) 11.1. By signing a motion or supporting memorandum, an attorney certifies that the applicable law in this jurisdiction has been cited, including authority for or against the position being advocated by counsel. LRCi 11.1(a). Therefore, in the absence of discussion addressing: (1) whether cited authority is binding upon this Court or presented as persuasive authority; and (2) why the Court should adopt this view as the “appropriate common law rule based on the unique characteristics and needs of the Virgin Islands” and the parties, the Court may begin striking motions as fatally deficient.63
This case is often cited as precedent for the possibility of sanctions against an attorney who fails to brief a Banks analysis when needed.64
B. Whose Responsibility?
There has been some uncertainty as to whether the parties are responsible for conducting a Banks analysis, or whether only the court must do so. In Lembach v. Antilles School, Inc.,65 the
61. Id. at 369 n.3. 62. No. ST-13-CV-065, 2014 WL 2922306 (V.I. Super. Ct. June 12, 2014). 63. Id. at *3 n.38 (internal citations omitted). Note that identical language is found in Berry v. Performance Constr., No. ST-13-CV-524, slip op. at 4 n.14 (V.I. Super. Ct. Mar. 4, 2015). 64. See, e.g., Percival v. People, 62 V.I. 477, 491 (V.I. 2015) (alluding to the possibility of sanctions for failing to brief a Banks analysis); SBRMCOA, LLC v. Morehouse Real Estate Invs., LLC, 62 V.I. 168, 190 n.75 (V.I. 2015) (suggesting that litigants who simply cite the Restatements in their briefs without discussing Banks may be subject to sanctions); Cacciamani & Rover Corp. v. Banco Popular de Puerto Rico, 61 V.I. 247, 251 n.2 (V.I. 2014) (implying that lawyers who merely cite the Restatements in their briefs without addressing Banks could be sanctioned). 65. No. ST-12-CV-613, 2015 WL 920631 (V.I. Super. Ct. Feb. 25, 2015). 406 Stetson Law Review [Vol. 46 superior court clarified that only the court is required to conduct Banks analyses.66 Even so, parties are not discouraged from doing so.67 In addition, as the Lembach court held, “[P]arties are required to contribute to the analysis by citing to binding authority when faced with questions of law that lack precedent.”68 The superior court in Pate v. Government of the Virgin Islands69 provides further information regarding the litigants’ obligations. The Pate opinion indicates that, as part of litigants’ obligation to cite binding authority, they should be prepared to discuss “(1) whether any cited authority is binding upon [the] [c]ourt[,] [or instead] presented as persuasive authority; and (2) if persuasive, why the [c]ourt should adopt” the rule being argued for.70 To present a compelling case on the latter, the parties should be prepared to persuade the court of “the ‘appropriate . . . rule based on the unique characteristics and needs of the Virgin Islands’ and the parties.”71
C. The Implications of Improper Pleading
When the parties do not cite binding authority, or do not discuss whether the cited authority is binding, the court may strike their motions or pleadings as fatally deficient. Specifically, relying on the Restatements without further analysis may result in a court’s striking the motion or pleading as fatally deficient. Abdallah v. Abdel-Rahman72 is an example of a case in which the court held that the parties’ motions were deficient, although it stopped short of actually striking them. The court described the plaintiff’s motions as follows: “[T]hroughout their motions, the parties occasionally either fail to cite to any authority for their arguments, or cite cases and statutes without reference to or discussion of actual binding authority.”73 The court went on to
66. Id. at *8. 67. Id. 68. Id. 69. No. ST-14-CV-479, 2014 WL 7188999 (V.I. Super. Ct. Dec. 11, 2014). 70. Id. at *8. 71. Id. (quoting Benjamin v. Coral World VI, Inc., No. ST-13-CV-065, ST-13-CV-294, 2014 WL 2922306, at *3 n.38 (V.I. Super. Ct. June 12, 2014)). Identical language is also presented in Edwards v. Marriott Hotel Mgmt. Co. (Virgin Islands), Inc., No. ST-14-CV- 222, 2015 WL 476216, at *10 (V.I. Super. Ct. Jan. 29, 2015). 72. No. ST-13-CV-227, slip op. (V.I. Super. Ct. Mar. 4, 2015). 73. Id. at 5 n.22. 2017] Living with Banks 407 remind the parties of what does and does not constitute binding authority.74 The issue of proper pleading standards often comes up in the context of the parties’ obligations under Local Rules of Civil Procedure 11.1, as mentioned above.75 The court may decline to do a Banks analysis if it finds the party making the claim has failed to plead sufficient facts to support it.76 In Brunn v. Dowdye,77 although the Court found that it had “yet to speak to the elements required to sustain claims of negligent hiring, training, retention, or supervision of an employee,” it found that it did not need to decide the issue of whether the Restatements— or some other common law rule—should govern the issue, “because Brunn’s notice of claim . . . failed to set forth the minimum required factual allegations to enable her claims to proceed.”78 Likewise, in Mayhem Enterprises, LLC v. Powell,79 the superior court provides guidance as to its expectations of the parties. The court denied plaintiff Mayhem’s motion for summary judgment on the issue of promissory estoppel, but provided guidance as to how the claim should be pursued, if at all: “Mayhem’s briefing is insufficient in that it does not cite to any authoritative source of law and instead relies on the Restatement (Second) of Contracts. If Mayhem intends to pursue this claim further, it should ensure that it provides authoritative citations.”80
74. Id. This topic is further discussed below in Part VI(A). 75. See supra note 63 and accompanying text (noting attorneys’ obligation under Local Rule of Civil Procedure 11.1 when filing motions, memoranda, or briefs, to certify to the court that applicable law has actually been cited). See also Christopher v. Skinner, No. ST- 13-CV-575, slip op. at *8 n.29 (V.I. Super. Ct. Sept. 26, 2014) (“Although only the Superior Court is required to conduct Banks analyses, litigants are reminded of the requirements of LRCi 11.1.”). 76. See, e.g., Jacobs v. Roberts, No. ST-14-CV-193, 2015 WL 3406561, at *4 n.23 (V.I. Super. Ct. May 21, 2015) (declining to conduct a Banks analysis because defendants “failed to allege sufficient facts establishing a claim for contribution”). 77. 59 V.I. 899 (V.I. 2013). 78. Id. at 911 n.10. 79. No. ST-10-CV-125, 2015 WL 6784233 (V.I. Super. Ct. Oct. 30, 2015). 80. Id. at *4 n.11 (internal citations omitted). 408 Stetson Law Review [Vol. 46
VI. REVISITING PRE-BANKS JURISPRUDENCE
A. What is Binding Authority?
There has been fairly extensive discussion at both the superior court and the Supreme Court level of what constitutes binding authority. The superior court has held that the only decisions binding upon it are those rendered by the Virgin Islands Supreme Court, the Third Circuit Court of Appeals when serving as the de facto court of last resort in the Virgin Islands, and the Appellate Division of the District Court of the Virgin Islands.81 With respect to Third Circuit precedent, the superior court has held that a pre-Banks Third Circuit case based on V.I. Code, Title 1, section 4 is not binding authority. Instead, all prior cases explicitly relying on V.I. Code, Title 1, section 4 are now effectively repealed.82 Even so, when the Supreme Court has not yet provided an interpretation of local law, the superior court has indicated it will continue to follow the Third Circuit’s interpretation.83 Along the same lines, in Garcia v. Garcia,84 the Supreme Court held as follows:
[W]e reiterate our longstanding position that decisions of the Third Circuit interpreting local Virgin Islands law issued during the period in which that court served as the de facto court of last resort for the Virgin Islands are “entitled to great respect.” And while this Court unquestionably possesses the authority to depart from those holdings, we recognize that there are costs associated with doing so, such as potentially “disrupt[ing] the state of the law in the Virgin Islands.”85
The Third Circuit has held similarly:
81. Courts generally cite Connor for this proposition. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 n.1 (V.I. 2014). See, e.g., Pate v. Gov’t of the V.I., No. ST-14-CV-479, 2014 WL 7188999, at *8 n.79 (V.I. Super. Ct. Dec. 11, 2014) (explicating the types of decisions that are binding on the superior court). 82. Nicholas v. Damian-Rojas, 62 V.I. 123, 129 n.5 (V.I. Super. Ct. 2015). 83. The Nature Conservancy, Inc. v. Louisenhoj Holdings, LLC, No. ST-13-CV-124, 2014 WL 3509046, at *1 n.1 (V.I. Super. Ct. July 8, 2014). 84. 59 V.I. 758 (V.I. 2013). 85. Id. at 776 (citing Defoe v. Phillip, 56 V.I. 109, 120 (V.I. 2012)); Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 981 (V.I. 2011) (internal citations omitted); People v. Todmann, 53 V.I. 431, 438 n.6 (V.I. 2010). 2017] Living with Banks 409
We . . . conclude that the Virgin Islands Supreme Court may reject our local decisions that predate its establishment. Of course, just as the Supreme Court of Guam was subject to a manifest-error standard of review during the Ninth Circuit’s short-lived certiorari period, the Virgin Islands Supreme Court is subject to the same standard of review during our certiorari period. This standard certainly limits the Supreme Court’s freedom to reject our decisions. But it does not force the Supreme Court to follow us in lock-step.86
With respect to district court precedent, the superior court has held that it is not bound by opinions issued by the district court when it was acting as a trial court.87 The superior court has also held that it is not bound by Supreme Court opinions in which the Court did not do a Banks analysis.88
B. The Role of Lower Courts in the Law-Making Process
The superior court itself also has a role in shaping Virgin Islands common law. By way of example, in the case of Anderson v. Bryan,89 having determined that there was no controlling Virgin Islands law on the issue in question, the superior court had the power to decide which common law rule should apply.90 This case involved the issue of how definite the description of an area must be in determining whether the statute of frauds has been satisfied with respect to an easement. The court held that, since the easement itself was sufficiently certain to satisfy the statute of frauds, the fact that the description did not make it clear what portion was to be paved was not relevant.91 In 3RC & Co. v. Boynes Trucking System, Inc.,92 the Supreme Court described how it uses lower court Banks analyses in crafting its own Banks analysis. In so doing, the Supreme Court clarified the superior court’s role in the law-making process.93 The Supreme Court is, of course, not bound by superior court Banks
86. DeFoe v. Phillip, 702 F.3d 735, 745 (3d Cir. 2012). 87. The Nature Conservancy, Inc., 2014 WL 3509046, at *1 n.2. 88. Edwards v. Marriott Hotel Mgmt. Co. (Virgin Islands), Inc., No. ST-14-CV-222, 2015 WL 476216, at *4 n.21 (V.I. Super. Ct. Jan. 29, 2015). 89. 57 V.I. 134 (V.I. Super. Ct. 2012). 90. Id. at 138. 91. Id. at 139. 92. 63 V.I. 544 (V.I. 2015). 93. Id. at 551–52. 410 Stetson Law Review [Vol. 46 analyses, but has made it clear that the lower court’s analysis is very useful. This is one reason the Supreme Court will remand when the superior court has not yet provided a Banks analysis.94 The 3RC case involved the question of how the superior court’s previously articulated standards for a preliminary injunction should be weighed.95 In deciding the issue, and ultimately adopting a formulation slightly different from what the superior court had recommended, the Court held that independent decisions of the superior court improve the quality of the Supreme Court’s own decisions, and that “the appropriate time to examine [an] issue and determine the proper injunction standard under Virgin Islands law” is therefore after the Court has “the benefit of a comprehensive examination of this issue from the Superior Court . . . in addition to the commentary on this issue in a number of other Superior Court decisions.”96
C. The Role of the Supreme Court
As the superior court noted in People v. Willis,97 Supreme Court Rule 38 established a procedure for federal courts to ask the Supreme Court to answer a question of Virgin Islands law in instances in which it appears that there is no controlling precedent.98 This procedure is based on the authority granted to the Virgin Islands Supreme Court as the highest local court in the jurisdiction to answer certified questions pursuant to V.I. Code, Title 4, section 32(b).99 In determining what constitutes controlling precedent, the Virgin Islands Supreme Court has also differentiated between cases that analyze and decide issues of law and those that merely reference legal issues without deciding them. Specifically, the Court has held that “fleeting references” in opinions to issues that were never raised or discussed should not be cited as controlling authority.100 By way of example, the Virgin Islands Supreme
94. Id. 95. Id. at 550. 96. Id. at 551–52. 97. Nos. ST-14-CR-074, ST-14-CR-075, 2015 WL 652439 (V.I. Super. Ct. Feb. 12, 2015). 98. Id. at *2 n.11. 99. Id. 100. Hansen v. O’Reilly, 62 V.I. 494, 516 n.23 (V.I. 2015); Estick v. People, 62 V.I. 604, 624 n.7 (V.I. 2015). 2017] Living with Banks 411
Court has declined to follow a district court case that was only slightly more than two pages long and cited to no caselaw, even though other Virgin Islands courts had relied upon that decision.101 Joseph v. Daily News Publishing Co., Inc.,102 a 2012 Virgin Islands Supreme Court case, demonstrated how a court should approach a Banks analysis when a local court has already addressed the issue, but has not conducted a Banks analysis.103 Joseph was a defamation case in which the Court was considering the basic elements of a defamation claim.104 Kendall v. Daily News Publishing Co.,105 another Virgin Islands Supreme Court case, had already addressed these elements, albeit pre-Banks.106 Rather than using the Kendall case to determine—as some courts have—that no Banks analysis is needed, the Court took a better and clearer approach, using Kendall to establish the first element of the Banks analysis—how local courts have previously addressed an issue.107
D. Parties’ Affirmative Obligation to Request Review of a Pre-Banks Rule When Desired
Although the Virgin Islands Supreme Court has the authority to raise a Banks issue sua sponte, several Supreme Court decisions make it clear that the Court is generally not inclined to do so when the litigants have not raised the issue or requested that the Court exercise its inherent power to adopt a different rule. Instead, the Court will normally consider adopting a different rule only after receiving the benefit of the parties’ briefing.108 The Supreme Court’s decision in Williams v. People of the Virgin Islands109 provides an example. The Williams case
101. Rennie v. Hess Oil Virgin Islands Corp., 62 V.I. 529, 539 (V.I. 2015) (citing Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 983 (V.I. 2011), which discredited the precedential value of a district court case that, despite having been cited with approval by other Virgin Islands courts, lacked sufficient substantive analysis to lend itself to having even persuasive value). 102. 57 V.I. 566 (V.I. 2012). 103. Id. at 585 n.10. 104. Id. at 585–86. 105. 55 V.I. 781, 787–88 (V.I. 2011). 106. Joseph, 57 V.I. at 585–86. 107. Id. at 585 n.10. 108. Estick v. People, 62 V.I. 604, 619 n.7 (V.I. 2015). 109. 58 V.I. 341 (V.I. 2013). 412 Stetson Law Review [Vol. 46 involved the question of whether a defendant must be physically present at re-sentencing.110 In considering the issue, the court pointed out that the defendant cited only a single federal case and, more important, declined to cite a more recent Virgin Islands Supreme Court case on point.111 Because the parties had advanced no argument as to why the Court should revisit its prior holding, the Court followed its own recent decision.112 Perez v. Ritz-Carlton (Virgin Islands), Inc.,113 likewise, demonstrated that, when there has been previous reliance on a Restatement in a pre-Banks case and neither party has raised the issue of whether this rule should be revisited, the parties should not expect the Supreme Court to raise the issue sua sponte.114
VII. WHEN COURTS DO OR DO NOT PERFORM A BANKS ANALYSIS
Studying Supreme Court and superior court cases applying Banks provides some useful perspectives on when the courts conduct a Banks analysis, and when they choose not to do so.
A. Statistics on When a Banks Analysis is Completed115
Looking at the body of cases citing Banks, when Banks is cited, a Banks analysis is actually completed in just over forty percent of the cases. In sixty-seven cases, either no Banks analysis was deemed necessary or Banks was cited for a different reason, such as a discussion of federalism or the history of the Virgin Islands judiciary.116 Twenty-five of these cases were at the Supreme Court level, one was a Third Circuit case, seven were at the district court level, thirty-three were superior court cases, and one case was decided in the District Court for the Eastern District of New York. In fifty-one cases, a Banks analysis was conducted. Fourteen were Supreme Court cases, three were
110. Id. at 352. 111. Id. 112. Id. 113. 59 V.I. 522 (V.I. 2013). 114. Id. at 529 n.5. 115. These statistics have been gathered from relevant Virgin Islands cases from the issuance of the Banks opinion in 2011 through October 31, 2016. 116. Der Weer v. Hess Oil V.I. Corp., No. SX-05-CV-274, 2016 WL 1644948, at *4 (V.I. Super. Ct. April 25, 2016), is an example of a case in which Banks was cited for its discussion of the history and development of the Virgin Islands judiciary. 2017] Living with Banks 413 district court cases, and thirty-four were at the superior court level. Whether courts do or do not perform a Banks analysis is not always a binary inquiry; instead, some courts use some of the language of Banks without doing a full Banks analysis.
B. Matters Controlled by Statute
The superior court has stated that a Banks analysis is not needed when the matter is controlled by statute. In Alleyne v. Diageo USVI, Inc.,117 for example, the court noted that a prior court had conducted a Banks analysis to determine the definition of nuisance, but held that it was unnecessary to have done so because there is a statute on point.118 Likewise, in Der Weer v. Hess Oil Virgin Islands Corp.,119 the superior court found that no Banks analysis was needed on the topic of amending a complaint to add a survival claim to a wrongful death cause of action because the matter was controlled by statute.120 Even so, the court held that a new analysis was needed “because courts in the Virgin Islands have uncritically relied on the trial-level decisions of the District Court of the Virgin Islands . . . which . . . are merely persuasive [for] the Superior Court.”121 This case thus demonstrates that Banks analyses are not the only kind of new analysis that is required of matters that have not yet been determined by binding authority. Having said this, the superior court has on occasion distinguished those statutes based on the common law or closely tied in to the common law as being appropriate fodder for a Banks analysis. The Lembach court clarified that a Banks analysis is appropriate not only when a question of common law lacks precedent, but also in certain circumstances when the question involves a statute.122 The court cited Rennie v. Hess Oil
117. 63 V.I. 384 (V.I. Super. Ct. 2015). 118. Id. at 405 n.6. 119. 61 V.I. 87 (V.I. Super. Ct. 2014). 120. Id. at 98. A later Superior Court opinion in this same matter clarified that, had a Banks analysis been required, the parties could not have avoided such an analysis being done by failing to raise the issue, since “the parties cannot stipulate to the law.” Der Weer v. Hess Oil V.I. Corp., SX–05–CV–274, 2016 WL 1019689, at *16 (V.I. Super. Ct. Mar. 15, 2016) (quoting Matthew v. Herman, 56 V.I. 674, 682 (2012)). 121. Der Weer, 61 V.I. at 105 n.4. 122. Lembach v. Antilles Sch., Inc., No. ST-12-CV-613, 2015 WL 920631, at *8 (V.I. Super. Ct. Feb. 25, 2015). 414 Stetson Law Review [Vol. 46
Virgin Islands Corp.,123 Machado v. Yacht Haven,124 and Christopher v. Skinner,125 cases addressing wrongful discharge, assumption of risk, and partition, respectively, as all “cases [that] deal with statutes that were either based on or have significant interaction with the common law.”126
C. Prior Adoption of a Restatement Rule or Prior Banks Analysis
Superior court precedent suggests that the court may choose not to conduct a Banks analysis when another court has already decided that a given Restatement is applicable. In Cifre v. Daas Enterprises, Inc.,127 for example, the court decided not to conduct a Banks analysis as to the elements of a public nuisance claim, because it was satisfied with the soundness of a Banks analysis conducted by another superior court, and thus incorporated its analysis and definition of nuisance by reference.128 Pickering v. Arcos Doradas Puerto Rico, Inc.129 presents a similar analysis: although the Supreme Court had not yet issued an opinion defining the elements of an intentional infliction of emotional distress cause of action, two superior court opinions had done so.130 Because the court was satisfied with the analysis and conclusion in each of those cases, it adopted the analyses of both.131 As one final example of this trend, the court in Cintron v. Polston132 held that no Banks analysis of the elements of respondeat superior and the scope of employment was needed when the same judge had already conducted such an analysis of
123. 62 V.I. 529 (V.I. 2015). 124. 61 V.I. 373 (V.I. 2014). 125. No. ST-13-CV-575, slip op. (V.I. Super. Ct. Sept. 26, 2014). 126. Lembach, 2015 WL 920631, at *8 n.53. 127. 62 V.I. 338 (V.I. Super. Ct. 2015). 128. Id. at 358. 129. No. ST-15-CV-313, 2015 WL 6957082 (V.I. Super. Ct. Nov. 9, 2015). 130. Id. at *4. 131. Id. (citing Joseph v. Sugar Bay Club & Resort Corp., No. ST-13-CV-491, 2014 WL 1133416, at *3 (V.I. Super. Ct. Mar. 17, 2014), rev’d in part, No. 2014-0048, 2015 WL 682117 (V.I. Feb. 17, 2015)); Donastorg v. Daily News Publ’g Co., Inc., 63 V.I. 196, 294–96 (V.I. Super. Ct. 2015). Notably, all three decisions were rendered by the same judge, Judge Denise M. Francois. See also Pate v. Gov’t of the V.I., No. ST-14-CV-479, 2014 WL 7188999, at *3 n.24 (V.I. Super. Ct. Dec. 11, 2014) (applying the hybrid sliding scale test from the superior court’s Banks analysis in SBRMCOA). 132. 62 V.I. 144, 148 (V.I. Super. Ct. 2015). 2017] Living with Banks 415 this issue in the case of Walker v. Virgin Islands Waste Management Authority.133 By way of contrast, Alleyne is an example of a case in which the superior court declined to apply a Banks analysis done by another court at the same level.134 The case involved the elements of intentional trespass and the question of whether negligent trespass is a separate cause of action.135 The superior court had already conducted a Banks analysis of the elements of trespass136 but had not, according to the Alleyne court, differentiated between intentional and negligent trespass. Instead of adopting what it characterized as the broader rule articulated by the Radcliffe court, the Alleyne court decided to adopt the Restatement formulation of intentional trespass.137 Thus, there are instances in which a court defers to a prior Banks analysis done at the same level, and instances in which a court does not. Still other cases involve superior courts declining to follow pre-Banks Supreme Court decisions or even post-Banks decisions in which the Supreme Court did not conduct a Banks analysis. In Cifre v. Daas Enterprises, Inc.,138 the superior court held that it need not follow a pre-Banks Supreme Court decision that had mechanistically applied the Restatements.139 Ultimately, the Cifre court found that it need not reach the issue that would have been the basis of the Banks analysis anyway.140 In Slack v. Slack,141 the court went a step further and declined to follow a post-Banks Supreme Court decision that it held had mechanistically applied the Restatements.142 In so doing, the court cited the Connor decision for its language indicating that the Supreme Court had “adopted a practice of reconsidering its pre-Banks decisions which were based solely on former 1 V.I. [Code section] 4, and therefore, the Superior Court ‘should not be foreclosed from departing from those holdings in an appropriate
133. 62 V.I. 53, 60 (V.I. Super. Ct. 2014). 134. 63 V.I. 384, 414 (V.I. Super. Ct. 2015). 135. Id. 136. Bell v. Radcliffe, No. ST-13-CV-392, 2015 WL 5773561, at *5–7 (V.I. Super. Ct. Apr. 30, 2015). 137. Alleyne, 63 V.I. at 417. 138. 62 V.I. 338 (V.I. Super. Ct. 2015). 139. Id. at 364–65. 140. Id. at 365. 141. 62 V.I. 366 (V.I. Super. Ct. 2015). 142. Id. at 378. 416 Stetson Law Review [Vol. 46 case, provided that it thoroughly explains the reasoning for its decision.’”143
D. Prior Pre-Banks Decisions or Decisions in Which No Banks Analysis Was Done
Notably, the superior court has sometimes declined to depart from Supreme Court precedent, even when the Supreme Court did not do a Banks analysis, when the superior court has found that the Restatement is the best fit.144 Alternatively, the superior court has also declined to do a Banks analysis in several cases in which it indicated it was “unaware of any local law, including caselaw, which would require deviation” from a Restatement rule145 or when a Restatement rule has been widely cited in the Virgin Islands and other jurisdictions.146 One case employing this language was MRL Development I, LLC v. Whitecap Investment Corp., in which the court elected to apply the Restatement (Second) of Contracts rule with respect to privity of contract and third-party beneficiaries.147 Similar language appears in In re Prosser, a district court case: “Although the Supreme Court of the Virgin Islands has stated that no Restatement should be mechanically applied in all cases, this Court is unaware of any local law, including case law, which would require deviation in this case.”148 A variation of this analysis appears in Virgin Islands Port Authority v. Callwood,149 in which the court declined to deviate from a pre-Banks Third Circuit opinion applying Restatement
143. Id. (quoting Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 n.1 (V.I. 2014)). 144. This language appears in Edwards v. Marriott Hotel Mgmt. Co. (Virgin Islands), Inc., No. ST-14-CV-222, 2015 WL 476216, at *8 n.62 (V.I. Super. Ct. Jan. 29, 2015); Abdallah v. Abdel-Rahman, No. ST-13-CV-227, slip op., at 4 n.13 (V.I. Super. Ct. Mar. 4, 2015); Berry v. Performance Constr., No. ST-13-CV-524, slip op., at 5 n.17 (V.I. Super. Ct. Mar. 4, 2015) (citing both pre-Banks and post-Banks Supreme Court opinions in which the superior court indicated no Banks analysis was done). 145. MRL Dev. I, LLC v. Whitecap Inv. Corp., No. CV 2013-48, 2014 WL 793132, at *2 n. 2 (D.V.I. Feb. 26, 2014). 146. Huggins v. Chungani, No. ST-14-CV-115, 2014 WL 4662323, at *2 n.2 (V.I. Super. Ct. Sept. 18, 2014). 147. 2014 WL 793132, at *2–3. 148. No. 06-30009 (JFK), 2013 WL 5422881, at *3 n.2. (D.V.I. Sept. 27, 2013); see Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 980 (V.I. 2011) (explaining that because the court’s decision constitutes “local law,” the court has the discretion to decline to follow the Restatement). 149. No. ST-11-CV-305, 2014 WL 905816 (V.I. Super. Ct. Feb. 28, 2014). 2017] Living with Banks 417
(Second) of Torts sections 525, 526, and 549.150 In that case, the court noted that it was not “‘foreclosed from adopting a different common law rule’ than those cited by otherwise binding authority,” but also was not required to conduct a Banks analysis because the court found no reason to depart from the Third Circuit’s application of the Restatement provisions in question.151 Because these cases represent a significant trend, it is notable that the Supreme Court has articulated, as recently as in the March 2016 Antilles School, Inc. v. Lembach152 case, that pre- Banks Virgin Islands Supreme Court cases “should not be ‘blindly follow[ed]’ if they ‘were predicated solely on 1 V.I. [Code section] 4.’”153 It will be interesting to see whether the superior court demonstrates that its decision to follow such precedent has not been blind.
E. Using Prior Adoption of One Restatement Rule to Justify Adopting Others
Sometimes, superior courts have actually gone a bit further in deferring to prior use of a Restatement rule. For example, the court might use the Supreme Court’s prior adoption of one section of a Restatement to justify application of other Restatement sections relating to the same concept. In Guardian Insurance Co. v. Estate of Knight-David,154 for example, the court noted that the Supreme Court had not done a Banks analysis in Ross v. Hodge,155 a post-Banks case, before applying the elements of conversion from the Restatement (Second) of Torts.156 Even so, the court held that there was no reason to depart from this analysis because it found the Ross decision to be consistent with the needs of the Virgin Islands.157 Importantly, the court then went on to apply additional Restatement provisions relating to conversion.158 Similarly, in Creative Minds, LLC v. Reef
150. Id. at *5 n.43. 151. Id. (quoting Gov’t. of the V.I. v. Connor, 60 V.I. 597, 605 n.1 (V.I. 2014)). 152. No. 2015-0039, 2016 WL 948969 (V.I. Mar. 14, 2016). 153. Id. at *5 n.5 (quoting Connor, 60 V.I. at 605 n.1). 154. No. ST-08-CV-189, slip op. (V.I. Super. Ct. Mar. 4, 2015). 155. 58 V.I. 292, 308–10 (V.I. 2013). 156. Guardian Ins. Co., slip op., at 4 n.16 (V.I. Super. Ct. Mar. 4, 2015). 157. Id. 158. Id. at 4–5. The court did something very similar in Police Benevolent Assoc. v. Brooks, No. ST-12-CV-123, slip op., at 3 n.10 (V.I. Super. Ct. Mar. 4, 2015). 418 Stetson Law Review [Vol. 46
Broadcasting, Inc.,159 the court used the prior Supreme Court analysis in the Arlington Funding160 case, in which the court had applied Restatement (Second) of Contracts section 235, to justify its use of both that section and “portions of the Restatement clarifying or expanding upon”161 that section. The Supreme Court has now made it clear, in the Antilles School, Inc. v. Lembach case, that “the fact that [the Supreme Court] may have cited to— or even adopted a section of—a particular Restatement should not be construed as a ‘wholesale adoption’ of the Restatements,” and provides several examples of Supreme Court decisions rejecting a section of a Restatement after agreeing with another section of the same Restatement.162 Thus, the Supreme Court has now rejected the approach taken in the Guardian Insurance and Creative Minds cases.163 By contrast, in Jacobs v. Roberts,164 the court noted that the superior court had already conducted a Banks analysis adopting Restatement of Torts sections 22 and 23, but had focused on the limitations of actions for contribution and indemnity, rather than the question at bar, which related to the elements of such a cause of action.165 Although the court expressed uncertainty as to whether a Banks analysis was needed, it went ahead and conducted a limited Banks inquiry anyway.166 Following the Antilles School case, this seems clearly to have been the right approach.
F. Parties’ Failure to Establish a Genuine Issue of Material Fact
When a party has failed to establish a genuine issue of material fact regarding an issue that would require
159. No. ST-11-CV-131, 2014 WL 4908588, at *5 n.21 (V.I. Super. Ct. Sept. 24, 2014). 160. Arlington Funding Services, Inc. v. Geigel, No. CIV. 2008-007, 2009 WL 357944 (V.I. Feb. 9, 2009). 161. Creative Minds, LLC, 2014 WL 4908588, at *5 n.21. 162. No. 2015-0039, 2016 WL 948969, at *3 n.1 (V.I. Mar. 14, 2016). 163. Consistent with the Antilles School, Inc. holding, the Superior Court in Tutein v. Ford Motor Co. held that a Banks analysis was necessary to determine whether section 3 of the Restatement (Third) of Torts: Products Liability should be adopted, notwithstanding the prior adoption of the first two sections. No. SX-10-CV-18, 2016 WL 3186481, at *5 (V.I. Super. Ct. Mar. 18, 2016). 164. No. ST-14-CV-193, 2015 WL 3406561 (V.I. Super. Ct. May 21, 2015). 165. Id. at *2. 166. Id. 2017] Living with Banks 419 reconsideration of a Restatement rule, the court may decline to do a Banks analysis to determine the applicability of the rule. This issue arose in Roebuck v. Virgin Islands Housing Authority,167 in which the matter in question was the applicability of Restatement (Second) of Contracts section 205 dealing with the implied covenant of good faith and fair dealing.168
G. Prior Supreme Court Precedent
In addition, the superior court should find that no Banks analysis is needed if the Supreme Court has already addressed the issue that would be the subject of a Banks analysis. In Stapleton v. WenVI, Inc.,169 the court found that there was no need for a Banks analysis because there was post-Banks Supreme Court precedent applying the common law construction of fraud in the context of good faith and fair dealing.170 Similarly, in FirstBank Puerto Rico v. Webster,171 because the Supreme Court had previously affirmed the superior court’s granting of summary judgment based on a party’s failure to establish a genuine issue of material fact under Restatement (Second) of Contracts section 205, the superior court held that no Banks analysis was necessary.172 Likewise, if the Supreme Court has already adopted elements of a cause of action in a post-Banks analysis, it need not revisit the issue.173
H. Matters of Well-Established Law
The superior court has also held that a Banks analysis is not needed if the legal issue under consideration is well established as a matter of basic law practice. In Walsh v. Daly,174 for example, the court found a Banks analysis of the elements of breach of
167. 60 V.I. 137 (V.I. Super. Ct. 2014). 168. Id. at 145. 169. No. CV 2012-035, 2014 WL 3765855 (D.V.I. July 30, 2014). 170. Id. at *3 n.3. 171. No. ST-12-CV-239, 2014 WL 985144 (V.I. Super. Ct. Mar. 7, 2014) reconsideration granted, order vacated in part, ST-12-CV-239, 2014 WL 3592093 (V.I. Super. Ct. July 16, 2014). 172. Id. at *1 n.3 (citing Chapman v. Cornwall, 58. V.I. 431 (V.I. 2013)). 173. See, e.g., Simpson v. Capdeville, P.C., S. Ct. Civ. No. 2013-0144, 2016 WL 1592411, at *4 (V.I. Apr. 18, 2016) (citing the post-Banks Supreme Court decision of Joseph v. Daily News Publ’g Co., 57 V.I. 566, 585–87 (V.I. 2012), in which elements of defamation had been adopted). 174. No. ST-01-CV-165, 2014 WL 2922302 (V.I. Super. Ct. June 18, 2014). 420 Stetson Law Review [Vol. 46 contract to be unnecessary, for two reasons. First, the Supreme Court had “repeatedly upheld the basic elements of a breach of contract claim.”175 Second, the court held that the elements of a breach of contract claim are “so fundamental to the common law jurisprudence in the Virgin Islands that a Banks analysis [was] unnecessary.”176 Marian v. Fraser177 included similar analysis with respect to the elements of common law negligence. Although the court noted that the Supreme Court had not explicitly conducted a Banks analysis on this issue, it held that the elements had been implicitly adopted in a number of Supreme Court opinions.178 In addition, the court held that the “essential elements of negligence are so widely accepted and fundamental to the practice of law in the United States and the Virgin Islands, that requiring a Banks analysis in this instance would yield the same result.”179 Other courts, however, have taken the opposite approach. In Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P.,180 the superior court noted that the Supreme Court of the Virgin Islands has never defined the elements of a breach of contract case, post-Banks, without relying on either the Restatements or precedent drawn from the Restatements.181 The court disagreed with other superior court cases holding that the elements are so fundamental that no Banks analysis is needed, but also noted that its “task [was] greatly simplified by the near-uniform treatment of this cause of action.”182 Likewise, in Government v. American Federation of Teachers, Local 1825,183 the court noted that, although “[t]he parties do not dispute that functus officio applies in this matter” and is a “longstanding common law concept,” a Banks analysis was needed because there was no binding precedent expressly adopting the principle and articulating the relevant exceptions.184 As a practical matter, then, litigants should be ready to fully brief the three Banks
175. Id. at *6 n.52. 176. Id. 177. No. ST-13-CV-549, 2014 WL 1239492 (V.I. Super. Ct. Mar. 17, 2014). 178. Id. at *2 n.14. 179. Id. 180. No. ST-2014-CV-513, 2015 WL 9031220 (V.I. Super. Ct. Nov. 10, 2015). 181. Id. at *3 n.31. 182. Id. 183. 61 V.I. 34 (V.I. Super. Ct. 2014). 184. Id. at 39. 2017] Living with Banks 421 factors whenever there is not already binding authority in the form of a prior Banks analysis on point.185 As a slight variation on this theme, if the court is not adopting a specific standard, but is instead simply referring to some element that can be considered widely accepted in the Virgin Islands, the court may find that a Banks analysis is not necessary. For example, in Powell v. Chi-Co’s Distributing, Inc.,186 although the superior court noted that there was no local statute addressing the issue of gross negligence or the standard for determining when punitive damages should be assessed for gross negligence, it concluded that no Banks analysis was needed because, rather than adopting a specific standard, the court was simply making reference to the “recklessness” element of the tort.187 The court described this element as having been “widely accepted” both in the Virgin Islands and in a majority of other jurisdictions, citing Tutein v. Parry188 for its discussion of how various jurisdictions had defined gross negligence.189 The Powell court held that the “least stringent standard adopted” of those it had considered had included reckless conduct.190 An alternative approach would have been for the court to have conducted a Banks analysis, but used the fact that recklessness has been widely adopted both in the Virgin Islands and in a majority of other jurisdictions to satisfy the first and second elements of the test.
I. Additional Procedural Reasons Not to Do a Banks Analysis
In at least two cases, the superior court has declined to conduct a Banks analysis for procedural reasons not already discussed. For example, in Fenster v. Dechabert,191 the court held that what it termed the “inordinate time pressure” it faced to render a decision on a party’s request for a temporary restraining
185. Antilles Sch., Inc. v. Lembach, S. Ct. Civ. No. 2015-0039, 2016 WL 948969, at *14 n.13 (V.I. Mar. 14, 2016). 186. No. ST-13-TOR-14, 2014 WL 1394183 (V.I. Super. Ct. Apr. 3, 2014). 187. Id. at *2 n.11. 188. 48 V.I. 101 (V.I. Super. Ct. 2006). 189. Powell, 2014 WL 1394183, at *2 n.11. 190. Id. (citing Tutein, 48 V.I. at 106–07). 191. No. SX-16-CV-343, 2016 WL 3913574 (V.I. Super. Ct. July 13, 2016). 422 Stetson Law Review [Vol. 46 order prevented it from undertaking a Banks analysis.192 Instead, the court looked to pre-Banks Third Circuit caselaw that was rendered prior to the establishment of the Virgin Islands Supreme Court.193 In addition, in In re Refinery Dust Claims,194 although the court held that the question of whether contribution and indemnification remain viable causes of action post-Banks must be answered, it determined that the defendants’ Motion for Leave to File a Third-Party Complaint did not present the appropriate vehicle for such an analysis.195 Specifically, the court held, “[T]he majority of the proposed third-party defendants were not brought into the first-party lawsuit, and therefore, have not been served with this Motion.”196
J. Banks Analysis Deemed Futile
As one final example, the superior court might choose not to conduct a Banks analysis if it determines that the analysis would be futile. By way of example, when the court considered the subject of prima facie torts in the case of Edwards v. Marriott Hotel Management Co.,197 the court declined to conduct a Banks analysis because it held that prima facie torts could conceivably be an immeasurable concept and thus not amenable to a Banks analysis.198 In so holding, the court cited its own concurrent authority to shape Virgin Islands common law and thus develop new torts and other causes of action to further the causes of justice.199
VIII. WHEN MUST A BANKS ANALYSIS BE DONE?
A. Guidance to Parties
The superior court has provided guidance to parties as to when a Banks analysis is appropriate, noting instances in which the parties have “hesitantly and partially applied Banks,” making
192. Id. at *6. 193. Id. 194. No. SX-06-CV-78, 2016 WL 2865735 (V.I. Super. Ct. May 3, 2016). 195. Id. at *5. 196. Id. 197. No. ST-14-CV-222, 2015 WL 476216 (V.I. Super. Ct. Jan. 29, 2015). 198. Id. at *6 n.42. 199. Id. 2017] Living with Banks 423 note that they were not sure whether the analysis was required.200 In so holding, the Lembach v. Antilles School, Inc.201 court clarified that it is ultimately the court’s responsibility to conduct this analysis, as discussed above, but that the parties “are required to contribute to the analysis by citing to binding authority when faced with questions of law that lack precedent.”202 The court held that “Banks analyses are appropriate when a question of law lacks precedent concerning [the following]: the common law, application of a Restatement of Law, or, even, in certain circumstances, when the question involves a statute.”203 As discussed above, a Banks analysis would be appropriate in a case controlled by statute, if the statute was either based on or had significant connection with the common law.204 The Supreme Court opinion in this same case clarified the obligations of the parties: “Members of the Virgin Islands Bar . . . must be cognizant of their responsibility to serve as advocates for their clients, which includes making all necessary legal arguments, including a non-perfunctory analysis of all three Banks factors when one is required.”205
B. Guidance to Magistrate Courts
The superior court has also provided some guidance to the magistrate court—making it clear that it may remand a matter to the magistrate court (rather than doing the Banks analysis itself) if the magistrate court relied on V.I. Code, Title 1, section 4 and a mechanical application of the Restatements. In Wild Orchid Floral & Event Design v. Banco Popular de Puerto Rico,206 the court noted that there had been a dispute previously as to
200. Lembach v. Antilles Sch., Inc., No. ST-12-CV-613, 2015 WL 920631, at *8 (V.I. Super. Ct. Feb. 25, 2015). 201. Id. 202. Id. 203. Id. (internal citation omitted). 204. See supra Part VII(B) and accompanying text. (asserting that statutes based on common law or significantly tied to common law may be appropriate grounds for a Banks analysis). 205. Antilles Sch., Inc. v. Lembach, S.CT.CIV. 2015-0039, 2016 WL 948969, at *14 n.13 (V.I. Mar. 14, 2016). 206. 62 V.I. 240 (V.I. Super. Ct. 2015) opinion corrected sub nom. Wild Orchid Floral & Event Design v. Banco Popular de Puerto Rico, No. SX-12-SM-600, 2015 WL 1726437 (V.I. Super. Ct. Apr. 13, 2015). 424 Stetson Law Review [Vol. 46 whether Magistrate Division cases would be considered local law. The court acknowledged the open question as to whether a decision of a single judge in the Appellate Division would bind— or just be persuasive to—other superior court judges in the Appellate Division, as well as the Magistrate Division.207 Even so, the court emphasized that Magistrate judges share the power and responsibility of shaping the common law and thus cannot subordinate their rule to the ALI via mechanistic application of the Restatements.208 The court thus remanded the matter to the Magistrate Division to do a Banks analysis rather than doing the analysis itself.209 This opinion clarified the role of magistrate courts in the common law process:
[L]ike “every judicial system in the United States” the Virgin Islands has its court system “arranged in a pyramid, with trial courts at its base and a single court at the top with ultimate authority,” through which the “independent decisions of lower courts” leads to improved “quality of appellate decisions.”210
Thus, this case makes it clear that magistrate courts are responsible for their own Banks analyses even though their decisions are not final until they are reviewed by a superior court judge in the Appellate Division. In Ferris v. Withey,211 similarly, the superior court remanded a matter involving abatement of rent to the magistrate court, because the magistrate court had not identified the authority it was relying upon to permit rent abatement.212 In explaining its holding, the superior court stated that, although the “magistrate court’s legal conclusions are reviewed under a plenary standard . . . ‘meaningful review is not possible where the trial court fails to sufficiently explain its reasoning.’”213
207. Id. at 250. 208. Id. at 253. 209. Id. 210. Id. at 245–46 (internal citations omitted). 211. No. SX-2014-SM-038, 2014 WL 4056321 (V.I. Super. Ct. May 9, 2014). 212. Id. at *1. 213. Id. at *2 (internal citations omitted) (quoting Rieara v. People, 57 V.I. 659, 668 (V.I. 2012)). 2017] Living with Banks 425
C. Guidance to the Superior Courts
Likewise, the Supreme Court has indicated that it will remand a matter to the superior court when it should have completed a Banks analysis and has not done so. In Bertrand v. Mystic Granite & Marble, Inc.,214 the Supreme Court remanded a matter in which the superior court had relied on former V.I. Code, Title 1, section 4 to apply the Restatements as the binding law of the territory.215 In so holding, the Court expressed its expectation that the superior court would complete a Banks analysis when the Supreme Court has not yet done so.216
IX. WHICH FACTOR CONTROLS?
The next issue to be considered is, when a Banks analysis is done, which of the three Banks factors controls? Is there a dominant Banks factor? In undertaking to answer this question, I tallied individual Banks analyses within cases, and thus some cases were counted more than once. When it was possible to identify a factor that seemed to control the outcome, either because the court so indicated, or because I felt comfortable making that determination based on the court’s analysis, I categorized the case accordingly.
A. Cases in Which a Prior Local Court Ruling or a Local Statute was Dominant
In twelve of the cases in which a Banks analysis was conducted, it appeared that the dominant factor was the first factor, which examines local courts’ rulings or a relevant local statute. Joseph v. Sugar Bay Club & Resort Corp.217 is an example of this kind of analysis. In that case, the court considered the elements of intentional infliction of emotional distress and found that “the general rule [found in the Restatement (Second) of Torts] has been adopted by virtually every Virgin Islands court to address intentional infliction of
214. 63 V.I. 772 (V.I. 2015). 215. Id. at 783 n.5. 216. Id. 217. No. ST-13-CV-491, 2014 WL 1133416 (V.I. Super. Ct. Mar. 17, 2014), rev’d in part, No. 2014-0048, 2015 WL 682117 (V.I. Feb. 17, 2015). 426 Stetson Law Review [Vol. 46 emotional distress.”218 After noting, in its analysis of the second element, that a majority of jurisdictions follow the same rule, the court’s analysis of the third element refers back to the first: “[C]onsidering the longstanding application of this construction of Intentional Infliction of Emotional Distress in Virgin Islands courts, the [c]ourt finds that the Restatement (Second) of Torts [section] 46 represents the soundest rule for the Virgin Islands, and is in accord with local public policy.”219 Thus, the first Banks element seems to influence the court’s holding most heavily.
B. Cases in Which the Majority Approach Was Dominant
In five of the cases in which a Banks analysis was conducted, the second factor—the approach taken by a majority of jurisdictions—seemed most influential. The case of Virgin Islands v. Velasquez220 provides an example of this kind of analysis. In that case, the court examined the judiciary’s authority to grant bail once detention has been determined.221 The court noted, in analyzing the first factor, the existence of a pre-Banks Virgin Islands Supreme Court decision in a case called Browne v. People.222 In analyzing the second factor, however, the court reasoned that continuing to follow Browne would place the Virgin Islands in the minority of jurisdictions.223 Because it identified several historical factors in its analysis of the third factor, supporting the majority rule as the best rule for the Virgin Islands, the superior court elected to follow the majority rule rather than Browne.224 Thus, although the court performed a full Banks analysis, the second factor seemed most important to the court.
218. Id. at *3. 219. Id. See also Bell v. Radcliffe, No. ST-13-CV-392, 2015 WL 5773561, at *5 (V.I. Super. Ct. Apr. 30, 2015) (prior decisions of Virgin Islands courts seemed most important to the court); Ronan v. Clarke, 63 V.I. 95, 100 (V.I. Super. Ct. 2015) (prior legislative act seemed to carry the day); Sickler v. Mandahl Bay Holding, Inc., No. ST-10-CV-331, 2014 WL 3107449, at *3 (V.I. Super. Ct. July 7, 2014) (Virgin Islands statute on public nuisance seemed to be the most influential factor). 220. 60 V.I. 22 (V.I. Super. Ct. 2014). 221. Id. at 24. 222. 50 V.I. 241 (V.I. 2008). 223. Velasquez, 60 V.I. at 31. 224. Id. at 39. 2017] Living with Banks 427
C. Cases in Which the Best Rule for the Virgin Islands Was Dominant
In thirty-seven cases in which a Banks analysis was conducted, the third element—the best rule for the Virgin Islands—seemed most influential. Notably, this is the element that the Supreme Court has identified as being most important. Some of these cases treated the third factor as almost a mathematical equation of the first and second elements—that is, if local courts had previously taken a certain position, and a majority of other jurisdictions had done the same, then that approach must be clearly best for the Virgin Islands. Other courts conducted a discrete, independent analysis of the third element. The Connor case can be read as supporting both approaches. Specifically, where the Connor opinion directs courts to “weigh all persuasive authority both within and outside the Virgin Islands,” this language seems to support what I have called the “mathematical” approach, while the language inviting courts to “determine the appropriate common law rule based on the unique characteristics and needs of the Virgin Islands” seems to support the discrete analysis of the third factor employed by other courts.225
1. The “Mathematical” Approach
Isaac v. Crichlow226 is an example of a case applying the “mathematical” approach. That case involved allegations of common law conversion, fraudulent misrepresentation, and civil conspiracy.227 With respect to the first and second causes of action, the court held that the respective Restatement (Second) of Torts rules on each had been widely adopted in both the courts of the Virgin Islands and a majority of other jurisdictions.228 With respect to the third, the court held that the Restatement rule had been adopted in a majority of jurisdictions and, while not yet cited in the Virgin Islands explicitly, was not inconsistent with the rule that Virgin Islands courts had articulated.229 The court
225. Gov’t of the V.I. v. Connor, 60 V.I. 597, 603 (V.I. 2014). 226. 63 V.I. 38 (V.I. Super. Ct. 2015). 227. Id. at 47. 228. Id. at 59–60. 229. Id. at 64. 428 Stetson Law Review [Vol. 46 held that, because the first and second elements both militated in favor of the Restatement rule, the Restatement rule was the best rule for the Virgin Islands.230 Thus, the court used evidence of a rule that has been widely adopted in the Virgin Islands, plus evidence that the same rule has been followed in a majority of jurisdictions, to support using that rule as the best rule for the Virgin Islands.
2. The Independent Approach
The courts that conducted a separate analysis of the third prong emphasized historical, economic, and policy considerations supporting the various alternatives being offered. Thomas v. Virgin Islands Board of Land Use Appeals231 provides an example of such an analysis. In that case, in considering the appropriate construction of a restrictive covenant, the court decided not to follow the Restatement (Third) of Property: Servitudes.232 In so holding, the court noted, in analyzing the first element, that rather than following the Restatement on this point, courts in the Virgin Islands “have strictly construed restrictive covenants in a manner that allowed property owners to use their land to its greatest benefit.”233 With respect to the second element, the court noted that many courts had followed the same approach as the Virgin Islands, employing the “historical common law preference for permitting the free use of land, and thus construing restrictive covenants narrowly.”234 With respect to the third element, the court began by noting that “[l]and in the Virgin Islands is a particularly valuable and scarce resource” and that the Legislature has created comprehensive zoning rules for its use.235 The court also held that it would be “highly disruptive” to adopt the Restatement rule, especially because so many covenants had been drafted during a time when covenants were strictly construed.236
230. Id. 231. 60 V.I. 579 (V.I. 2014). 232. Id. at 595. 233. Id. at 591. 234. Id. at 592. 235. Id. at 593. 236. Id. 2017] Living with Banks 429
In Malloy v. Reyes,237 likewise, the Supreme Court considered the unique history of the Virgin Islands in formulating a rule for abandonment of a public easement. In that case, because there was no local court analysis of the issue, the Court began by analyzing the second element. In so doing, the Court noted that “virtually every United States jurisdiction recognizes that ‘[o]nce a highway, always a highway’ is an ancient maxim of the common law.”238 The Court went on to analyze the third element. In holding that “[a]llowing the extinguishment of the public’s right to an easement through simple neglect would make little sense given that no other public property interest may be lost this way,” the Court considered the unique history of the Virgin Islands with respect to property law.239
[T]he last century has seen significant changes in the administration of the Territory—transitioning from a Danish colony to a U.S. territory, first under the administration of the Navy, then the Department of the Interior, then attaining greater local autonomy—providing countless opportunities for the loss of records and the neglect of certain governmental functions . . . . Such simple neglect should not prejudice Virgin Islanders’ right to the use of historically public rights-of-way that have existed for centuries.240
In Tutein v. Arteaga,241 the Court used the Legislature’s demonstrated intent to establish the best rule for the Virgin Islands. In that case, which involved the superior court’s authority to appoint a guardian ad litem, no local court had previously addressed the issue, so the Court began with the second element.242 After noting with respect to the second element that a majority of jurisdictions have permitted the court to appoint a guardian ad litem to investigate, report, and make recommendations to the court in a custody proceeding, the Court addressed the third element.243 With respect to the third element, the Court held that the legislature had made it clear that it expected Virgin Islands courts to resolve custody disputes
237. 61 V.I. 163 (V.I. 2014). 238. Id. at 176–77. 239. Id. at 178. 240. Id. at 179. 241. 60 V.I. 709 (V.I. 2014). 242. Id. at 716. 243. Id. at 718–19. 430 Stetson Law Review [Vol. 46 according to the best interests of the child, which, it held, mandated a finding that a guardian ad litem should be appointed.244 In Better Building Maintenance of the Virgin Islands, Inc. v. Lee,245 the Court’s analysis of the third element rested on its interpretation of the most logical result. That case involved the reduction of damages to present value.246 The Court ultimately adopted the approach the Third Circuit had used in federal tort actions which, it noted in its analysis of the first element, is the approach that the superior court and district court have consistently followed.247 In analyzing the second element, the Court found that federal appellate courts had been consistent, but that state courts were more closely divided.248 With respect to the third element, the Court held as follows:
In no other situation does the plaintiff have the burden of introducing evidence undermining her recovery; instead, when there is reason to reduce a plaintiff’s recovery—such as when she was comparatively negligent or failed to mitigate her damages—it is uniformly the defendant’s burden to raise the issue and support it with appropriate evidence.249
Thus, the Court held that the approach it selected was the more logical and reasonable one. Similarly, in Robbins v. Port of $ale, Inc.,250 the court decided to follow the rule from the Restatement (Second) and Restatement (Third) of Torts as to whether the limitations period for indemnity and contribution should be the same as those for the predicate tort.251 The court’s analysis of both the first and second elements militated against coterminous limitations periods, but it is its analysis of the third element that is most notable. The court held that to impose coterminous limitations periods would encourage “‘the injured party [to] foreclose a
244. Id. at 718. 245. 60 V.I. 740 (V.I. 2014). 246. Id. at 746–47. 247. Id. at 757. 248. Id. at 758. 249. Id. at 760. 250. 62 V.I. 151 (V.I. Super. Ct. 2015). 251. Id. at 156–57. 2017] Living with Banks 431 tortfeasor’s right to contribution [or indemnity] by waiting to bring his action until just before the statute of limitations period ran on his claim.’”252 Otherwise, the court held, “[R]esponsible persons who fear potential litigation [will be required] to preemptively file for indemnity or contribution [even] before the plaintiff in tort files a complaint.”253 Romano v. Virgin Islands Government Hospitals & Health Facilities Corp.254 provides one final example of a court’s basing its analysis of the third element on logic. In that case, in considering an action for a bill of discovery, the court held with respect to the first element that allowing such a bill was supported by dicta in a decision from the Appellate Division of the District Court, even though it had not otherwise been addressed.255 With respect to the second element, the court held that a majority of jurisdictions had held similarly to the district court, but that “practical application of a bill of discovery is particular to each jurisdiction.”256 In considering the third element, the court held that, in the context of a medical malpractice action in which a party does not have a remedy at law, allowing a bill of discovery is “‘in accordance with the broad principles of right and justice in cases where the restrictive technicalities of the law prevent the giving of relief.’”257 In this case, all three elements seem to have contributed equally to the court’s analysis, as the court held that all three factors weighed favorably in support of the adoption of a pure bill of discovery.
D. Cases in Which No Factor Predominated
There are certainly plenty of cases in which none of the three Banks factors is overtly dominant. Matthew v. Herman258 is an example of a case in which all three Banks elements point in the same direction, such that no one element seems to control the outcome. In that case, the Court considered the existence of a cause of action for the so-called “amatory torts” of alienation of
252. Id. at 157 (internal citation omitted). 253. Id. at 158. 254. 60 V.I. 168 (V.I. Super. Ct. 2014). 255. Id. at 176–77. 256. Id. at 177. 257. Id. at 178 (quoting Adventist Health Sys./Sunbelt, Inc. v. Hegwood, 569 So. 2d 1295, 1298 (Fla. 5th Dist. Ct. App. 1990)). 258. 56 V.I. 674 (V.I. 2012). 432 Stetson Law Review [Vol. 46 affection and criminal conversation.259 In deciding not to follow the Restatement (First) and Restatement (Second) of Torts on this point, the Court found, in analyzing the first element, that these torts had never been cited to or used by any Virgin Islands court.260 In considering the second element, the Court found that these torts had been abolished in the vast majority of American jurisdictions.261 In analyzing the third element, the Court noted that these torts (1) were founded on the outdated idea that wives were the property of their husbands, (2) are destructive to marriage, and (3) do not adequately value or address the harms caused by adulterous behavior.262 This case is notable for the way in which each factor is analyzed fully and independently, even though all ultimately support the same result.
E. Cases in Which the Banks Analysis Was Incomplete
Sometimes, a court omits one or more elements from its Banks analysis. For example, in Joseph v. Daily News Publishing Co., Inc.,263 when the Court was considering the basic elements of a defamation claim, it gave an independent analysis of only the first factor. The Court noted a 2011 Supreme Court case, Kendall v. Daily News Publishing Co.,264 which had addressed this issue; thus, the Court used the existence of that case, which followed the Restatement (Second) of Torts, to establish the third element.265 The second element was not addressed. Jung v. Ruiz266 and Slack v. Slack267 are two additional cases in which the second element was not addressed.
X. CONCLUSION
Because the Restatements remain influential in the Virgin Islands in ways that generally mirror the influence that they have had elsewhere in the United States, it is important to follow
259. Id. at 682. 260. Id. 261. Id. 262. Id. at 683. 263. 57 V.I. 566 (V.I. 2012). 264. 55 V.I. 781 (V.I. 2011). 265. Joseph, 57 V.I. at 587–90. 266. 59 V.I. 1050, 1058 n.4 (V.I. 2013). 267. 62 V.I. 366 (V.I. Super. Ct. 2015). 2017] Living with Banks 433 the Virgin Islands Supreme Court’s guidance with respect to how the Restatements are to be used in the post-Banks era, so that the analysis is not muddied. Specifically, the continued post- Banks utility and influence of the Restatements as persuasive authority must not be confused with the force of law they had, prior to Banks, in matters of first impression. It is also important that litigants and courts applying Virgin Islands law differentiate among the ALI’s various products in ways that reflect their differing missions and purposes. Effective advocacy in the post-Banks era begins with the parties fully briefing the issues and identifying issues of first impression. It also requires the courts and the parties to have a firm grasp of what constitutes binding authority, so as to be certain whether the matter requires a Banks analysis. When a Banks analysis is indicated, lower courts should go ahead and perform the analysis rather than waiting for the Supreme Court to do so. In determining whether a Banks analysis is needed, courts and litigants should distinguish between matters controlled by statute, those controlled by common law, and those controlled by a statute based on common law. Courts need not follow the Banks analysis of another court at the same level, pre-Banks Supreme Court opinions, or decisions that do not constitute binding authority. Prior use of one section of a Restatement cannot, without further analysis, justify application of another section. Although a Banks analysis is not always conducted with respect to matters deemed well-established by law, the better practice is to do so, since neither Banks nor its progeny have established an exception along these lines. With respect to the analysis itself, Banks is sufficiently multifaceted—as are the cases decided under Banks—that no single factor should control the outcome in every case. In considering the third factor, although the Connor case seems to provide support for the “mathematical” approach as well as for an independent analysis of the third factor, I would argue in favor of the independent approach. Taking into consideration the particular historical and economic circumstances as well as the most logical result allows a court to fashion a decision that truly is “the best rule for the Virgin Islands.” I believe there is no question that Banks has improved the jurisprudence of the Virgin Islands and that the first five years of 434 Stetson Law Review [Vol. 46
Banks jurisprudence have borne this impression out. The next five years should bring more clarity and consistency in the caselaw now that the Banks decision can be considered to have reached maturity, and its meaning and significance have become clear. 2017] Living with Banks 435
APPENDIX A
Cases in which a Restatement rule was considered, but rejected
Case Restatement Rejected Virgin Islands Superior Court Sickler v. Mandahl Bay Holding Inc., Restatement (Second) ST-10-CV-331, 2014 WL 3107449 (V.I. Super. Ct. July 7, of Torts 2014) Virgin Islands Supreme Court Cacciamani and Rover Corp. v. Banco Pop. De Puerto Rico, Restatement (Third) of 61 V.I. 247 (V.I. 2014) Restitution and Unjust Enrichment Machado v. Yacht Haven U.S.V.I., LLC, Restatement (Second) 61 V.I. 373 (V.I. 2014) of Torts Matthew v. Herman, Restatement (Second) 56 V.I. 674 (V.I. 2012) of Torts Thomas v. Virgin Islands Bd. of Land Use Appeals, Restatement (Third) of 60 V.I. 579 (V.I. 2014) Property: Servitudes Walters v. Walters, Restatement (Third) of 60 V.I. 768 (V.I. 2014) Restitution and Unjust Enrichment 436 Stetson Law Review [Vol. 46
APPENDIX B
Cases in which a Restatement rule was clearly accepted
Case Restatement Accepted District Court of the Virgin Islands Baptiste v. Rohn, Restatement (Third) of CV 2013-0104, 2016 WL 1261072 (D.V.I. Mar. 29, 2016) the Law Governing Lawyers Bd. of Directors of Sapphire Bay Condominiums W. v. Restatement (Third) of Simpson, Unfair Competition CV 04-62, 2014 WL 4067175 (D.V.I. Aug. 13, 2014) aff’d sub nom. Bd. of Directors of Sapphire Bay Condominiums W. v. Simpson, 14-3922, 2015 WL 9267712 (3d Cir. Dec. 21, 2015) Illaraza v. HOVENSA LLC, Restatement (Second) 73 F. Supp. 3d 588 (D.V.I. 2014) of Agency In re Prosser, 06-30009 (JFK), Restatement (Second) 2013 WL 5422881 (D.V.I. Sept. 27, 2013) of Conflict of Laws MRL Dev. I, LLC v. Whitecap Inv. Corp., Restatement (Second) CV 2013-48, 2014 WL 793132 (D.V.I. Feb. 26, 2014) of Contracts Smith v. Katz, Restatement (Third) of CV 2010-39, 2013 WL 1182074 (D.V.I. Mar. 22, 2013) Torts Thomas v. Roberson, Restatement (Third) of CV 2008-075, 2013 WL 2402946 (D.V.I. June 3, 2013) Agency Virgin Islands Superior Court Abdallah v. Abdel-Rahman, Restatement (Second) No. ST-13-CV-227, slip op. (V.I. Super. Ct. Mar. 4, 2015) of Contracts Alleyne v. Diageo USVI, Inc., Restatement (Second) SX-13-CV-143, 2015 WL 5511688 (V.I. Super. Ct. Sept. 17, of Torts 2015) Banco Popular de Puerto Rico v. Palms Court Harborview, Restatement (Second) No. ST-11-CV-375, slip op. (V.I. Super. Ct. June 27, 2014) of Torts Bank of Nova Scotia v. Herman, Restatement (Second) ST-10-CV-270, 2016 WL 3007489 (V.I. Super. Ct. May 13, of Contracts 2016) 2017] Living with Banks 437
Bell v. Radcliffe, Restatement (Second) ST-13-CV-392, 2015 WL 5773561 (V.I. Super. Ct. Apr. 30, of Torts 2015) Berry v. Performance Constr., Restatement (Second) No. ST-13-CV-524, slip op. (V.I. Super. Ct. Mar. 4, 2015) of Contracts Bertrand v. Cordiner Enter., Inc., Restatement (Second) CV ST-08-CV-457, 2013 WL 6122388 (V.I. Super. Ct. Nov. and Restatement 15, 2013) rev’d sub nom. Bertrand v. Mystic Granite & Marble, (Third) of Torts Inc., S.CT.CIV. 2013-0130, 2015 WL 6470866 (V.I. Oct. 27, 2015) Carlos Warehouse v. Thomas, Restatement (First) of SX-13-SM-448, 2016 WL 2865948 (V.I. Super. Ct. May 12, Restitution 2016) Christopher v. Skinner, Restatement (First) of ST-13-CV-575, slip op. (V.I. Super. Ct. Sept. 26, 2014) Property Cintron v. Polston, Restatement (Second) 62 V.I. 144 (V.I. Super. Ct. 2015) of Agency Creative Minds, LLC v. Reef Broad., Inc., Restatement (Second) ST-11-CV-131, 2014 WL 4908588 (V.I. Super. Ct. Sept. 24, of Contracts 2014) Davis v. Hovensa, LLC, Restatement (Third) of SX-02-CV-333, 2015 WL 6769095 (V.I. Super. Ct. Oct. 28, Torts 2015) Edwards v. Marriott Hotel Mgmt. Co. (Virgin Islands), Inc., Restatement (Second) ST-14-CV-222, 2015 WL 476216 (V.I. Super. Ct. Jan. 29, of Torts 2015) Faulknor v. Virgin Islands, Restatement (Second) 60 V.I. 65 (V.I. Super. Ct. 2014) of Torts FirstBank Puerto Rico v. Webster, Restatement (Second) ST-12-CV-239, 2014 WL 985144 (V.I. Super. Ct. Mar. 7, of Contracts 2014) reconsideration granted, order vacated in part, ST-12-CV- 239, 2014 WL 3592093 (V.I. Super. Ct. July 16, 2014) Freund v. Liburd, Restatement (Third) of ST-11-CV-730, 2016 WL 3752986 (V.I. Super. Ct. July 7, Suretyship and 2016) Guaranty Gourmet Gallery Crown Bay, Inc. v. Crown Bay Marina, Restatement (Second) L.P., of Contracts ST-2014-CV-513, 2015 WL 9031220 (V.I. Super. Ct. Nov. 10, 2015) 438 Stetson Law Review [Vol. 46
Guardian Ins. Co. v. Est. of Knight-David, Restatement (Second) No. ST-08-CV-189, slip op. (V.I. Super. Ct. Mar. 4, 2015) of Torts Hodge v. V.I. Tel. Corp., Restatement (Second) 60 V.I. 105 (V.I. Super. Ct. 2014) of Torts Huggins v. Chungani, Restatement (Second) ST-14-CV-115, 2014 WL 4662323 (V.I. Super. Ct. Sept. 18, of Torts 2014) Isaac v. Crichlow, Restatement (Second) SX-12-CV-065, 2015 WL 10568556 (V.I. Super. Ct. Feb. 10, of Torts 2015) Jacobs v. Roberts, Restatement (Third) of ST-14-CV-193, 2015 WL 3406561 (V.I. Super. Ct. May 21, Torts 2015) Joseph v. Sugar Bay Club & Resort Corp., Restatement (Second) ST-13-CV-491, 2014 WL 1133416 (V.I. Super. Ct. Mar. 17, of Torts 2014) rev’d in part, S.CT.CIV. 2014-0048, 2015 WL 682117 (V.I. Feb. 17, 2015) Lembach v. Antilles Sch., Inc., Restatement (Second) ST-12-CV-613, 2015 WL 920631 (V.I. Super. Ct. Feb. 25, of Torts 2015) Marian v. Fraser, Restatement (Second) ST-13-CV-549, 2014 WL 1239492 (V.I. Super. Ct. Mar. 17, of Torts 2014) Nicholas v. Damian-Rojas, Restatement (Second) 62 V.I. 123 (V.I. Super. Ct. 2015) of Agency Paul v. Abramson Enterprises, Inc., Restatement (Second) SX-05-CV-0000132, 2016 WL 3105037 (V.I. Super. Ct. June of Agency 1, 2016). Pickering v. Arcos Dorados Puerto Rico, Inc., Restatement (Second) ST-2015-CV-313, 2015 WL 6957082 (V.I. Super. Ct. Nov. 9, of Torts 2015) Police Benevolent Assoc. v. Brooks, Restatement (Second) No. ST-12-CV-123, slip op. (V.I. Super. Ct. Mar. 4, 2015) of Torts Powell v. Chi-Co’s Distrib., Inc., Restatement (Second) ST-13-TOR-14, 2014 WL 1394183 (V.I. Super. Ct. Apr. 3, of Torts 2014) Robbins v. Port of $ale, Inc., Restatement (Second) 62 V.I. 151 (V.I. Super. Ct. 2015) and Restatement (Third) of Torts 2017] Living with Banks 439
Roebuck v. V.I. Hous. Auth., Restatement (Second) 60 V.I. 137 (V.I. Super. Ct. 2014) of Contracts Tutein v. Ford Motor Co., Restatement (Third) of SX-10-CV-18, 2016 WL 3186481 (V.I. Super. Ct. Mar. 18, Torts 2016) VI 4D, LLLP v. Crucians in Focus, Inc., Restatement (Second) No. ST-12-CV-376, slip op. (V.I. Super. Ct. July 25, 2014) of Torts V.I. Port Auth. v. Callwood, Restatement (Second) ST-11-CV-305, 2014 WL 905816 (V.I. Super. Ct. Feb. 28, of Torts 2014) V.I. Taxi Ass’n. v. V.I. Port Auth., Restatement (Second) CV ST-97-CV-117, 2013 WL 4027454 (V.I. Super. Ct. Aug. of Contracts 1, 2013) Walker v. V.I. Waste Mgmt. Auth., Restatement (Second) 62 V.I. 53 (V.I. Super. Ct. 2014) of Agency Virgin Islands Supreme Court Burd v. Antilles Yachting Servs., Inc., Restatement (Second) 57 V.I. 354 (V.I. 2012) of Contracts Chapman v. Cornwall, Restatement (Second) 58 V.I. 431 (V.I. 2013) of Contracts Coastal Air Transport v. Royer, Restatement (Second) 64 V.I. 645 (V.I. 2016) of Torts Joseph v. Daily News Publ’g Co., Inc., Restatement (Second) 57 V.I. 566 (V.I. 2012) of Torts Maso v. Morales, Restatement (Second) 57 V.I. 672 (V.I. 2012) of Torts Palisoc v. Poblete, Restatement (Second) 60 V.I. 607 (V.I. 2014) of Torts Pollara v. Chateau St. Croix, LLC, Restatement (Second) 58 V.I. 455 (V.I. 2013) of Contracts Ross v. Hodge, Restatement (Second) 58 V.I. 292 (V.I. 2013) of Contracts Simon v. Joseph, Restatement (Third) of 59 V.I. 611 (V.I. 2013) the Law Governing Lawyers
TROUBLE IN PARADISE? EXAMINING THE JURISDICTIONAL AND PRECEDENTIAL RELATIONSHIPS AFFECTING THE VIRGIN ISLANDS JUDICIARY
Katy Womble and Courtney Cox Hatcher*
I. INTRODUCTION
“One repays a teacher badly if one always remains nothing but a pupil.”1
The rich history of the United States Virgin Islands2 includes Danish and American ownership3 with influences from many lands.4 The Virgin Islands’ legal history, particularly the
* © 2017, Katy Womble. All rights reserved. J.D., Stetson University College of Law, 2016; B.A., History, University of Texas, 2013. Notes and Comments Editor, Stetson Law Review. © 2017, Courtney Cox Hatcher. All rights reserved. J.D., Stetson University College of Law, 2016; B.A., English Literature, University of Central Florida, 2011. Notes and Comments Editor, Stetson Law Review. We would both like to thank Professor Kristen David Adams for all her help with this Article. Without her, its publication would not be possible. 1. FRIEDRICH NIETZSCHE,THUS SPOKE ZARATHUSTRA:ABOOK FOR ALL AND NONE 78 (WALTER KAUFMANN TRANS., 1954). 2. The scope of this Article is limited to the territory known specifically as the United States Virgin Islands. However, there exists another set of islands to the east of the United States Virgin Islands, known as the British Virgin Islands, which are part of the British Commonwealth. World Atlas, British Virgin Islands, WORLDATLAS.COM, http://www.worldatlas.com/webimage/countrys/namerica/caribb/vg.htm (last visited Feb. 28, 2017); Bernard C. Pattie, Legal System in the United States Virgin Islands, NEW.ONEPAPER.COM, http://new.onepaper.com/vibarherald/?v=d&i=&s=Bar+Info:Law+ Review+%26+Articles&p=48799 (last visited Feb. 28, 2017). Within this Article, the United States Virgin Islands will be referred to as the Virgin Islands or VI. 3. The Library of Congress, U.S. Took Ownership of the Virgin Islands, AMERICASLIBRARY.GOV, http://www.americaslibrary.gov/jb/jazz/jb_jazz_virgin_1.html (last visited Feb. 28, 2017). 4. See PROJECT INTROSPECTION – VI DEP’T OF EDUCATION,EUROPEAN AND AFRICAN INFLUENCES ON THE CULTURE OF THE VIRGIN ISLANDS (1973), available at http://webpac .uvi.edu/imls/pi_uvi/european_african_influences_culture.pdf (describing the cultural influences on the West Indies, including influences on language, religion, beliefs and superstitions, folklore, dance, and food). For instance, the West Indies, which historically included the Virgin Islands, “is a mixture of African, Asian, European, and American patterns.” Id. at 1. 442 Stetson Law Review [Vol. 46 establishment of its courts and the structure of its court system, has transitioned throughout the years and continues to evolve. With its origins in the civil law system,5 the Virgin Islands’ change to a common law system, which began in the early 1900s,6 has not been without difficulties. In addition to the challenges associated with changing from a civil law system to a common law system, there have also been complications surrounding the jurisdiction between the several courts overseeing the Virgin Islands’ judicial system. The most notable difficulty has been the struggle for jurisdiction between the United States Court of Appeals for the Third Circuit and the newly created Virgin Islands Supreme Court;7 the Virgin Islands Supreme Court and the established Superior Court of the Virgin Islands;8 and the Superior Court of the Virgin Islands and the District Court of the Virgin Islands.9 Given territories’ unique nature—sharing in some of the benefits of nationhood while being denied others10—legal struggles have become commonplace.11 For instance, there has been much debate between territories and the United States regarding the interpretation and application of the Territorial Clause.12 In a case concerning the Northern Mariana Islands, the
5. Pattie, supra note 2. These civil law origins are discussed in more detail in Part II. 6. This transition began in 1917 with the Third Circuit’s jurisdiction over the Virgin Islands. See Federal Judicial Center, infra note 42 (providing the historical timeline of the Third Circuit). 7. See infra Part IV(B)(1) (detailing the jurisdiction between the Third Circuit and the Virgin Islands Supreme Court). 8. See infra Part IV(B)(2) (describing the jurisdiction between the Virgin Islands Supreme Court and the Superior Court of the Virgin Islands). 9. See infra Part IV(B)(3) (outlining the jurisdiction between the Superior Court of the Virgin Islands and the District Court of the Virgin Islands). 10. See Jon M. Van Dyke, The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands, 14 U. HAW. L. REV. 445, 468–71 (1992) (outlining the benefits, such as the extension of most constitutional rights, and the drawbacks, such as a lack of complete autonomy, that affect territories and their residents). 11. The United States currently possesses fourteen territories: American Samoa, Baker Island, Guam, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Northern Mariana Islands, Palmyra Atoll, Puerto Rico, Wake Island, and the Virgin Islands. United States Department of State, Dependencies and Areas of Special Sovereignty, U.S. DEP’T OF STATE (Nov. 29, 2011), http://www.state .gov/s/inr/rls/10543.htm. 12. U.S. CONST. art. IV, § 3, cl. 2. The Territorial Clause reads, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Id. 2017] Trouble in Paradise? 443 court reinforced the Territorial Clause’s application to the Northern Mariana Islands while also stating that the Covenant13 between the United States and the territory “define[s] the boundaries” of the relationship.14 The applicability of the Territorial Clause was questioned again in another case. The court reiterated that the Commonwealth of Puerto Rico was still subject to the Territorial Clause, even though it was granted the right of local self-government by Congress.15 Cases like these— contesting power and authority over the territories—abound,16 and the Virgin Islands are no exception.17 Presumably, such controversies arise because of the territories’ unique position within the governmental and legal landscape: not states, yet not completely without autonomy.18 This Article covers the early history of the Virgin Islands courts in Part II, beginning with the United States’ purchase of the island group from Denmark. It then discusses, in Part III, the more recent history of the Virgin Islands courts, starting with the
13. The Covenant is a ten-article document that “define[s] the political relationship between the [Northern Mariana Islands] and the United States.” Northern Mariana Islands v. Atalig, 723 F.2d 682, 685 (9th Cir. 1984). 14. United States ex rel. Richards v. Leon Guerrero, 4 F.3d 749, 754 (9th Cir. 1993). This case concerned the administration of a federal audit of the Northern Mariana Islands. Id. at 750–51. 15. United States v. Sánchez, 992 F.2d 1143, 1152–53 (11th Cir. 1993). This case concerned the effect of the dual sovereignty doctrine on applying the double jeopardy clause. Id. at 1149. Interestingly, this issue was recently decided by the Supreme Court of the United States. See Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863, 1868 (2016) (holding that the United States and Puerto Rico cannot both prosecute a defendant for the same crime “because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil”). 16. Report to the Chairman, Committee on Resources, House of Representatives: U.S. Insular Areas–Application of U.S. Constitution, GAO/OGC-98-5 7 (Nov. 1997), available at http://www.gao.gov/archive/1998/og98005.pdf. Many of the cases contesting the territories’ power, specifically the extent to which the United States Constitution and the United States Congress control the territories’ actions and abilities, arose during the 1990s. See id. (stating that “[s]everal court decisions during the last 6 years [for a report published in 1997] have addressed the applicability of constitutional provisions to individual insular areas”). 17. See infra Part IV (describing the contests for jurisdictional authority between the Third Circuit and the Virgin Islands courts). 18. The mostly patchwork, and sometimes haphazard, mention of territorial application in many federal laws does not ease any issues. An example of this is the implementation of the Affordable Care Act in the territories. Jason Millman, The Administration Just Took Obamacare Away from the Territories,WASH.POST (July 17, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/07/17/the-administration- just-took-obamacare-away-from-the-territories/. Because of the inconsistent mention of the territories within the Act, insurers must “comply with the law’s major market reforms,” but residents are not required “to get coverage” and “subsidies [are not provided] to help [residents] afford coverage.” Id. 444 Stetson Law Review [Vol. 46 establishment of the Virgin Islands Supreme Court in 2004. Part IV continues by examining the interplaying binary relationships between the courts, including the District Court, Superior Court, Virgin Islands Supreme Court, and the Third Circuit. The Article concludes by highlighting trends and observations in recent caselaw and recommending possible solutions for overcoming the unresolved issues within the Virgin Islands judicial relationships.
II. THE EARLY HISTORY OF THE VIRGIN ISLANDS COURTS (1917–2004)
The Virgin Islands has been occupied or inhabited by the Arawaks, Caribs, Spaniards, Danish, Africans, and British.19 However, in 1916, the United States acquired the Virgin Islands from Denmark,20 although the land was not formally transferred until March 31, 1917.21 This acquisition was the catalyst to a judicial transformation in the Virgin Islands. The convention between Denmark and the United States, proclaimed by President Woodrow Wilson on January 25, 1917,22 made no mention of the form and function of the Virgin Islands judicial system.23 However, within two months of the proclamation, the Act of March 3, 1917,24 was passed. This Act stated, in section II, that:
19. Luther Harris Evans, Virgin Islands: Islands, Caribbean Sea,BRITANNICA.COM, http://www.britannica.com/place/Virgin-Islands (last updated Oct. 22, 2009). 20. United States Department of State, Purchase of the United States Virgin Islands, 1917, U.S. DEP’T OF STATE, http://2001-2009.state.gov/r/pa/ho/time/wwi/107293.htm (last visited Feb. 28, 2017) [hereinafter Department of State]. The Danish occupied the U.S. Virgin Islands from 1666–1801, 1803–1807, and 1815–1917. Evans, supra note 19. 21. Department of State, supra note 20. The United States paid twenty-five million dollars in gold coins for the Virgin Islands. Id. 22. Convention Between the United States and Denmark, Etc., U.S.-Denmark, Aug. 4, 1916, 39 Stat. 1706, available at https://www.doi.gov/sites/doi.gov/files/migrated/oia/ about/upload/vitreaty.pdf. 23. Id. (covering the cession of land and property, military control, telephone operations, bank operations, payment for the territory, effect of convention on Danish citizens, pending judicial proceedings, and copyright); see also Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1053 (3d Cir. 1982) (“The convention between the United States and Denmark proclaimed by the President on January 25, 1917 did not address the issue of the judicial system to be in effect in the Virgin Islands.”). It is also interesting to note that full U.S. citizenship rights were not bestowed upon those born in the Virgin Islands until 1932. Department of State, supra note 20. 24. Pub. L. No. 64-389, 39 Stat. 1132 (codified as 48 U.S.C. §§ 1391–1396; § 1391 repealed 1966). 2017] Trouble in Paradise? 445
[U]ntil Congress shall otherwise provide, . . . local laws [in effect at the time of proclamation of the Convention] shall remain in force and effect in said islands, and the same shall be administered by the civil officials and through the local judicial tribunals established in said islands . . . . The jurisdiction of the judicial tribunals of said islands shall extend to all judicial proceedings and controversies in said islands to which the United States or any citizen thereof may be a party.25
This Act remedied the gap in the convention, making it clear that local law and local tribunals continued to govern the Virgin Islands. The current political structure of the Virgin Islands includes an elected governor and lieutenant governor,26 a unicameral legislature comprised of a Senate,27 and a court system.28 The Virgin Islands also has an elected delegate to Congress with limited voting power,29 has an appointed U.S. attorney,30 and is a separate United States custom zone.31 Additionally, there are currently four political parties in the Virgin Islands: the Virgin Islands Democratic Party, the Green Party of the U.S. Virgin Islands, the Independent Citizens’ Movement, and the Republican Party of the U.S. Virgin Islands.32 While these
25. Id. § 2, 39 Stat. at 1132–33. 26. Revised Organic Act, infra note 57, at § 11. The governor appoints all executive branch positions. United States Department of Justice, infra note 31. 27. Revised Organic Act, infra note 57, at § 5(a)–(b). 28. Revised Organic Act, infra note 57, at § 21. 29. 48 U.S.C. § 1711 (2012); GovTrack, Virgin Islands Senators, Representatives, and Congressional District Maps, GOVTRACK.US, https://www.govtrack.us/congress/members/VI (last visited Feb. 28, 2017). The current delegate is Stacey Plaskett. United States House of Representatives, United States Congressman Stacey Plaskett Representing United States Virgin Islands, PLASKETT.HOUSE.GOV, https://plaskett.house.gov (last visited Feb. 28, 2017). 30. Revised Organic Act, infra note 57, at § 27. 31. United States Department of Justice, About the District: USAO-VI, U.S. DEP’T OF JUSTICE (June 23, 2015), http://www.justice.gov/usao-vi/about-district (stating that “[t]he district contains separate customs zones”); see 19 U.S.C. § 1401(h) (1980) (stating that, in reference to the rest of the Tariff Act of 1930 that discusses tariffs and customs, “[t]he term ‘United States’ includes all Territories and possessions of the United States except the Virgin Islands. . . .”). Being recognized as a separate customs zone means that the Virgin Islands can tax goods coming from the United States. U.S. Virgin Islands, Other USVI Taxes, USVI.NET, http://www.usvi.net/information/business-opportunities- corporations-taxes-tax-incentives-and-tax-planning-in-the-u-s-virgin-islands/other-usvi- taxes/ (last visited Feb. 28, 2017). 32. Ron Gunzburger, U.S. Virgin Islands, POLITICS1.COM, http://www.politics1.com/ vi.htm (last updated Jan. 3, 2017). 446 Stetson Law Review [Vol. 46 arrangements signal that the Virgin Islands has been granted some autonomy, the Inspector General of the United States Department of the Interior still controls and oversees government functions.33
A. The Beginning of the Virgin Islands Legal System
The Virgin Islands legal system was modeled on the European civil law system—a reflection of its previous Danish ownership.34 The characteristic feature of civil law systems is their reliance on civil codes;35 many European countries have a civil code and nearly every Central and South American country utilizes a civil code.36 The codes seek to provide “a comprehensive, authoritative collection of rules covering all the principal subjects of law,” while also maintaining a system that is broad and general enough to encompass any necessary adaptations and remain relevant for any set of facts.37 Notably, in comparison to the common law system of stare decisis,38 civil law judges are not bound by prior decisions.39 Because stare decisis does not apply and the code is authoritative, civil law judges deductively approach cases and controversies, moving from general principles—found in the civil code—to a specific resolution by applying those general principles to the facts of each case or
33. Revised Organic Act, infra note 57, at § 17. 34. Pattie, supra note 2. Civil law systems may be defined “as those that accepted Justinian’s Corpus Juris Civilis in whole or in part as law of the land or as directly highly persuasive. . . .” RUDOLF B. SCHLESINGER ET AL., COMPARATIVE LAW:CASES-TEXT- MATERIALS 13 (6th ed. 1998). Modern civil-law systems, though, are based heavily on the French civil code (also known as Code civil français). G. ALAN TARR,JUDICIAL PROCESS AND JUDICIAL POLICYMAKING 7 (6th ed. 2013). 35. SCHLESINGER ET AL., supra note 34, at 13. 36. JOHN HENRY MERRYMAN &ROGELIO PÉREZ-PERDOMO,THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF EUROPE AND LATIN AMERICA 2–3 (3d ed. 2007). There are numerous civil law influences in the United States, which are particularly apparent in Louisiana and Puerto Rico. SCHLESINGER ET AL., supra note 34, at 15–17. 37. FRANK A. SCHUBERT,INTRODUCTION TO LAW AND THE LEGAL SYSTEM 216 (7th ed. 2000). 38. MELVIN ARON EISENBERG,THE NATURE OF THE COMMON LAW 47 (1988) (noting in its discussion of common law models that stare decisis is an “institutional principle”). The doctrine of stare decisis states that, “[W]hen a question of law has once been settled by a judicial decision, [that decision] forms a precedent [that] is not afterward to be departed from or lightly overruled, even though it may seem archaic.” 79 A.L.R.2d 1126 (1961) (footnote omitted). 39. DOV M. GABBY ET AL., APPROACHES TO LEGAL RATIONALITY 179 (2010). 2017] Trouble in Paradise? 447 controversy.40 Ideally, this syllogistic method allows for flexibility and adaptation by avoiding precedential decisions and applying deductive logic, but avoids arbitrary results by the same mechanism.41 While the Virgin Islands legal system started as a civil law system, it began to shift in the early 1900s. In 1917, the Virgin Islands became part of the Third Circuit.42 In 1921, the codes of St. Thomas, St. John, and St. Croix established the police courts.43 In the 1921 Municipal Code, it was stated that “[t]he common law of England as adopted and understood in the United States shall be in force in this District, except as modified by this [code].”44 Then, with the 1957 passage of the Virgin Islands Code Title 1, Section 4,45 the Virgin Islands adopted the Restatements as its de facto common law whenever there was an absence of local law addressing the issue.46 This effectively allocated judicial power to the American Law Institute.47 Such reliance on the
40. James G. Apple & Robert P. Deyling, A Primer on the Civil-Law System (selected excerpts) 2 (1995), available at http://www.fjc.gov/public/pdf.nsf/lookup/Intl0640.pdf/ $file/Intl0640.pdf. 41. See id. (describing the process by which civil law judges come to legal conclusions). 42. Federal Judicial Center, History of the Federal Judiciary,FED.JUD.CENTER, http://www.fjc.gov/history/home.nsf/page/courts_coa_circuit_03.html (last visited Feb. 28, 2017). See also Michael Hinkelman, How the Virgin Islands and Philly Ended Up in Same Circuit, ARTICLES.PHILLY.COM (Jan. 17, 2011) (on file with Stetson Law Review) (outlining one theory as to how the Third Circuit came to preside over the Virgin Islands). It is odd, geographically speaking, that the Third Circuit, located in Philadelphia, Pennsylvania, supervised the Virgin Islands courts. The likely theory behind this includes the influence of a Delaware senator, according to one law professor. Id. For more information on this theory, see Robert M. Jarvis, “A Peculiar Niche”: Admiralty Law in the United States Virgin Islands, 26 J. MAR. L. & COM. 157 (1995). 43. Superior Court of the Virgin Islands, infra note 72. 44. Title IV, ch. 13, § 6, of the 1921 Codes for Municipality of St. Thomas and St. John and Municipality of St. Croix. 45. 1 V.I. CODE ANN. § 4 (2014) (repealed 2004). The statute states that: The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary. Id. For more discussion on the use of the Restatement as common law in the Virgin Islands, see Kristen David Adams, The Folly of Uniformity? Lessons from the Restatement Movement, 33 HOFSTRA L. REV. 423 (2004). 46. Adams, supra note 45, at 429. 47. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 980 (V.I. 2011). 448 Stetson Law Review [Vol. 46
Restatements, even today, is rare48 because the Restatements are model laws, known for their persuasive authority.49 When the Virgin Islands Supreme Court began exercising its appellate jurisdiction in 2007, this “blind reliance” on the Restatements was no longer justifiable.50 Instead, the Virgin Islands Supreme Court clarified that “the [Virgin Islands] Legislature did not intend for section 4 of title 1 [of the Virgin Islands Code] to compel this Court to mechanically apply the most recent Restatement.”51 Now, when local law is silent on an issue, the courts may deviate from the Restatements altogether, rely on prior versions of the Restatements,52 or use the Restatements as persuasive authority, rather than binding authority, when local law is silent on an issue.53 The Virgin Islands legal system changed tremendously within the first few decades of its transition to a common law system. While the previously discussed codes undoubtedly played a key role in that transformation, the Organic Acts of the Virgin Islands ushered in further changes—among all three branches of Virgin Islands government and for the Virgin Islands’ residents.
B. The Organic Acts of the Virgin Islands
In 1936, the Organic Act of the Virgin Islands (the 1936 Act) was enacted.54 Where there were previously three subjudicial district courts created under the judicial codes of 1920 and 1921, the 1936 Act consolidated the courts into a single court with two divisions: one for the St. Croix municipality and one for the St. Thomas/St. John municipality.55 Importantly, the United States Bill of Rights was extended to Virgin Islands residents under the
48. Adams, supra note 45, at 425 (“The Virgin Islands are one of only two jurisdictions (the other being the Commonwealth of the Northern Mariana Islands) in which the Restatements have been adopted as de facto common law, by statute.” (footnote omitted)). 49. Id. at 426. 50. Id. 51. Banks, 55 V.I. at 976 (addressing whether local laws included precedent from the Virgin Islands Supreme Court and whether section 4 of the Virgin Islands Code precluded the Court from deviating from the most recent Restatement). 52. Id. at 976–77. 53. Gov’t of the V.I. v. Connor, 60 V.I. 597, 600 (V.I. 2014). 54. 48 U.S.C. §§ 1391–1409 (1936), repealed by Pub. L. No. 89-554, § 8(a), 80 Stat. 643. 55. 48 U.S.C. § 1405a; 2 GRAEME R. NEWMAN,JANET P. STAMATEL &HUNG-EN SUNG, CRIME AND PUNISHMENT AROUND THE WORLD 340 (2010). 2017] Trouble in Paradise? 449
1936 Act.56 However, the 1936 Act was deemed inefficient and “unnecessarily cumbersome,”57 and after nearly two decades it was clear that it needed an overhaul. That overhaul came in 1954 when the 1936 Act was revised and amended,58 with Congress’ passing of the Revised Organic Act (the Revised Act).59 Generally, the Revised Organic Act restructured all three branches of the Virgin Islands government60 by “abolishing the two existing municipalities with [its] separate municipal councils and joint legislative assembly.”61 It also delegated the handling of local laws to the secretary of the Department of the Interior and proclaimed that the Revised Act would serve as the constitution for the Virgin Islands, titled as the Virgin Islands Code.62 While the Revised Act does serve as the Virgin Islands constitution, the Virgin Islands legislature may amend the Virgin Islands Code without congressional support or involvement.63
56. Id. While it is clear that the Revised Organic Act “expresses congressional intent to make the federal Constitution applicable to the Virgin Islands to the fullest extent possible,” solely “the most fundamental constitutional rights extend.” Revised Organic Act, infra note 57, at § 3, ann. 1. For example, the Eleventh Amendment was excluded. Id. 57. Revised Organic Act of 1954, July 22, 1954, ch. 558, § 1, 68 Stat. 497, ann. 1, available at https://www.doi.gov/sites/doi.gov/files/migrated/oia/about/upload/ RevOrganicAct_1954.pdf [hereinafter Revised Organic Act]. 58. The Revised Organic Act repealed the Organic Act, concerning 1936 Act provisions that were “inconsistent with provisions of the Revised Organic Act.” Id. § 1, ann. 2. According to a Senate Report from the Committee on Energy and Natural Resources, “[t]he 1936 statute was generally thought to have been repealed by the enactment of the Revised Organic Act of 1954.” S. Rep. 109-236 (Apr. 20, 2006) (discussing a bill, recommended for passage, for the repeal of a certain property tax provision in the 1936 Act that restricted the Virgin Islands’ government’s ability to “assess, administer, and collect real property taxes”). 59. The Judicial Council of the United States Court of Appeals for the Third Circuit, Report of the Judicial Council of the United States Court of Appeals for the Third Circuit on the Virgin Islands Supreme Court 1 (2012), available at http://www.visupremecourt .org/wfData/files/BookletReportofVirginIslandsSupremeCourt.pdf [hereinafter Judicial Council Report]. The Judicial Council was tasked with reporting to the Committee on Energy and Natural Resources of the Senate and the Committee on Interior and Insular Affairs for the House of Representatives; the reports were due every five years and were to determine whether the appellate court had “developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States.” Revised Organic Act, supra note 57, at § 23. 60. Virgo Corp. v. Paiewonsky, 384 F.2d 569, 576 (3d Cir. 1967) (citing S. Rept. 1271, 83d Cong. 1, 2; 2 U.S.C., Cong. & Admin. News, 1954, 2585, 2586). The three branches “are not constitutionally mandated[,] but granted by federal Congress.” Revised Organic Act, supra note 57, at § 2, ann. 2. 61. Paiewonsky, 384 F.2d at 576 (citing Revised Organic Act, 68 Stat. 497, 48 U.S.C.A. § 1541, et. seq.). 62. NEWMAN ET AL., supra note 55, at 340. 63. Pattie, supra note 2. 450 Stetson Law Review [Vol. 46
Subchapter 5 of the Revised Act covers the Virgin Islands judicial system,64 which includes a provision vesting “general original jurisdiction” in the District Court over local causes of action not otherwise vested to the local courts.65 The District Court’s jurisdiction under the Revised Act also includes diversity actions, federal questions, bankruptcy actions, and concurrent jurisdiction for crimes committed in the U.S. Virgin Islands.66 As implied in the Revised Act,67 the U.S. Congress expected the Virgin Islands legislature to establish both lower and appellate courts, pursuant to the Revised Act’s allowance. The Revised Act provided the District Court, despite its establishment as an Article IV court, with the power of an Article III court68—meaning the District Court had the authority to adjudicate diversity cases, federal question cases, and bankruptcy cases, while also obtaining general original jurisdiction for local causes of action, with the exception of those specifically vested by local law to the local courts.69 The District Court now possessed concurrent jurisdiction concerning criminal cases.70 This broad jurisdictional scope, however, changed with the 1984 amendments to the Revised Act.
C. Court Changes Prompted by the Revised Organic Act
The year after the passage of the Revised Act, the municipal courts were established.71 Nearly a decade later, in 1965, the two municipal court divisions were abolished to create a single municipal court for the entire territory.72 In 1976, the Territorial
64. 48 U.S.C. §§ 1611–1616. 65. Id. § 1611(b). 66. Id. § 1611(b)–(c). 67. Id. § 1611(a). In section 1611(a), the Act vests judicial power in the District Court, as well as in any future lower and appellate courts “established by local law.” Id. 68. Judicial Council Report, supra note 59, at 2. 69. 48 U.S.C. § 1612(a)–(b). Overall, “[t]he District Court of the Virgin Islands shall have the jurisdiction of a District Court of the United States.” Revised Organic Act, supra note 57, at § 22(a). However, the District Court’s jurisdiction does not extend to “civil actions wherein the matter in controversy does not exceed the sum or value of $500.” Id. § 22(b). The District Court’s jurisdiction is also outlined in caselaw. See, e.g., Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1055 (3d Cir. 1982) (stating that “when Congress acted to establish the District Court of the Virgin Islands, it established it as a court of original and general jurisdiction”). 70. 48 U.S.C. § 1612(c). 71. Pattie, supra note 2. 72. Superior Court of the Virgin Islands, Historical Overview of the Superior Court of the Virgin Islands,SUPERIOR COURT OF THE VIRGIN ISLANDS, http://www.visuperiorcourt 2017] Trouble in Paradise? 451
Court, which was the precursor of the Superior Court and initially called the Municipal Court, was established.73 Public Law 94-584 was also passed in 1976, authorizing the residents of the Virgin Islands to create their own constitution.74 In 1984, Congress authorized the Virgin Islands legislature to create an appellate court at its discretion via amendment to the Revised Act,75 which sought to “establish[] the framework for a dual system of local and federal judicial review in the Virgin Islands.”76 As a result of these amendments, the Virgin Islands District Court shared the same jurisdictional power as a United States District Court.77 This meant that the Virgin Islands legislature could now deprive the District Court of jurisdiction, particularly over local matters that had previously fallen within its jurisdiction.78 In order to do this, the Virgin Islands legislature vested the local courts with original jurisdiction over both civil cases and criminal cases.79 In 1991, the Territorial Court obtained jurisdiction over all local civil actions.80 Three years later, the Territorial Court
.org/about/history.aspx (last visited Feb. 28, 2017). 73. Id. This court was established in accord with Act No. 3876 (§ 5, Sess. L. 1976, p. 17). Id. 74. Pub. L. No. 94-584, 90 Stat. 2899 (Oct. 1976). Guam was also included in the Act. The Virgin Islands have made five attempts to adopt their own constitution. During the last attempt in 2009, concerns were expressed about the failure to expressly mention United States sovereignty and the recognition of special privileges to certain residents, which may violate the Equal Protection Clause of the United States Constitution. See generally Memorandum from Ronald Welch, Assistant Attorney General for Legislative Affairs, to Office of Management and Budget, Department of Justice Views on the Proposed Constitution Drafted by the Fifth Constitutional Convention of the United States Virgin Islands 3–14 (Feb. 23, 2010), available at https://www.justice.gov/sites/default/files/olc/ opinions/2010/02/31/usvi-doj-view-ltr100223_0.pdf. 75. Supreme Court of the United States Virgin Islands, History of the Court,SUPREME CT. OF THE U.S. VIRGIN ISLANDS, http://www.visupremecourt.org/Know_Your_Court/ History_of_the_Court/index.asp (last visited Feb. 28, 2017). 76. Parrott v. Gov’t of the V.I., 230 F.3d 615, 619 (3d Cir. 2000). 77. Id. (citing 48 U.S.C. § 1612(a)). 78. Edwards v. Hovensa, LLC, 497 F.3d 355, 359 (3d Cir. 2007) (citing 30 Cong. Rec. 23783, 23789 (1984) in stating that “the Virgin Islands legislature exercised the authority granted [to] it under 48 U.S.C. Section 1612(b) to divest the District Court of original jurisdiction over any cause over which local law has vested jurisdiction in the local courts”); In re Application of Moorhead, 27 V.I. 74, 13–14 (V.I. Terr. Ct. 1992) (noting that the “historic amendments [known collectively as the Revised Organic Act of 1954], many of which have been too long and too blatantly ignored, granted substantial autonomy to the local courts and the local legislature, and provided for the divestment from the District Court of most of its jurisdiction over local matters”). 79. Edwards, 497 F.3d at 359 (citing 30 Cong. Rec. 23783, 23789 (1984)). 80. Superior Court of the Virgin Islands, supra note 72. 452 Stetson Law Review [Vol. 46 obtained original jurisdiction with respect to criminal actions.81 However, the Territorial Court is not a constitutional court, meaning it does not carry out any constitutionally mandated functions.82 The last major change to the Territorial Court was its name; in 2004, the name of the Territorial Court changed to the Superior Court,83 which coincided with one of the most significant changes in the Virgin Islands judicial system—the establishment of a supreme court.
III. WHERE THE VIRGIN ISLANDS COURTS ARE NOW
In 1984, Congress granted the Virgin Islands legislature the authority to establish a supreme court84 and, in 2004, the Virgin Islands legislature exercised that authority by creating the Virgin Islands Supreme Court.85 The creation of the Virgin Islands Supreme Court was later determined to have implicitly repealed Title 1, Section 4 of the Virgin Islands Code.86 The Virgin Islands legislature established the Virgin Islands Supreme Court as “the highest court of the Virgin Islands” with the “supreme judicial power of the Territory.”87 In 2006, Chief Justice Hodge alongside Justices Cabret and Swan were nominated as the first three justices of the Virgin Islands Supreme Court by Governor Turnbull;88 they were subsequently confirmed by the Virgin Islands legislature89 and continue to serve as the three justices of the Virgin Islands Supreme Court today.90
A. Virgin Islands Supreme Court Assumes Jurisdiction
On January 29, 2007, the Virgin Islands Supreme Court assumed its appellate jurisdiction, which divested appellate
81. Id. See also Gov’t of the V.I. v. Rivera, 333 F.3d 143 (3d Cir. 2003) (recognizing, via citation to 4 V.I. Code section 76, that the Territorial Court had original jurisdiction over local civil and criminal actions). 82. Territorial Court v. Richards, 673 F. Supp. 152, 158 (D.V.I. 1987) (citing Gov’t of the V.I. v. Bell, 392 F.2d 207 (3d Cir. 1968)). 83. Superior Court of the Virgin Islands, supra note 72. 84. Supreme Court of the Virgin Islands, supra note 75. 85. Id. This was done in accordance with Bill No. 25-0213. Superior Court of the Virgin Islands, supra note 72. 86. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 (V.I. 2014). 87. 4 V.I. CODE ANN. § 21 (repealed 2004). 88. Supreme Court of the United States Virgin Islands, supra note 75. 89. Id. 90. Judicial Council Report, supra note 59, at 9. 2017] Trouble in Paradise? 453 jurisdiction from the Appellate Division of the District Court.91 After the change, the Appellate Division has jurisdiction only with respect to concluding those cases that were filed before the Virgin Islands Supreme Court assumed its appellate jurisdiction.92 At that time, the Third Circuit also began its temporary certiorari period.93 This temporary certiorari period included “discretionary review by a writ of certiorari of a final decision of the Virgin Islands Supreme Court” by the Third Circuit.94 However, this period did have a time limit: either the “first fifteen years following the establishment” of the Court or when the Court “has developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions.”95 The Judicial Council of the United States Court of Appeals for the Third Circuit on the Virgin Islands Supreme Court was tasked with analyzing the Virgin Islands judicial system and determining, after a period of five years, whether the Court had “developed a jurisprudence, as well as procedures and supportive institutional structures.”96 During its certiorari period, the Third Circuit expressly rejected all District Court opinions that suggested that the District Court retained “original jurisdiction over any cause over which local law [had] vested jurisdiction in the local courts.”97 The Third Circuit also affirmed the Erie doctrine98 and the related Rules of Decision Act.99
B. Banks and Beyond
In 2011, the Banks decision, presented to the Virgin Islands Supreme Court via certified question from the Third Circuit, was
91. Id. at 3. 92. Hypolite v. People of Virgin Islands, No. 2007-135, 2009 WL 152319, at *2 (V.I. Jan. 21, 2009) (citing section 23A of the Revised Organic Act and Virgin Islands Gov’t Hosp. & Health Facilities Corp. v. Gov’t of the V.I., Civ. No. 2007–125, slip op. at 3–4 (V.I. Sept. 16, 2008)). 93. Defoe v. Phillip, 702 F.3d 735, 739 (3d Cir. 2012) (citing 48 U.S.C. § 1613). 94. Judicial Council Report, supra note 59, at 3. 95. 48 U.S.C. § 1613 (2012). 96. Judicial Council Report, supra note 59, at 6. 97. Edwards v. Hovensa, 497 F.3d 355, 359 (3d Cir. 2007). 98. Id. at 360 (“The fact that the District Court of the Virgin Islands is an Article IV court rather than an Article III court does not preclude the application of Erie.”). For a further discussion of the Erie doctrine, see Part IV(A). 99. Edwards, 497 F.3d at 360. 454 Stetson Law Review [Vol. 46 issued.100 Banks sought to clarify, inter alia, the precedential power of Third Circuit decisions upon the Virgin Islands courts. In the following year, on December 28, 2012, Public Law 112-226 (HR 6116), the Direct Review Bill, was passed.101 This bill provided direct appeal to the United States Supreme Court for cases decided by the Virgin Islands Supreme Court.102 In theory, this marked the end of the Third Circuit’s temporary certiorari period,103 an end that came several years before its fifteen-year limit. However, as seen in Part IV(B), the cessation of the certiorari period was more complicated in application.
IV. SHIFTING JURISDICTIONAL BOUNDARIES
The Virgin Islands judicial system has evolved tremendously over the past several decades, particularly since the enactment of the Revised Organic Act. However, this evolution has not been without obstacles. Part A briefly discusses the development of the Erie doctrine and the application of Erie to the Virgin Islands judiciary. Part B examines three binary relationships: (1) the Third Circuit Court of Appeals and the Virgin Islands Supreme Court; (2) the Superior Court of the Virgin Islands and the Virgin Islands Supreme Court; and (3) the District Court of the Virgin Islands and the Superior Court of the Virgin Islands. Within each binary relationship, Part B discusses the shifts in jurisdictional boundaries and the resulting tension amongst the courts.
100. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011). For a further discussion of the Banks decision, see Part IV(B). 101. The bill language is as follows: Final judgments or decrees rendered by the Supreme Court of the Virgin Islands may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Virgin Islands is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Pub. L. No. 112-226 (HR 6116); 28 USC § 1260 (2012). 102. Pub. L. No. 112-226 (HR 6116). 103. Id. 2017] Trouble in Paradise? 455
A. Brief Overview of the Erie Doctrine
In 1789, the first Congress enacted Section 34 of the Judiciary Act,104 also known as the Rules of Decision Act, to establish the structure and jurisdiction of the federal judiciary.105 The Act provides: “The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”106 Thus, the Rules of Decision Act mandates that federal courts apply state substantive law in diversity cases.107 However, the Supreme Court limited the scope of the Rules of Decision Act in 1842. In Swift v. Tyson,108 the Court ruled that the Rules of Decision Act required federal courts to follow the “positive statutes of the state” in diversity cases.109 In doing so, the Court held that the “laws of the several states” referred to in the Rules of Decision Act do not include state common law110 on “questions of a more general nature,” such as tort or contract law.111 For nearly one hundred years, the Court’s decision in Swift required federal courts only to defer to state statutes and allowed federal courts to make their own body of general common law in diversity cases.112
104. 28 U.S.C. § 1652 (1789). 105. Congress has amended the Judiciary Act several times by Congress, but the framework for the federal court system as established in 1789 remains largely intact. Judiciary Act of 1789,LIBR. OF CONGRESS, https://www.loc.gov/rr/program/bib/ourdocs/ judiciary.html (last visited Feb. 28, 2017). 106. 28 U.S.C. § 1652. 107. Id. 108. 41 U.S. 1 (1842). Swift brought a diversity suit in the Circuit Court for the Southern District of New York to recover an unpaid debt. Id. at 14. Swift argued that federal law should be applied to the case, but Tyson argued that New York law governed the case since the contract was made there. Id. at 3–4. Justice Story, writing for the Court, held that the Circuit Court did not have to follow New York common law. Id. at 18–19. 109. Id. at 18. 110. Id. (“[I]t will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws.”). 111. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71 (1938) (“[F]ederal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the state as declared by its highest court.”). 112. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1515 (1984) (“[A]fter Swift, a state court in a commercial case could declare that it followed a local rule rather than the general common law but that a federal court sitting in that state would nevertheless follow the general common law.”). 456 Stetson Law Review [Vol. 46
While the goal of the Swift decision was to ensure uniform decisions across federal courts, the Swift doctrine ultimately led to the inconsistent application of state laws and an increase in litigants engaging in forum shopping.113 As a consequence of the Swift decision, a party’s substantive rights could differ depending upon whether the case was heard in state court or in federal court.114 In such scenarios, parties increasingly manipulated the requirements of diversity jurisdiction to ensure their case would be heard in a favorable court.115 A notorious illustration of such manipulation was seen in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.,116 when a Kentucky corporation dissolved and reincorporated in Tennessee to fabricate diversity jurisdiction and have a federal court enforce a contract that would be otherwise unenforceable under Kentucky law.117 For these reasons, the Swift decision received much criticism.118 In 1938, the Court reconsidered the issue of whether federal courts must follow the common law of the state in which the court sits in Erie Railroad Co. v. Tompkins.119 Tompkins brought suit in federal court after he was injured by a freight train while walking along Erie Railroad Company’s track.120 The parties differed on what law they believed should govern the standard of care: Erie argued that Pennsylvania law should apply, while Tompkins contended that the federal court was not bound by
113. Erie R.R. Co., 304 U.S. at 74–75. Forum shopping is defined as a litigant’s effort “to have his [or her] action tried in a particular court or jurisdiction where he [or she] feels he [or she] will receive the most favorable judgment or verdict.” BLACK’S LAW DICTIONARY 590 (5th ed. 1979). 114. Adam N. Steinman, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. REV. 245, 256 (2008); see also Richard Maloy, Forum Shopping? What’s Wrong with That?, 24 QUINNIPIAC L. REV. 25, 29 (2005) (noting that federal and state courts may apply different laws for the same civil case). 115. Steinman, supra note 114, at 248. Corporate litigants tend to favor federal court while private individuals tend to favor state court. Id. See also Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. PA. L. REV. 1439, 1528 (2008) (describing federal courts as “business men’s courts”). 116. 276 U.S. 518 (1928). 117. Id. at 523–24. 118. Erie R.R. Co., 304 U.S. at 69 (stating that the Court granted certiorari to determine “whether the oft-challenged doctrine of Swift v. Tyson shall now be disapproved”). 119. 304 U.S. 64, 69 (1938). 120. Id. at 69. Tompkins brought a diversity action against Erie in the Federal District Court for the Southern District of New York. Id. Tompkins was a resident of Pennsylvania while Erie was a New York corporation. Id. 2017] Trouble in Paradise? 457
Pennsylvania Supreme Court decisions and could determine the standard of care for itself.121 Both lower courts refused to apply Pennsylvania law, finding for Tompkins. The Supreme Court, however, reversed these decisions and stated that the federal court must apply Pennsylvania’s liability standard in deciding Tompkins’ claim.122 The Court held that federal courts must apply state substantive law in diversity cases, finding that the “laws of the several States” referred to in the Rules of Decision Act includes both state statutes and state common law.123 The Court then stated that federal courts lack the authority to create a “federal general common law,” overruling Swift.124 Rather than creating its own body of federal common law, the Erie doctrine requires a federal court exercising its diversity jurisdiction to apply state common law as articulated by the highest court in the state in which it is sitting.125 Under Erie, only federal procedural law is permissible in diversity cases.126 The Erie doctrine could not be fully applied in the Virgin Islands until the Virgin Islands Supreme Court began exercising its appellate jurisdiction in 2007. Prior to 2007, the “highest” non- federal court in the Virgin Islands was a trial court. Accordingly, the District Court of the Virgin Islands typically rendered decisions without considering how a territorial court would address the issue.127 Instead of looking to a territorial court for guidance on local law, the District Court of the Virgin Islands was tasked with predicting how the Third Circuit would decide the issue in question.128 As of 2007, however, the Erie doctrine applies to the Virgin Islands in the same manner as it would apply to any of the states.129 When the District Court of the
121. Id. at 70. 122. Id. at 80. 123. Id. at 78 (“Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state. And whether the law of the state shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.”). 124. Id. 125. Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996) (“Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.”). 126. Id. 127. See Fraser v. Kmart Corp., No. 2005-0129, 2009 WL 1124953, at *15 n.20 (D.V.I. Apr. 24, 2009) (discussing the application of Erie before and after the creation of the Virgin Islands Supreme Court). 128. Edwards v. Hovensa, 497 F.3d 355, 362 n.3 (3d Cir. 2007). 129. Id. at 360–61. 458 Stetson Law Review [Vol. 46
Virgin Islands or the Third Circuit face a novel question requiring interpretation of Virgin Islands law, these federal courts must predict how the Virgin Islands Supreme Court would decide the issue and apply that rule.130 The application of the Erie doctrine created shifts in the jurisdictional boundaries of the Virgin Islands courts and federal courts. These changes are especially noticeable between the Virgin Islands Supreme Court and the Third Circuit, as well as the Superior Court of the Virgin Islands and the District Court of the Virgin Islands. The relationships between these courts, as well as between the Superior Court and the Virgin Islands Supreme Court, will each be analyzed in turn.
B. Specific Jurisdictional Relationships
The changing judicial structure in the Virgin Islands has created some tension between the courts. Repeatedly, this disharmony revolves around the application of the Erie doctrine and the level of deference that must be applied between the courts. The following section examines these conflicts via three binary relationships: (1) the Third Circuit and the Virgin Islands Supreme Court; (2) the Superior Court of the Virgin Islands and the Virgin Islands Supreme Court; and (3) the District Court of the Virgin Islands and the Superior Court of the Virgin Islands. Notably, within each binary relationship, the tension between the courts seems to have escalated over the last decade.
1. Third Circuit and Virgin Islands Supreme Court
In 2004, the Virgin Islands legislature established the Virgin Islands Supreme Court as the “highest court of the Virgin Islands” and conferred to the Court “the supreme judicial power of the Territory.”131 However, the Virgin Islands Supreme Court
130. Defoe v. Phillip, 702 F.3d 735, 743 (3d Cir. 2012) (“[W]hen the District Court faces a novel question of Virgin Islands law, it must predict how the Supreme Court will resolve that question.”); United States v. Fontaine, 697 F.3d 221, 227 n.12 (3d Cir. 2012) (“Because [defendant’s] appeal requires us to interpret a territorial law, it is our role to predict how the Supreme Court of the Virgin Islands would resolve this interpretive issue.”); Edwards, 497 F.3d at 360 (“Now that [48 U.S.C.] § 1613 mandates that the relations between [federal] courts . . . and [Virgin Islands] courts . . . mirror the relations between state and federal courts, . . . [section] 1613 makes the Erie doctrine and the Rules of Decision Act applicable to the District Court of the Virgin Islands.”). 131. 4 V.I.C. § 21 (2004). 2017] Trouble in Paradise? 459 did not begin to exercise its appellate jurisdiction until 2007.132 While Congress’ ultimate goal was to mirror the judicial review relationship between the United States Supreme Court and the highest state courts and apply it in the Virgin Islands, Congress believed that an initial transition period was required as the Virgin Islands Supreme Court developed its body of common law.133 During this transition period, the Virgin Islands Supreme Court would be subject to discretionary certiorari review by the Third Circuit Court of Appeals for either a fifteen-year period or until the Virgin Islands Supreme Court “has developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions,” whichever is sooner.134
a. Judicial Boundaries Pre-2012
In 2010, the Third Circuit reviewed a decision of the Virgin Islands Supreme Court for the first time in Pichardo v. Virgin Islands Commissioner of Labor.135 The Third Circuit responded to requests from the Third Circuit Bar Association by announcing the standard it would use to review Virgin Islands Supreme Court decisions.136 The Third Circuit considered three possible standards of review. It would: (1) act as a “super-Supreme Court,” reviewing Virgin Islands Supreme Court decisions as a state
132. Judicial Council Report, supra note 59, at 3. 133. Id. at 4–5; see also People v. John, 654 F.3d 412, 415 (3d Cir. 2011) (“[I]t is plain that Congress intended for this court’s certiorari jurisdiction vis-à-vis the Virgin Islands Supreme Court to mirror the United States Supreme Court’s certiorari jurisdiction vis-à- vis any of the fifty state courts of last resort.”). 134. 48 U.S.C. § 1613 (1984). The Act provides: That for the first fifteen years following the establishment of the appellate court authorized by section 1611(a) of this title, the United States Court of Appeals for the Third Circuit shall have jurisdiction to review by writ of certiorari all final decisions of the highest court of the Virgin Islands from which a decision could be had. The Judicial Council of the Third Circuit shall submit reports . . . at intervals of five years following the establishment of such appellate court as to whether it has developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions. Id. 135. 613 F.3d 87 (3d Cir. 2010). 136. Andrew Simpson & Peter Goldberger, U.S. Congress Ends Third Circuit’s Oversight of Five-Year-Old Virgin Islands Supreme Court, 7 B. ASS’N THIRD FED.CIR. 1, 1– 2 (2013). 460 Stetson Law Review [Vol. 46
Supreme Court would review an intermediary state appellate court; (2) review the Virgin Islands Supreme Court as the United States Supreme Court would review decisions of a state Supreme Court; or (3) use a “manifestly erroneous” standard, which is the most deferential to the Virgin Islands Supreme Court.137 The Third Circuit adopted the “manifestly erroneous” standard, stating that it was the role of the Virgin Islands Supreme Court “to say what the law of the territory is.”138 Giving substantial deference to the Virgin Islands Supreme Court, the Third Circuit noted it would only reverse decisions that were “inescapably wrong.”139 The Third Circuit concluded that the Virgin Islands Supreme Court “‘essentially [has] the final word on the interpretation of local Virgin Islands law,’ . . . subject to the deferential standard of review” the court had articulated.140 In subsequent decisions, the Third Circuit would again emphasize the role of the Virgin Islands Supreme Court in interpreting Virgin Islands law. In Government of the Virgin Islands v. Lewis141 and Defoe v. Phillip,142 the Third Circuit reaffirmed that the authority to interpret Virgin Islands law rests with the Virgin Islands Supreme Court.143 In Lewis, the Third Circuit held that the Virgin Islands Supreme Court is not bound by post-2007 Third Circuit cases interpreting Virgin Islands law that were decided before the Virgin Islands Supreme Court had an opportunity to review the statute at issue.144 In Defoe, the Third Circuit concluded that the Virgin Islands Supreme Court may reject pre-2007 Third Circuit opinions.145 In both cases, the Third Circuit emphasized the need to allow the Virgin Islands Supreme Court the freedom to create its own precedent and that this freedom would be constrained if the Virgin Islands Supreme
137. Pichardo, 613 F.3d at 94. 138. Id. The Third Circuit held: “[W]e shall defer to decisions of the Supreme Court of the Virgin Islands on matters of local law unless we find them to be manifestly erroneous.” Id. at 89. Seemingly influencing the Third Circuit’s decision was an earlier Ninth Circuit opinion, which applied the “manifest error” standard in reviewing decisions by the Supreme Court of Guam. Id. at 94 (citing Haeuser v. Dep’t of Law, 368 F.3d 1091, 1093 (9th Cir. 2004)). 139. Id. 140. Id. at 97 (quoting BA Properties v. Gov’t of the United States Virgin Islands, 299 F.3d 207, 212 (3d Cir. 2002)) (emphasis added). 141. 620 F.3d 359 (3d Cir. 2010). 142. 702 F.3d 735 (3d Cir. 2012). 143. Lewis, 620 F.3d at 364 n.5. 144. Id. 145. Defoe, 702 F.3d at 744–45. 2017] Trouble in Paradise? 461
Court was bound by Third Circuit cases.146 For these reasons, the Third Circuit has repeatedly announced that it will defer to Virgin Islands Supreme Court precedent on issues of local law.147 The Virgin Islands Supreme Court has also demonstrated much respect and deference toward Third Circuit precedent. In Banks v. International Rental & Leasing Corp.,148 the Virgin Islands Supreme Court noted that its creation “did not erase pre- existing case law”; therefore, prior Third Circuit precedent would continue unless the Virgin Islands Supreme Court specifically reviewed the issues discussed in those cases.149 Thus, decisions rendered by the Third Circuit and the Appellate Division of the District Court would be binding on the Superior Court of the Virgin Islands, and such decisions would be persuasive authority to the Virgin Islands Supreme Court.150 The Virgin Islands Supreme Court stated that it would be bound by Third Circuit decisions only under the following narrow circumstances: (1) the Third Circuit is reviewing a Virgin Islands Supreme Court decision during its discretionary certiorari period, and (2) the Third Circuit has reversed the Virgin Islands Supreme Court’s interpretation of local law.151 Even though the decisions are not binding, the Virgin Islands Supreme Court noted that Third Circuit opinions interpreting Virgin Islands law are “entitled to great respect.”152 For the first five years of this transition period (from 2007 to 2012), the opinions from both the Virgin Islands Supreme Court and the Third Circuit illustrate a mutual respect and deference between the courts. However, the passage of the Direct Review Bill in 2012 has been a catalyst for jurisdictional disagreement between the Virgin Islands Supreme Court and the Third Circuit.
146. Id. at 745; Lewis, 620 F.3d at 364 n.5. In a sweeping concession, the Third Circuit noted that its “precedents are imperfect” and that the court “cannot say that all disagreements with us must be wrong.” Defoe, 702 F.3d at 746. The Third Circuit further noted that courts generally have the freedom to overturn precedents they had adopted from other courts. Id. at 745 (analogizing to the Eleventh Circuit’s rejection of Fifth Circuit precedent after the courts separated in 1981). 147. Defoe, 702 F.3d at 745; Lewis, 620 F.3d at 364 n.5. 148. 55 V.I. 967 (V.I. 2011). 149. Id. at 974 (citations omitted). 150. Id. 151. Id. at 975–76. 152. Defoe v. Phillip, 56 V.I. 109, 120 (V.I. 2012) (citation omitted). 462 Stetson Law Review [Vol. 46
b. Disagreement Over the Enactment Date of the Direct Review Bill
On December 28, 2012, President Barack Obama signed the Direct Review Bill, providing direct appeal from the Virgin Islands Supreme Court to the United States Supreme Court and ending the Third Circuit’s temporary certiorari period.153 As of 2012, the Virgin Islands Supreme Court has significant autonomy over Virgin Islands law—mirroring its judicial review process with state Supreme Courts, the United States Supreme Court declines to review Virgin Islands Supreme Court decisions that are based upon a reasonable interpretation of Virgin Islands law.154 The United States Supreme Court will review only Virgin Islands Supreme Court decisions that implicate federal law or the United States Constitution.155 While seemingly straightforward, the application of the Direct Review Bill has created some disagreement between the Virgin Islands Supreme Court and the Third Circuit. The Third Circuit first addressed the application of the Direct Review Bill in Kendall v. The Virgin Islands Daily News,156 where the court held that it retained certiorari jurisdiction over pending cases—cases where certiorari had been granted before December 28, 2012.157 The Third Circuit then slightly broadened its scope of certiorari review: the Third Circuit characterized its decision in Kendall as applying to all “certiorari petitions filed before the effective date of the jurisdiction-stripping act,” rather
153. 28 U.S.C. § 1260 (2012). The Direct Review Bill states: Final judgments or decrees rendered by the Supreme Court of the Virgin Islands may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of the Virgin Islands is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. Id. 154. Id.; see also Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 94 (3d Cir. 2010) (describing the United States Supreme Court’s judicial review process of state Supreme Court decisions). 155. 28 U.S.C. § 1260. 156. 716 F.3d 82 (3d Cir. 2013). 157. Id. at 87 (noting that the enactment of the Direct Review Bill “does not mean, however, that all jurisdiction-stripping provisions ... must apply to cases pending at the time of . . . enactment”) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994)). 2017] Trouble in Paradise? 463 than only the cases in which the court has already granted certiorari.158 While the difference in terminology seems minimal, the Third Circuit’s certiorari review is discretionary, thus the dates of when certiorari was filed and when certiorari was granted may differ by several weeks.159 Interestingly, the Third Circuit rejects precedent from the Ninth Circuit that addressed a similar issue. In 2006, the Ninth Circuit concluded that the Act eliminating its temporary certiorari jurisdiction over Guam’s Supreme Court did apply to pending cases.160 This departure is noteworthy because the Third Circuit has previously followed Ninth Circuit precedent on matters related to territorial oversight.161 The Virgin Islands Supreme Court seems to implicitly reject Kendall. In Hughley v. Government of the Virgin Islands,162 the Virgin Islands Supreme Court states: “[I]t is well established that the court of last resort for a state or territory is not bound by decisions of its regional federal court of appeals or any other lower federal court—even those interpreting the United States Constitution—but need only follow the United States Supreme Court.”163 Here, the Virgin Islands Supreme Court seems to reject Kendall insofar as the opinion suggests that the Virgin Islands Supreme Court must follow Third Circuit decisions interpreting federal law, such as the scope of the Direct Review Bill. The Kendall and Hughley decisions are significant because they signify the first signs of disagreement between the Virgin Islands Supreme Court and the Third Circuit. The increased tension between the Virgin Islands Supreme Court and the Third Circuit is apparent in Bason v. Government of the Virgin Islands.164 Bason concerned a 2011 arbitration award requiring the Virgin Islands government to reinstate the assistant attorney general.165 The Superior Court of the Virgin Islands ordered the
158. In re Kendall, 712 F.3d 814, 821–22 n.3 (3d Cir. 2013) (emphasis added). 159. See A Reporter’s Guide to Applications Pending Before the Supreme Court of the United States,SUP.CRT.PUB.INFO.OFFICE 16 (Feb. 16, 2014), http://www.supremecourt .gov/publicinfo/reportersguide.pdf (noting that it takes an average of six weeks for the United States Supreme Court to decide whether to grant or deny certiorari). 160. Santos v. Guam, 436 F.3d 1051, 1054 (9th Cir. 2006). 161. See, e.g., Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 94 (3d Cir. 2010) (adopting the Ninth Circuit’s “manifest error” standard of review). 162. 61 V.I. 323 (V.I. 2014). 163. Id. at 337–38. 164. 767 F.3d 193 (3d Cir. 2014). 165. Id. at 196. 464 Stetson Law Review [Vol. 46 assistant attorney general to be reinstated, but the Virgin Islands Supreme Court reversed and remanded.166 The Union filed for appeal to the Third Circuit.167 The disagreement between the Virgin Islands Supreme Court and the Third Circuit in Bason relates to the effective date of the Direct Review Bill, which states: “The amendments made by this Act apply to cases commenced on or after the date of the enactment of this Act.”168 The divergence between the courts seems to rest on the scope of the term “cases commenced”— whether the term relates to the filing of a complaint in the Superior Court (broad view) or the filing a writ of certiorari with the Third Circuit (narrow view).169 This distinction is essential given the significant backlog in the Virgin Islands Superior Court.170 A broad interpretation of the effective date could allow the Third Circuit’s certiorari jurisdiction to continue for several years, while a narrow interpretation would effectively end the Third Circuit’s certiorari jurisdiction. In Bason, the Virgin Islands government filed a complaint in the Superior Court on May 9, 2011, and the Union filed a petition for a writ of certiorari with the Third Circuit on January 25, 2013.171 Thus, under the broad interpretation of the Direct Review Bill, the Third Circuit would have jurisdiction in Bason because the Government filed the complaint in the Superior Court prior to the Direct Review Bill’s December 28, 2012 effective date. However, the Third Circuit lacked jurisdiction in Bason under the narrow interpretation because the Union filed its petition for a writ of certiorari with the Third Circuit after the Direct Review Bill’s December 28, 2012 effective date. The Virgin Islands Supreme Court favors the narrow interpretation of the Direct Review Bill’s effective date. In an unusual move, the Virgin Islands Supreme Court filed an amicus curiae brief to the Third Circuit, arguing that the Third Circuit did not have jurisdiction over cases filed in the Virgin Islands Superior Court before December 28, 2012.172 In its amicus brief,
166. Id. at 196–97. 167. Id. at 200. 168. 28 USC § 1260 (2012) (emphasis added). 169. Bason, 767 F.3d at 205–06. 170. Aldeth Lewin, V.I. Bar Association: St. Croix Needs Another Judge to Speed Justice Along, V.I. DAILY NEWS, Mar. 4, 2015, at A1. 171. Bason, 767 F.3d at 196–97, 200. 172. Id. at 200 n.1. 2017] Trouble in Paradise? 465 the Virgin Islands Supreme Court seemed to emphasize that it had the final say on local law and that the Third Circuit no longer had supervisory authority over the Virgin Islands Supreme Court.173 Thus, the Virgin Islands Supreme Court seems to favor the narrow interpretation of the Direct Review Bill’s effective date. The Third Circuit, on the other hand, held in Bason that it maintained certiorari jurisdiction over cases filed in the Virgin Islands Superior Court prior to December 28, 2012.174 Since the term “cases commenced” was not defined in the statute, the Third Circuit relied upon traditional statutory construction to determine that it had jurisdiction over any proceeding in any Virgin Islands court that was filed before December 28, 2012.175 The tension between the courts is evidenced by the Third Circuit’s comments on the Virgin Islands Supreme Court’s amicus brief:
[I]t does appear rather unusual and even troubling for a court to submit an amicus curiae brief, especially where the court in question actually issued the decision that is the subject of the appellate or certiorari proceeding. In addition, we find the specific circumstances under which this amicus curiae brief was filed to be rather problematic.176
Here, the Third Circuit seems to believe that the Virgin Islands Supreme Court overstepped its jurisdictional boundary by filing its amicus brief and seems troubled that a relatively young Virgin Islands Supreme Court would attempt to instruct the Third Circuit on the scope of its jurisdiction. While the Virgin Islands Supreme Court has not directly spoken on the issue, two Superior Court decisions indicate that the Virgin Islands courts may not follow Third Circuit opinions
173. Id. 174. Id. at 206. 175. Id. at 206–07 (noting that the “‘Effective Date’ section of [the Direct Review Bill] does not refer to a particular type of proceeding or a specific judicial body”). 176. Id. at 200–01 n.1. Interestingly, this is not the only time a federal court has gone out of its way to address the VI Supreme Court. E.g., Payne v. Fawkes, No. 2014-53, 2014 WL 5548505, at *2 (D.V.I. Nov. 3, 2014). The District Court of the Virgin Islands has stated: “The Court also respects the fact that it is bound by the local law enunciated by the Supreme Court on local issues. . .. What is not worthy of respect, however, is the manner in which the Supreme Court chose to communicate its disagreement with the District Court’s rulings.” Id. at *20. 466 Stetson Law Review [Vol. 46 that conflict with Virgin Islands Supreme Court decisions. In Petersen v. Golden Orange Centers, Inc.,177 the Superior Court had to decide between conflicting Virgin Islands Supreme Court and Third Circuit precedent:
The Third Circuit’s application of the equitable tolling doctrine to cases that were re-filed after the first case was dismissed without prejudice is directly at odds with the Virgin Islands Supreme Court’s decision in Jensen. . . . This apparent irreconcilable conflict would ordinarily pose a quandary for the Superior Court because the Third Circuit retains certiorari jurisdiction over the Virgin Islands Supreme Court for all cases commenced in the Superior Court prior to December 28, 2012. . . . In light of the Virgin Islands Supreme Court’s authority as the highest court in the Virgin Islands and the final arbiter on matters of local law, the Court will apply the rule espoused in Jensen ....178
This opinion is consistent with an earlier Superior Court decision, which held that the Superior Court is only bound by Third Circuit decisions rendered when the Third Circuit is “serving as the de facto court of last resort in the Virgin Islands.”179 Under such an approach, the Superior Court would be bound only by Third Circuit opinions that overrule Virgin Islands Supreme Court decisions on matters of local law.180 Thus, these decisions indicate that the territorial courts may defer to the Virgin Islands Supreme Court’s narrow interpretation of the Direct Review Bill’s effective date, rather than the Third Circuit’s broad interpretation. Over the last five years, the relationship between the Virgin Islands Supreme Court and the Third Circuit Court of Appeals has become increasingly complex. As discussed, this tension between the courts is a result of conflicting opinions interpreting the enactment date of the Direct Review Bill. As this is the first time these two courts have been in direct conflict with one
177. No. SX-08-CV-202, 2014 WL 7525517 (V.I. Super. Ct. Sept. 25, 2014). 178. Id. at *2 n.2. 179. Benjamin v. Coral World, No. ST-13-CV-065, ST-13-CV-294, 2014 WL 2922306, at *3 n.38 (V.I. Super. Ct. June 12, 2014). 180. Notably, the Third Circuit reviews VI Supreme Court decisions under an extremely deferential “manifest error” standard and, as of this writing, has never overturned the VI Supreme Court’s interpretation of local law. See Judicial Council Report, supra note 59, at 5, 17 (noting that the Third Circuit has yet to reverse the VI Supreme Court). 2017] Trouble in Paradise? 467 another, it is unclear how the Virgin Islands Supreme Court and the Third Circuit will approach this issue in the future.
2. Superior Court and Virgin Islands Supreme Court
In 2011, the Virgin Islands Supreme Court discussed the analytical approach that the Superior Court must follow when local law is silent on an issue. In Banks v. International Rental & Leasing Corp.,181 the Virgin Islands Supreme Court concluded that the Court is not required to mechanically apply the Restatements since the Virgin Islands Supreme Court has been granted the freedom to develop its own common law.182 The Virgin Islands Supreme Court then established a three-factor analytical approach that the Superior Court must apply when determining what common law rule to adopt: (1) “whether any Virgin Islands courts have previously adopted a particular rule”; (2) “the position taken by a majority of courts from other jurisdictions”; and (3) “which approach represents the soundest rule for the Virgin Islands.”183 The Virgin Islands Supreme Court then held that the Superior Court may depart from the Virgin Islands Supreme Court’s pre-Banks decisions that mechanically adopted the Restatements, so long as the Superior Court explains its reasons for doing so.184 This three-factor approach is consistent with the Superior Court’s concurrent authority to develop the Virgin Islands common law.185 Since early 2015, the Superior Court has slowly tested the scope of the authority granted to it by the Virgin Islands Supreme Court in Banks. The Superior Court began testing the bounds of its authority by indicating when the Virgin Islands Supreme Court did not conduct a Banks analysis and by repeatedly emphasizing that it need not follow otherwise binding precedent that mechanically adopted the Restatements.186
181. 55 V.I. 967 (V.I. 2011). 182. Id. at 976 (“We conclude that the Legislature did not intend for . . . this Court to mechanically apply the most recent Restatement.”). 183. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 (V.I. 2014). 184. Id. at 606 n.1. 185. Banks, 55 V.I. at 977–80. 186. See Cifre v. Daas Enterprises, Inc., No. ST-2012-CV-701, 2015 WL 1912709 (V.I. Super. Ct. Apr. 24, 2015) (arguing that the Superior Court may elect not to follow a pre- Banks Virgin Islands Supreme Court case that mechanistically applies the Restatements); Berry v. Performance Constr., No. ST-13-CV-524 (V.I. Super. Ct. 2015) (stating that the court does not have to follow otherwise binding precedent if a Banks analysis was not 468 Stetson Law Review [Vol. 46
Repeatedly, the Superior Court seemed to emphasize the appellate courts’ lack of Banks analysis—it would emphasize the lack of a Banks analysis then proceed to apply the rule articulated by the appellate court.187 In these early cases, the Superior Court seems to be gradually testing the limits of its authority by articulating the circumstances under which it may depart from Virgin Islands Supreme Court precedent. In a recent case, the Superior Court reconsidered a post- Banks Virgin Islands Supreme Court case defining duress.188 The Superior Court argued that the Virgin Islands Supreme Court did not conduct a Banks analysis, but mechanically applied the Restatement (Second) of Contracts.189 While the Virgin Islands Supreme Court has authorized the Superior Court to reconsider pre-Banks decisions,190 it has not expressly granted the Superior Court any authority to reconsider post-Banks decisions. Interestingly, the Superior Court notes in passing that it does not explicitly have the authority to reconsider a post-Banks case.191 However, the Superior Court decides, without stating its justification, to reconsider the case anyway.192 Here, the Superior Court has effectively given itself permission to reconsider post- Banks appellate decisions that mechanically adopt the performed); Police Benevolent Ass’n v. Brooks, No. ST-12-CV-123 (V.I. Super. Ct. 2015) (noting that the Virgin Islands Supreme Court did not perform a Banks analysis in the post-Banks case of Ross v. Hodge); Abdallah v. Abdel-Rahman, No. ST-13-CV-227 (V.I. Super. Ct. 2015) (indicating that the Virgin Islands Supreme Court did not perform a Banks analysis in Pollara v. Chateau St. Croix, LLC); Nicholas v. Damian-Rojas & GEC, LLC, 62 V.I. 123 (V.I. Super. Ct. 2015) (emphasizing that pre-Banks Third Circuit cases that mechanically adopt the Restatements are not binding). 187. See Police Benevolent Ass’n, No. ST-12-CV-123, at *3–4 n.10 (emphasizing that the Virgin Islands Supreme Court did not perform a Banks analysis in the post-Banks case of Ross v. Hodge, but then following the Court’s rule in Ross for the elements of conversion); Abdallah, No. ST-13-CV-227, at *4 n.13 (indicating that the Virgin Islands Supreme Court did not perform a Banks analysis in Pollara v. Chateau St. Croix, LLC, but then applying Court’s analysis from Pollara). 188. Slack v. Slack, 62 V.I. 366, 378 (V.I. Super. Ct. 2015) (reconsidering the VI Supreme Court’s decision in Burd v. Antilles Yachting Servs., Inc., 57 V.I. 354, 359 (V.I. 2012)). 189. Id. 190. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605–06 (V.I. 2014). 191. Slack, 62 V.I. at 378. After noting that the VI Supreme Court has authorized the Superior Court to reconsider pre-Banks decisions, the Superior Court stated: “Although Burd is a post-Banks case and binding precedent upon this Court, its mechanical application of former 1 V.I.C. 4, without further consideration to justify its continued reliance on the Restatement, makes it an appropriate case to be reconsidered.” Id. The Superior Court then proceeds to do a Banks analysis without any further explanation as to where it received the authorization to do an analysis on a post-Banks case. Id. at 379. 192. Id. at 378. 2017] Trouble in Paradise? 469
Restatements.193 This seems to go beyond the limited scope of authority granted to the Superior Court by the Virgin Islands Supreme Court in Connor.194
3. District Court and Superior Court
In 1954, Congress vested judicial power in the District Court of the Virgin Islands until the Virgin Islands legislature established local courts.195 As a result, the District Court of the Virgin Islands was a court of original and general jurisdiction with significant influence on the development of Virgin Islands law—the District Court acted as a state court, rather than as a federal court interpreting local law.196 This federal control over matters of Virgin Islands law created tension between the federal courts and local opponents who advocated for an end of federal control over local matters.197 The conflict over the need for local-judicial autonomy resulted in Congress amending the Revised Organic Act in 1984198 to establish a “dual system of local and federal judicial review” in the Virgin Islands.199 These amendments granted local trial courts original jurisdiction over civil and criminal actions beginning in the early 1990s.200 This grant of original and general jurisdiction to local courts divested the District Court of its jurisdiction over such matters, meaning the District Court of the
193. Id. 194. Connor gave the Superior Court the authority to reconsider only pre-Banks decisions that mechanically adopt the Restatements. Connor, 60 V.I. at 605. 195. Moravian Sch. Advisory Bd. v. Rawlins, 70 F.3d 270, 272 (3d Cir. 1995) (stating that the Revised Organic Act gave the District Court of the Virgin Islands “jurisdiction over federal questions, regardless of the amount in controversy, and general original jurisdiction over questions of local law, subject to the exclusive jurisdiction of the local courts over civil actions where the amount in controversy was less than [five-hundred dollars]”). 196. Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1055 (3d Cir. 1982), superseded by statute as recognized in United States v. Gillette, 738 F.3d 63 (3d Cir. 2013) (“[W]hen Congress acted to establish the District Court of the Virgin Islands, it established it as a court of original and general jurisdiction.”). 197. In re Moorhead, 27 V.I. 74, 81 (V.I. Terr. Ct. 1992). 198. 48 U.S.C. § 1611 (1984). 199. Parrott v. Gov’t of the V.I., 230 F.3d 615, 619 (3d Cir. 2000). 200. 4 V.I.C. § 76(a)-(b) (1984) (giving the Territorial Court—now named the Superior Court—of the Virgin Islands original jurisdiction over local civil and criminal matters). The Virgin Islands legislature vested the local courts with original jurisdiction over civil cases in 1991 and criminal cases in 1994. Id. 470 Stetson Law Review [Vol. 46
Virgin Islands possessed only the same jurisdiction as any other federal district court.201 The purpose of the 1984 amendments to the Revised Organic Act was to establish a local court-federal court relationship in the Virgin Islands that mirrored the relationships between state courts and federal courts.202 The grant of original jurisdiction to the Superior Court was intended to provide more autonomy to local courts, and the divestment of the District Court of its original jurisdiction was necessary to eliminate any overlap between the District Court and the Territorial Court on matters of local law.203 However, the grant of jurisdiction to the Territorial Court and divestment of the District Court created some initial conflict over the transfer of jurisdiction between the two courts. From 1954 to 1991, the District Court had significant influence on the development of Virgin Islands law. Initially, the District Court displayed some reluctance to lose its original jurisdiction over local law, arguing that it maintained concurrent jurisdiction with the Virgin Islands courts over local actions. In 1999, for example, the District Court stated: “This court need not predict local law . . . because it is vested with the authority to decide novel questions as a local trial court.”204 This assertion of concurrent jurisdiction by the District Court directly conflicted with an earlier opinion of the Territorial Court, which stated that the District Court was divested of such jurisdiction on October 1, 1991.205 This dispute between the courts continued until the Third Circuit intervened in 2007. In Edwards v. Hovensa, LLC,206 the Third Circuit held that it would reject any District Court opinion suggesting the District Court retains “original jurisdiction over any cause over which local law has vested
201. Parrott, 230 F.3d at 619. The Third Circuit explained that the 1984 amendments to the Revised Organic Act allowed the Virgin Islands Legislature to “divest the District Court of original jurisdiction for local matters by vesting that jurisdiction in territorial courts established by local law for all causes for which ‘any court established by the Constitution and laws of the United States does not have exclusive jurisdiction.’” Id. 202. Moorhead, 27 V.I. at 84–85. 203. Parrott, 230 F.3d at 619 (“The purpose of [the 1984 Amendments] is to eliminate the present situation of both the district court and the local court having jurisdiction over strictly local causes.”). 204. Spink v. Gen. Accident Ins. Co., 36 F. Supp. 2d 689, 691 (D.V.I. 1999). 205. Moorhead, 27 V.I. at 82 (“Upon the vesting of this jurisdiction in the Territorial Court on October 1, 1991, the District Court was then divested of such jurisdiction . . . .”). 206. 497 F.3d 355 (3d Cir. 2007). 2017] Trouble in Paradise? 471 jurisdiction in the local courts.”207 While the conflict resulting from the transfer of original jurisdiction between the District Court and the local courts was seemingly resolved by the Third Circuit in Edwards, the demonstrated differences in approach between the courts continue primarily as a result of the unique judicial review process in the Virgin Islands. The 1984 amendments granted the District Court of the Virgin Islands the authority to exercise appellate jurisdiction over the decisions of local courts until the Virgin Islands Legislature established a local appellate court.208 Thus, the District Court still held some influence over the development of Virgin Islands law as local courts had to defer to decisions rendered by the Appellate Division of the District Court.209 In 2007, however, the Virgin Islands Supreme Court began to exercise its appellate jurisdiction over local law.210 With the creation of the Virgin Islands Supreme Court, the District Court no longer had appellate jurisdiction over the Superior Court.211 Instead, the Virgin Islands Supreme Court hears all appeals from Superior Court decisions.212 This change in the judicial review process has created tension between the Superior Court and the District Court. Under the Erie doctrine, federal courts must defer to a state supreme court’s interpretation of local law when exercising its diversity jurisdiction.213 However, the Virgin Islands judicial system was unique because, for a time, original jurisdiction was vested in local courts (Superior Court) while appellate jurisdiction was vested in federal courts (Appellate Division of the District Court and the Third Circuit). In Edwards,214 the Third Circuit discussed whether the Appellate Division must follow
207. Id. at 359. 208. The Revised Organic Act of 1954 granted the Virgin Islands District Court “appellate jurisdiction to review the judgments and orders of the inferior courts of the Virgin Islands to the extent now or hereafter prescribed by local law.” 48 U.S.C. § 1541 (1954). The 1984 amendments to the Revised Organic Act provided that when the Virgin Islands Legislature established an appellate court, that court would divest the Appellate Division of the Virgin Islands District Court of its appellate jurisdiction. 48 U.S.C. § 1613(a) (1984). 209. Judicial Council Report, supra note 59, at 2. 210. Id. at 3. 211. Id. 212. Id. 213. See supra Part IV(A) (discussing the development and application of the Erie doctrine). 214. 497 F.3d 355 (3d Cir. 2007). 472 Stetson Law Review [Vol. 46 state law as announced by the Superior Court.215 The Third Circuit held that the Appellate Division does not have to apply Superior Court interpretations of Virgin Islands law, but may look to such decisions as “a datum for ascertaining state law.”216 The Third Circuit reasoned that the Erie doctrine did apply to the Appellate Division, but Erie mandates only that federal courts follow precedent rendered by the highest court in the state and not decisions of local trial courts.217 The Appellate Division, therefore, is not required to defer to Superior Court decisions, but may use such decisions as persuasive authority regarding the interpretation of Virgin Islands law. With the Supreme Court assuming its appellate jurisdiction in 2007 and the corresponding loss of appellate jurisdiction by the District Court, the question of when the Superior Court must defer to the Appellate Division continues to cause tension between the courts. As discussed, the Edwards decision held that the Appellate Division was not bound by Superior Court opinions. Conversely, early Virgin Islands Supreme Court decisions held that the Superior Court was bound by decisions of the District Court. In Banks v. International Rental & Leasing Corp.,218 the Virgin Islands Supreme Court held that prior Third Circuit and Appellate Division cases would be binding upon the Superior Court, unless the Virgin Islands Supreme Court addressed the issue.219 Thus, early decisions seemed to favor the Superior Court deferring to Appellate Division decisions. Recent decisions, however, can be read as saying that the Superior Court owes no deference whatsoever to the District Court. In Bryan v. Fawkes,220 the Virgin Islands Supreme Court discussed in detail the relationship between the Superior Court
215. Id. at 361–62. 216. Id. at 361 (citation omitted). 217. Id. at 360–62. The Edwards court held that, because [t]he Superior Court of the Virgin Islands (formerly the Territorial Court) is not the highest court of the Territory [and] . . . is not even an intermediate appellate court, but rather a trial court, . . . although we believe that the District Court could have looked to the decisions of the Superior Court as ‘a datum for ascertaining state law,’ we cannot conclude that it erred in holding that it was not bound by the decisions of the Superior Court. Id. at 361. 218. 55 V.I. 967 (V.I. 2011). 219. Id. at 974 (quoting In re People of the V.I., 51 V.I. 374, 389 n.9 (V.I. 2009)). 220. 61 V.I. 416 (V.I. 2014). 2017] Trouble in Paradise? 473 and the District Court.221 First, the Court noted that both the Superior Court and the District Court are Article IV courts, exercising authority granted to them by Congress.222 The Supremacy Clause, therefore, does not govern the relationship between the Superior Court and the District Court.223 Thus, the United States Constitution does not require the Superior Court to defer to the District Court.224 Since both courts received their grant of authority from Article IV, the Virgin Islands Supreme Court held that “the Superior Court ow[ed] no deference to the District Court on issues of federal or local law, under the Supremacy Clause or otherwise.”225 This is a clear departure from the Virgin Islands Supreme Court’s decision in Banks and may have been influenced by the Virgin Islands Supreme Court’s own disagreement with the Third Circuit.226 The Superior Court has adopted this language, claiming that it owes no deference to the District Court.227 As a result of these decisions, a question remains about whether the Superior Court must ever defer to the District Court. The initial conflict between the District Court and the Superior Court over the application of the Erie doctrine has been resolved by the courts for nearly a decade. The question of deference between the courts, however, has yet to be determined. As with the prior conflict over Erie’s application, the deference
221. Id. at 437. 222. Id. at 438. Article IV, Section 3 of the United States Constitution states: “[C]ongress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. CONST. art. IV, § 3 (authorizing Congress to regulate the territories of the United States). Most federal courts receive their authority from Article III of the United States Constitution. U.S. CONST. art. III (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”). 223. Bryan, 61 V.I. at 438 (“[A] conflict between [the VI Supreme Court] (or the Superior Court) and the District Court ‘presents no competition between state and federal sovereignty,’ given that all of the courts involved draw their sovereignty from Congress under Article IV.”) (quoting Lewis v. Alexander, 685 F.3d 325, 346 n.18 (3d Cir. 2012)). 224. Bryan, 61 V.I. at 438 (noting that the separation between the Superior Court and District Court is administrative rather than constitutional). 225. Id. at 442 (emphasis added). 226. See supra Part IV(B)(1) (discussing the growing tension between the VI Supreme Court and the Third Circuit). 227. Haynes v. Ottley, No. ST-14-CV-0000486, 2014 WL 5548229, at *4 n.20 (V.I. Super. Ct. Oct. 30, 2014), rev’d, 61 V.I. 547 (V.I. 2014) (“The Superior Court and the District Court are all Article IV courts with the Superior Court owing no deference to the District Court on issues of federal or local law, under the Supremacy Clause or otherwise.”) (citing Bryan, 61 V.I. at 442). 474 Stetson Law Review [Vol. 46 question may need to be considered by an appellate court. The issue then becomes which court—the Virgin Islands Supreme Court or the Third Circuit Court—has the final say regarding this jurisdictional conflict.
V. RECOMMENDATIONS AND CONCLUSION
Since the passage of the Revised Organic Act, the Virgin Islands judiciary has undergone tremendous change. With the enactment of the Direct Review Bill in 2012, the Virgin Islands judicial system has experienced a significant shift in its jurisdictional boundaries. Through these transitional periods, particular trends have been established that may be helpful in assisting the courts with resolving the above-mentioned mêlées. Concerning the relationship between the Third Circuit and the Virgin Islands Supreme Court, there appears to be three particular trends among the caselaw: (1) Third Circuit deference to the Virgin Islands Supreme Court on issues of local law; (2) Virgin Islands Supreme Court deference to the Third Circuit for issues not specifically reviewed by the Virgin Islands Supreme Court; and (3) the expanding jurisdictional scope of the Third Circuit. First, the Third Circuit has established a trend of deference to the Virgin Islands Supreme Court regarding local law issues, particularly in Lewis228 and Defoe.229 Consistent with its decision in Lewis, the Virgin Islands Supreme Court may reject post-2007 cases interpreting local law230 and, as a result of the holding in Defoe, the Virgin Islands Supreme Court may reject pre-2007 cases interpreting local law.231 The Third Circuit appears to support the premise that the Virgin Islands Supreme Court may reject Third Circuit decisions interpreting local law. The decisions in Defoe and Lewis, read in tandem, demonstrate that the Third Circuit seems to have created a trend—or at the very least begun to establish a trend over a period of several months—of allowing the Virgin Islands Supreme Court to have the final word regarding the interpretation of local law. Another trend, the counterpart to the Third Circuit’s deference to the Virgin Islands Supreme Court, is the Virgin Islands Supreme
228. Gov’t of the V.I. v. Lewis, 620 F.3d 359 (3d Cir. 2010). 229. Defoe v. Phillip, 702 F.3d 735 (3d Cir. 2012). 230. Lewis, 620 F.3d at 364–65 n.5. 231. Defoe, 702 F.3d at 744–45. 2017] Trouble in Paradise? 475
Court’s deference to Third Circuit precedent concerning issues not specifically addressed by the Virgin Islands Supreme Court. This movement was established in Banks, which recognized that the creation of the Virgin Islands Supreme Court did not eradicate Third Circuit precedent.232 Last, the Third Circuit established its jurisdictional scope in Kendall, stating that it had jurisdiction over those cases where certiorari review had been granted subsequent to the December 28, 2012 enactment of the Direct Review Bill.233 However, this jurisdiction quickly expands to cover cases in which the petition for writ of certiorari had been filed234 to cases in which the complaint had been filed with the Superior Court.235 This expanding jurisdiction appears to be a departure from similar Ninth Circuit precedent, which the Third Circuit previously followed, that narrowed Ninth Circuit jurisdiction over pending cases in Guam.236 This departure seems to signal that the Third Circuit has not fully given up its temporary certiorari status. Keeping these trends—and the well-established Erie doctrine237—in mind, the Third Circuit and Virgin Islands Supreme Court may find it helpful to consider the following jurisdictional structure: the Virgin Islands Supreme Court retains jurisdiction over cases concerning local law while the Third Circuit retains jurisdiction over cases concerning purely federal issues. Likewise, in an effort to keep with the Third Circuit’s original precedent and the spirit of Congress’ goal of establishing a Virgin Islands Supreme Court as the final authority over territorial common law,238 the Third Circuit may contemplate retaining jurisdiction only over those cases in which a petition for writ of certiorari had been granted before December 28, 2012. This change also aligns with the Erie doctrine,
232. Banks v. Int’l Rental & Leasing Corp., 55 V.I. 967, 974–76 (V.I. 2011). 233. Kendall v. The V.I. Daily News, 716 F.3d 82, 86–87 (3d Cir. 2013). 234. In re Kendall, 712 F.3d 814, 821–22 n.3 (3d Cir. 2013). 235. Bason v. Gov’t of the V.I., 767 F.3d 193, 206 (3d Cir. 2014). 236. Compare Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 94 (3d Cir. 2010) (adopting the Ninth Circuit’s “manifest error” standard of review as it was established in Haeuser v. Dep’t of Law, 368 F.3d 1091, 1093 (9th Cir. 2004)) with Bason v. Gov’t of the V.I., 767 F.3d 193, 206 (3d Cir. 2014) (rejecting, implicitly, Santos v. Guam, 436 F.3d 1051 (9th Cir. 2006), where the Ninth Circuit held that it was without jurisdiction since an act ending the temporary certiorari review had been passed). 237. See supra Part VI(A) for an overview of the Erie doctrine. 238. See 48 U.S.C. § 1613 (2012) (stating that the VI Supreme Court should establish its own “sufficient institutional traditions”). 476 Stetson Law Review [Vol. 46 respecting the Virgin Islands Supreme Court’s domain over local law and the Third Circuit’s federal-law sphere. The second judicial relational issue concerns the jurisdiction between the Superior Court and the Virgin Islands Supreme Court and can be simply resolved. This relational issue concerns the Superior Court’s authority to reconsider cases involving the application of the Restatements after Banks.239 The Virgin Islands Supreme Court has authorized the Superior Court to reconsider pre-Banks decisions now that the Restatements are not binding law.240 However, the Superior Court’s reconsideration authority appears to be limited to pre-Banks decisions only.241 By looking at the relationship between the Third Circuit and the Virgin Islands Supreme Court for guidance, it seems that the Superior Court may need the same level of explicit authorization to reconsider post-Banks decisions as the Third Circuit needed from the Virgin Islands Supreme Court to reconsider pre-2007 and post-2007 decisions.242 Respectfully, it may be suitable that the Superior Court limit itself to reconsidering only those cases that were decided before the Banks analysis was established—at least until the Virgin Islands Supreme Court explicitly says otherwise. Finally, the Virgin Islands Superior Court and the District Court’s disagreements over jurisdiction may potentially be resolved by relying on traditional application of the Erie doctrine. For instance, the Superior Court does not defer to the District Court; this is seen in Bryan v. Fawkes243 and Haynes v. Ottley.244 The lack of deference for local matters aligns squarely with the Erie doctrine, which states that local courts should resolve local matters.245 However, also in line with the Erie doctrine is the notion that federal courts should resolve federal issues.246 Following similar trends established by the Third Circuit and the Virgin Islands Supreme Court, a possible solution for resolving
239. Gov’t of the V.I. v. Connor, 60 V.I. 597, 605 n.1 (V.I. 2014). 240. Id. 241. Id. 242. See Defoe v. Phillip, 702 F.3d 735, 748 (3d Cir. 2012) (holding that the VI Supreme Court may reject pre-2007 cases interpreting local law); Gov’t of the V.I. v. Lewis, 620 F.3d 359, 364–65 n.5 (3d Cir. 2010) (stating that the VI Supreme Court may reject post-2007 cases interpreting local law). 243. 61 V.I. 416 (V.I. 2014). 244. No. ST-14-CV-0000486, 2014 WL 5548229, at *4 n.20 (V.I. Super. Ct. 2014). 245. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 246. Id. 2017] Trouble in Paradise? 477 the tension between the courts involves a compromise along local- federal lines, which was the intention of the 1984 Revised Organic Act amendments.247 The traditional application of the Erie doctrine suggests that the Superior Court owes little deference248 to the District Court concerning matters of local law; however, Erie doctrine application also suggests that the Superior Court should defer to the District Court on matters concerning federal law. Related, the District Court should defer to the Virgin Islands Supreme Court on matters of local law.249 This respectfully proposed compromise is also supported, in part, by the Third Circuit, which has noted that the District Court’s jurisdiction does not extend to local law matters.250 Through compromise, the jurisdictional confusion amongst the Virgin Islands Supreme Court and the Third Circuit, the Superior Court and the District Court, and the Superior Court and the Virgin Islands Supreme Court may be resolved. By providing a history of the Virgin Islands judicial system, the transformation of the system can be better understood. Also, by outlining the differing precedents established by these courts, their stances and the law of the area can also be comprehended. Relying on the trends established by the courts and certain notable observations, recommendations have been presented that aim to demonstrate a compromise between the autonomy of the Virgin Islands courts and the sovereignty of the relevant federal courts. While implementing these recommendations may take time, they may also provide a more predictable and harmonious judicial system for the United States Virgin Islands.
247. The 1984 Revised Organic Act amendments were intended to create a relationship between the Superior Court and the District Court that reflected the state court-federal court relationship. In re Moorhead, 27 V.I. 74, 84–85 (V.I. Terr. Ct. 1992). 248. The District Court was the sole VI trial court before the establishment of the Territorial—now Superior—Court, so its decisions on territorial law before the Territorial Court was established should be considered useful guidance (but not binding upon) the Superior Court. See Superior Court of the Virgin Islands, supra note 72 (providing a historical overview of the Virgin Islands judiciary as it relates to the establishment of the Superior Court). 249. Edwards v. Hovensa, LLC, 497 F.3d 355, 361–62 n.3 (3d Cir. 2007). 250. Id.