IN RE: LEROY RICHARDS Nominal Respondent, Hon. Ive A. Swan, Appellant
NO. 99-3234
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 31, 2000
213 F.3d 773
Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges.
On Appeal From the District Court of the Virgin Islands-- Appellate Division (D.C. Civ. No. 97-cv-00123) Honorable Raymond L. Finch and Honorable Thomas K. Moore, Judges of the District Court Honorable Edgar D. Ross, Judge of the Territorial Court* Argued: December 8, 1999 * Sitting by designation.
Opinions of the United States Court of Appeals for the Third Circuit
5-31-2000
In Re: LeRoy Richards
Precedential or Non-Precedential:
Docket 99-3234
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Recommended Citation
“In Re: LeRoy Richards” (2000). 2000 Decisions. Paper 117. http://digitalcommons.law.villanova.edu/thirdcircuit_2000/117
Filed May 31, 2000
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 99-3234
IN RE: LEROY RICHARDS Nominal Respondent, Hon. Ive A. Swan, Appellant
On Appeal From the District Court of the Virgin Islands-- Appellate Division (D.C. Civ. No. 97-cv-00123) Honorable Raymond L. Finch and Honorable Thomas K. Moore, Judges of the District Court Honorable Edgar D. Ross, Judge of the Territorial Court*
Argued: December 8, 1999
Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges.
(Filed May 31, 2000)
LEON A. KENDALL, ESQUIRE, (ARGUED) General Counsel Territorial Court of the Virgin Islands Alexander Farrelly Justice Center P.O. Box 70 St. Thomas United States Virgin Islands 00804
Counsel for
_________________________________________________________________
* Sitting by designation.
A. JEFFREY WEISS, ESQUIRE A.J. Weiss & Associates 9618 Estate Thomas Tramway Building No. 2, Suite 1
Counsel for Appellee Leroy Richards
IVER A. STRIDIRON, ESQUIRE Attorney General PAMELA R. TEPPER, ESQUIRE Solicitor General MAUREEN P. CORMIER, ESQUIRE (ARGUED) Assistant Attorney General Office of the Attorney General of the Virgin Islands Department of Justice 48B-50 Kronprindsens Gade GERS Building, 2nd Floor Charlotte Amalie, St. Thomas United States Virgin Islands 00802
Counsel for Appellee Government of the Virgin Islands
OPINION OF THE COURT
BECKER, Chief Judge.
After the Government of the Virgin Islands had brought criminal charges in the Territorial Court of the Virgin Islands against Leroy Richards for sexual misconduct, the Attorney General attempted to exercise the traditional common law power of nolle prosequi and moved to dismiss. However, the Territorial Court, suspicious of the Government‘s motives, resisted and scheduled a hearing to explore further the underlying facts. Before that hearing could be held, but after the submission of an affidavit from the original complainant indicating her desire to terminate the matter, Richards sought a writ of mandamus from the Appellate Division of the District Court of the Virgin Islands, seeking to compel the Territorial Court to dismiss the charges against Richards. The District Court granted the writ, concluding that the local court rule under which the Territorial Court pursued the hearing violated the
The appeal presents several important questions of judicial governance in the Virgin Islands. First, does the District Court have mandamus jurisdiction over the Territorial Court? We conclude that it does. The local legislature, acting under the authority granted it by the ROA, has extended appellate jurisdiction to the District Court over criminal matters other than those resolved by guilty plea. The jurisprudence is clear that jurisdiction to issue writs of mandamus lies in cases where potential jurisdiction exists, as it does here. Moreover, both local statute, see
Having cleared the jurisdictional hurdle, Richards next faces the challenge of establishing that the Territorial Court exceeded its authority in scheduling a hearing on the matter of Richards‘s prosecution rather than promptly dismissing it as requested by the parties. We conclude that Richards has not met this burden. The Territorial Court offers two procedural rules to justify its conduct. The first justification, reliance on Local Rule 128(b), which precludes dismissal of criminal cases absent a judicial finding that the dismissal is in good faith, in the public interest, and in the interests of justice, fails because the rule explicitly allows the local court to substitute its judgment for that of local prosecutors in deciding which cases should be prosecuted. Because this judgment is reserved to prosecutors under the old common law power of nolle prosequi, Rule 128(b) is a substantive rule of law rather than a procedural rule that the local court is authorized to promulgate under the ROA. While the Virgin Islands legislature may enact such a rule, the local court may not, making Rule 128(b) a violation of the separation of powers among the three branches of government of the Virgin Islands as delineated by Congress.
The local rules of the Territorial Court apply the Federal Rules in circumstances in which there are no valid rules to the contrary, and hence the Territorial Court‘s actions may possibly be justified by
In this case, the Territorial Court did not deny the motion to dismiss but merely scheduled a hearing. In light of a court‘s ability to use I. In October 1995, Richards was charged by information with the felony of second degree rape under On May 21, the Government filed a new complaint, arising out of the same incident, that contained only the misdemeanor charge. At arraignment on the new complaint, Richards attempted to enter a plea of guilty. The presiding judge, Territorial Court Judge Brenda Hollar, became aware of the parallel case pending before Judge Swan. Displeased with what she perceived to be judge shopping, she referred the matter to Judge Swan. On the same day, the Government filed a motion requesting that Judge Swan dismiss the original charges because the Government lacked the ability to prove all the elements beyond a reasonable doubt. Several weeks later, the Government moved to dismiss the newer (misdemeanor only) charge as well. On June 12, Judge Swan held a hearing at which the prosecutor requested that the charges be dropped in the “interests of justice.” Judge Swan refused to do so without first examining the purported victim and prosecutors, though he indicated that if the victim made clear that she did not want the case to proceed and was aware of the Government‘s plans to drop the case, he would end the matter. He also expressed concern with the seriousness of the crime charged and about what he perceived to be the Government‘s attempt to circumvent his refusal to accept the earlier plea agreement. Judge Swan scheduled a hearing for July 17. On June 18, the Government and Richards filed a joint motion to dismiss that reiterated the prosecutor‘s conclusion that the case lacked merit. The motion was accompanied by supporting affidavits from the purported victim and her mother that made clear that they did not wish the case to be prosecuted and that the purported victim would not testify against Richards. On July 2, Richards moved to stay the July 17 hearing and to dismiss the case. He also claimed that the original facts, as alleged, had been determined to be false. The Government‘s response, filed on July 14, concurred with Richards‘s motion and On July 15, 1997, the Territorial Court promulgated a new local rule that amended Local Rule 128 to include new subsections (b) and (c). These amendments empowered the Territorial Court to refuse to dismiss cases unless the local court determined that the dismissal is “in good faith, in the public interest, and in the interest of justice.” Also on July 15, Richards filed a petition in the District Court of the Virgin Islands for a writ of mandamus and for a stay of the July 17 hearing. The District Court granted the stay the next day. On March 19, 1998, the Appellate Division of the District Court heard argument. Eleven months later, the court granted the writ and ordered the counts against Richards dismissed. It also declared the new Territorial Court Rule 128(b) to be null and void, holding that the Territorial Court had exceeded its rulemaking authority when it promulgated Rule 128(b). The Court concluded that the executive branch in the Virgin Islands has exclusive control of the prosecutorial function and that by transferring discretion over the termination of prosecutions to the local court, Rule 128(b) was a substantive rule that was disallowed by the ROA, which allows local courts to promulgate only procedural rules. The District Court also rejected the alternative argument that the refusal to dismiss could be justified by Our jurisdiction is based on II. Determining whether the Appellate Division of the District Court possessed the jurisdiction to issue the writ in the first instance requires three levels of analysis. We must first consider whether the District Court has the requisite jurisdiction over the Territorial Court to sustain the exercise of mandamus power. If so, we need to decide whether it possesses the statutory authority to issue writs of mandamus. Finally, we must determine whether the issuance of a writ of mandamus comports with the ROA‘s dictate that the relations between the District Court and the Territorial Court reflect those between federal and state courts. A. Courts established by the Congress have authority to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The Territorial Court, appearing here through Judge Swan and represented by the Court‘s General Counsel, contends that the District Court lacked subject matter jurisdiction to issue the writ. More specifically, because Richards was never convicted, it maintains that the District Court lacked potential jurisdiction and, consequently, the ability to issue a writ in aid of non-existent jurisdiction. We disagree. Appellate courts have the power to issue writs of mandamus prior to the filing of appealable orders when the conditions requiring the writ exist. Cf. Helstoski v. Meanor, 442 U.S. 500, 506-08 (1979) (mandamus does not lie when direct appeal is available); Pennsylvania v. Newcomer, 618 F.2d 246, 249 (3d Cir. 1980) (declaring mandamus should be avoided when appeal is available through collateral order doctrine). Indeed, the mandamus power would mean little if it could not be invoked until the filing of an appealable order. Were that so, litigants would rely exclusively on the right to appeal, and mandamus power would be superfluous. More specifically, jurisdiction to issue writs of mandamus under Though mandamus is usually difficult to obtain, courts sitting in their appellate capacity have heard mandamus petitions filed by defendants over pretrial criminal proceedings. See, e.g., Hilbert v. Dooling, 476 F.2d 355, 362 (2d Cir. 1973) (en banc) (employing mandamus to compel district court to dismiss indictment); 16 Wright, Miller, & Cooper, Federal Practice and Procedure S 3936.1 (2d ed. 1996) (collecting cases). Once jurisdiction is established, the ability to issue writs in aid of potential appellate jurisdiction sweeps broadly. “The power to issue such writs in aid of our potential appellate jurisdiction comprehends our responsibility for the orderly and efficient administration of justice within the circuit.” New York v. U.S. Metals Ref. Co., 771 F.2d 796, 801 (3d Cir. 1985) (quoting Rodgers v. U.S. Steel Corp., 508 F.2d 152, 161 (3d Cir. 1975)). The Territorial Court suggests that such authority should be curtailed in this case, given the District Court‘s inability to prescribe rules of practice and procedure for the Territorial Court and its inability to regulate the admission of attorneys to the Virgin Islands bar. As important as these functions are, we do not consider them as relevant to the question at hand as the District Court‘s main role with respect to the Territorial Court, that of hearing appeals. It is this authority that gives rise to the mandamus power, not the authority referred to by the Territorial Court. In sum, the District Court had potential appellate jurisdiction over the case as B. The next question is whether the District Court, as a non-Article III court, had the statutory authority necessary to issue a writ of mandamus in light of the structure established by the Revised Organic Act. The issue seems quite straightforward insofar as the Virgin Islands legislature plainly intended to extend all writs power to the District Court. See The Territorial Court contends, however, that the Virgin Islands legislature lacked the authority to extend all writs power to the District Court. This argument is based on the fact that the ROA only permits the legislature to prescribe the District Court‘s appellate jurisdiction. See The thrust of the Territorial Court‘s objection, that all writs power in aid of the appellate power is not synonymous with the appellate power and therefore requires an independent statutory basis, carries surface appeal. We note in this regard that we have been reluctant to recognize extensions to the District Court by the Virgin Islands legislature of powers not explicitly permitted by the ROA. See Moravian Sch. Advisory Bd. of St. Thomas v. Rawlins, 70 F.3d 270 (3d Cir. 1995) (holding, in light of Federal Rule of Civil Procedure that required dismissal and absence of authority in ROA, district court lacked power to transfer power case improperly filed in District and not Territorial Court notwithstanding authorization by the territorial legislature). We need not, however, grapple with this issue. Whether appellate power inherently includes mandamus power, is irrelevant to the outcome, for Congress has granted all writs authority to all courts “established by Act of Congress.” The law makes no distinction between Article III courts and those with jurisdiction over territories that are established pursuant to Congress‘s authority under Article IV S 3 of the Constitution. We discern no reason to doubt that the All Writs Act means what it says, and therefore applies to all courts established by Congress, even if they are not of the Article III variety. This conclusion is not mere intuition. In an analogous setting, the Supreme Court has declared that military courts have all writs power because they are courts created by congressional statute. See Noyd v. Bond, 395 U.S. 683, 695 n.7 (1969).1 The same has been held of the _________________________________________________________________ title 28 which limits the term `all courts established by Act of Congress’ to Article III courts or specifically excludes the Court of Veterans Appeals. On the contrary, when Congress wishes to specify a subset of courts, it does so explicitly.“). Similarly, the Court of Appeals for the Ninth Circuit has recognized that the appellate division of the District Court of Guam has authority to issue a writ of mandamus to the Guam Superior Court under the All Writs Act. See Apusento Garden (Guam), Inc. v. Superior Court of Guam, 94 F.3d 1346, 1349 (9th Cir. 1996) (citing Cruz v. Abbate, 812 F.2d 571, 573 (9th Cir. 1987)). In sum, it is clear that the Appellate Division of the District Court of the Virgin Islands has the power to issue writs of mandamus when it possesses the requisite appellate jurisdiction. C. The final alleged barrier to the District Court‘s mandamus jurisdiction raised by the Territorial Court emerges from the ROA‘s mandate that relations between the District Court and the Territorial Court mirror that between federal and state courts. The ROA states: The relations between the courts established by the Constitution or laws of the United States and the courts established by local law with respect to appeals, certiorari, removal of causes, the issuance of writs of habeas corpus, and other matters or proceedings shall be governed by the laws of the United States pertaining to the relations between the courts of the United States, including the Supreme Court of the United States, and the courts of the several States in such matters and proceedings . . . . The Territorial Court argues that because federal courts generally cannot issue mandamus orders to their state counterparts, see In re Grand Jury Proceedings, 654 F.2d 268, 278 (3d Cir. 1981), the District Court could not visit a mandamus order upon the Territorial Court. This argument is unpersuasive. As explained supra in Part II.A, the jurisdiction to issue writs of mandamus to another court exists when a court has potential appellate jurisdiction. While in the ordinary course of events, federal courts (except for the Supreme Court) lack appellate jurisdiction over their state counterparts, thus making writs of mandamus generally inappropriate, the relationship between the District Court of the Virgin Islands and the Territorial Court of the Virgin Islands differs from that between a federal and state court in one key respect--until the Virgin Islands legislature creates a local appellate court, the District Court has appellate jurisdiction over the Territorial Court. Because mandamus lies in aid of potential appellate jurisdiction, the District Court can issue a writ of mandamus to the local court notwithstanding the ROA‘s command that their relations be those of state and federal courts. Any lingering doubt in this regard is resolved by precedent from the United States Supreme Court. That federal court also has appellate jurisdiction over the state courts. Consistent with this jurisdiction, the Supreme Court has permitted the filing of writs of mandamus against state courts. See General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978) (granting leave to file For these reasons, we are satisfied that the District Court had the requisite jurisdiction necessary to issue a writ of mandamus to the Territorial Court. We now turn to the question whether the writ was properly granted. III. Given their extraordinary character, writs of mandamus are not to be issued lightly. “[O]nly exceptional circumstances amounting to a judicial `usurpation of power’ will justify the invocation of this extraordinary remedy.” Citibank, N.A. v. Fullam, 580 F.2d 82, 86 (3d Cir. 1978) (quoting Will v. United States, 389 U.S. 90, 95 (1967)). “The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 308 (1989) (quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943)). Therefore, only clear errors of law that “at least approach the magnitude of an unauthorized exercise of judicial power, or a failure to use that power when there is a duty to do so” require the writ. Lusardi v. Lechner, 855 F.2d 1062, 1069 (3d Cir. 1988). A. The contention that the Territorial Court usurped power in not dismissing the charges against Richards is founded on the venerable common law doctrine of nolle prosequi. Under this doctrine, prosecutors have the power to decide whether to proceed with the prosecution of a charged defendant. Absent a controlling statute or rule to the contrary, this power resides solely in the prosecutor‘s hands until the impanelment and swearing of a jury. See 21 Am. Jur. 2d S 779 (1998). This common law power of prosecutors had long been the rule in federal courts. For example, in Confiscation Cases, 74 U.S. (7 Wall.) 454, 457 (1868), the Supreme Court declared: Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empaneled for the trial of the case, except in cases where it is otherwise provided in some act of Congress. We discuss the impact the promulgation of The Territorial Court argues that substantive common law does not govern the issuance of dismissals in the Virgin Islands. Our analysis of the Territory‘s laws and precedents persuades us otherwise. In the absence of superseding rules to the contrary, the common law prevails in the Virgin Islands. See _________________________________________________________________ The Territorial Court rejoins that Judge Swan‘s conduct was justified by Local Rule 128(b) and, alternatively, B. On July 15, 1997, prior to the District Court‘s stay of Judge Swan‘s hearing, the Territorial Court amended local Rule 128 to include subsection (b), which states: No criminal case filed in the court, including traffic citations, shall be dismissed upon motion by any party except upon a determination by the Court that the dismissal is in good faith, in the public interest, and in the interest of justice. The Territorial Court submits that Rule 128(b) justifies Judge Swan‘s conduct in not dismissing the charges and in scheduling the July 17 hearing. The Government responds that Rule 128(b) exceeds the Territorial Court‘s power under the ROA. This argument demands contemplation of the lines separating substance from procedure and the legislative from the judicial. The ROA provides that “[t]he rules governing the practice and procedure of the courts established by local law. . . shall be governed by local law or the rules promulgated by those courts.” As discussed above, see supra Part III.A, at common law the power of prosecutors to determine whether to try a defendant prior to the impanelment of a jury bordered on the absolute. Under both statute and precedent, that would appear to be the rule that holds in the territory. See To be sure, the line separating procedure from substance is often unclear. “The test must be whether a rule really regulates procedure,--the judicial process for enforcing rights and duties recognized by substantive law . . . .” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Rule 128(b), however, does not enforce a right or duty recognized by substantive law, but rather transfers discretion that was _________________________________________________________________ once wielded by the local prosecutor into judicial hands under novel standards promulgated in Rule 128(b) itself: the court must determine that dismissal “is in good faith, in the public interest, and in the interest of justice.” In other words, the rule‘s standard of judgment does not look to preexisting rights and duties that Rule 128(b) may have been designed to enforce. Rather, it looks to the judgments of the same court that promulgated the rule. The Territorial Court thus seeks to expand its own power at the expense of local prosecutors. This it cannot do, and the District Court properly held Rule 128(b) to be void. C. Because Rule 128(b) is a nullity, Territorial Court Rule 7, which applies the Federal Rules of Criminal Procedure to cases in which there is no local rule to the contrary, points us to Like Rule 128(b), The Territorial Court contends that even if the common law practice of nolle prosequi has been the substantive common law of the Virgin Islands, it has been displaced by past practices to the contrary (as reflected by District Court‘s use of Though recognizing the common law background, we must acknowledge the force of the argument that _________________________________________________________________ procedure that have been applied by the courts since the passage of the REA, enjoys an arguable presumption of regularity as a procedural rule. Moreover, the Territorial Court conceded at oral argument that there is likely little a court can do to compel action even if it denies a Yet The upshot is that We need not, however, engage the full expanse of Though this Court has not ruled on the standards that should be employed in determining whether a judge abuses his or her discretion in denying a motion under While [ Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (per curiam) (citations omitted). The jurisprudence in the courts of appeals has not been significantly clearer, save for the proposition that refusal to dismiss is appropriate only in the rarest of cases. As one of our sister courts has summarized: United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir. 1985). The concern of prosecutorial harassment speaks to the danger that a prosecutor will engage in a cycle of levying and dismissing charges against a particular defendant. The other concerns are harder to describe. Courts have equated a dismissal that is clearly contrary to the public interest with one in which the prosecutor appears motivated by bribery, animus towards the victim, or a desire to attend a social event rather than trial. See Hamm, 659 F.2d at 630. But Judge Swan‘s concerns in this case were not of an unfairly harassed defendant. Rather, his suspicions appear to have been aroused by the Government‘s shift in position as to the merits of Richards‘s prosecution after Richards switched from a public defender to private counsel. These suspicions were compounded by the Government‘s perceived attempt at judge-shopping.7 If one adheres to the view that The question before us under the circumstances, therefore, is not whether Judge Swan could properly have used his power under The Government contends that Judge Swan made clear that he would not dismiss the matter unless he independently reached the conclusion that the initial allegations were untrue, and that he was, therefore, substituting his judgment for that of the prosecutor. We do not, however, view a judge‘s statements in the course of proceedings as a final determination of a motion. How the judge initially perceived the case is irrelevant to the question whether he had issued an appealable order. While Judge Swan‘s comments may have been premature and perhaps reflected an overestimation of his authority (along with his irritation with the Government), the facts clearly demonstrate that he had not ruled on the Government‘s motion when the writ of mandamus was filed. We conclude that a court should have the opportunity to consider and issue its order before a mandamus petition is filed. By granting first a stay of the scheduled hearing and then issuing a writ of mandamus, the District Court deprived Judge Swan of the opportunity to issue a ruling. On the facts before us, therefore, application of Even though a judge‘s discretion under Additionally, the public has a generalized interest in the processes through which prosecutors make decisions about whom to prosecute that a court can serve by inquiring into the reasons for a requested dismissal. See United States v. Cowan, 524 F.2d 504, 512-13 (5th Cir. 1975) (“We think [ In sum, we are not prepared to rule that a judge who suspects wrongful behavior in the proceedings of the individuals before it has no power to inquire into what the true circumstances are. Rather, a “sunshine” rule that requires prosecutors to disclose the reasons for their actions and allows limited additional inquiry is sufficiently procedural that it does not run afoul of the dictates of the ROA. Any doubt in this regard would seem to be resolved by the fact that, as discussed above, Judge Swan had no apparent power to force the Attorney General to proceed with a prosecution of Richards. For all the foregoing reasons, we conclude that the District Court erred in granting the writ of mandamus. Therefore, its order granting the writ will be reversed, with instructions to remand the case to the Territorial Court for further proceedings consistent with this opinion. The parties shall bear their own costs.9 GARTH, Circuit Judge, dissenting: The majority opinion in the instant matter has much to commend it, as it presents a detailed and masterful analysis of an extremely complex area of law. Indeed, I concur with the majority‘s conclusion (1) that the Appellate Division of the District Court of the Virgin Islands possessed the authority to issue a writ of mandamus against the Territorial Court of the Virgin Islands; and (2) that Territorial Court Rule 128(b) violates the Revised Organic Act (ROA). I part company with the majority opinion, however, with respect to its bottom line: its overly-ingenious interpretation that As a result, The ROA empowers “the courts established by local law” (i.e., the Territorial Court of the Virgin Islands) to prescribe their own “rules governing practice and procedure.” [n]o criminal case filed in the court . . . shall be dismissed upon motion by any party except upon a determination by the Court that the dismissal is in good faith, in the public interest, and in the interest of justice. The Appellate Division of the District Court of the Virgin Islands held this rule to be void. See In re Richards, 52 F. Supp. 2d 522, 528-29 (D.V.I. 1999). That court also held that the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate, could not be applied in the Territorial Courts of the Virgin Islands, notwithstanding the effect of Territorial Court Rule 7.2 Id. at 529-30. The Appellate Division premised this holding on the fact that, pursuant to the ROA, any rule promulgated or adopted by the Territorial Court, including Rule 7, must be procedural, and not substantive, in nature. See id. at 528-30. The majority in the instant case, as opposed to my view, holds that The difference between rules that are “substantive” and cannot be promulgated or adopted in the Virgin Islands and those that merely regulate “practice and procedure” must initially be explored. The starting point for this inquiry must be the Supreme Court‘s watershed decision in Sibbach & Co. v. Wilson, 312 U.S. 1 (1941).3 In Sibbach, the Court held that As numerous commentators have indicated, however, the Sibbach test alone is of little help in determining whether a given rule is procedural or substantive in nature. See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction, § 4509, at 264 (stating that the Sibbach formula “is no test at all -- in a sense, it is little more than the statement that a matter is procedural if, by revelation, it is procedural“). As a result, in order to derive a proper standard to delineate between procedure and substance, something must be added to the Sibbach Court‘s analysis. Hart and Wechsler, the oft-cited civil procedure scholars, have opined that substantive rules are those that “characteristically and reasonably affect people‘s conduct at the stage of primary private activity.” Hart & Wechsler, The Federal Courts & the Federal System 678 (1953); see also Paul D. Carrington, “Substance” and “Procedure” in the Rules Enabling Act, 1989 Duke L.J. 281. With this understanding of the procedure vs. substance “dichotomy,” I am satisfied that both Rule 128(b) and As the majority acknowledges, both Rule 128(b) and The nolle prosequi tradition goes to the very heart of the prosecutorial role and function. As such, any restriction on the prosecutor‘s right of nolle prosequi would necessarily enter the substantive arena, and thus not be available for regulation by the Territorial Court. Given that such interference with a prosecutor‘s discretion “transfers discretion that was once wielded by the local prosecutor into judicial hands,” Majority Op., at 17-18 (emphasis added), it is obvious that both rules must be deemed substantive. The majority, which holds that Rule 128(b) is substantive, but that The majority first attempts to justify its inconsistency in characterizing identical rules differently by explaining that Rule 128(b), unlike Building upon this purported lack of standards, the majority then fashions its own interpretation of As an initial matter, although the majority is correct that the express terms of Perhaps the most extensive treatment of As such, each of the so-called “substantive standards” identified by the majority as contained within Rule 128(b) and ostensibly missing from the provisions of The majority‘s self-avowed purpose that it attributes to If The majority therefore is plainly incorrect is its novel assertion that the Supreme Court intended Moreover, I also believe that the majority‘s “Sunshine” interpretation of As stated above, the very essence of the common law right of nolle prosequi was that the prosecutor enjoyed absolute control over the course of a specific prosecution. Although most of the preceding discussion is framed in terms of the ultimate decision as to whether to prosecute a particular offender at all, included within this broad power are a multitude of prosecutorial decisions bearing on the institution and maintenance of criminal proceedings. As an example, once a prosecutor is confronted with alleged wrongdoing on the part of a purported defendant, the prosecutor must determine under which statute(s) to seek criminal sanctions, and the The facts of the instant matter demonstrate this problem. The Government of the Virgin Islands initially filed -- via an information -- a felony rape charge against Richards in the Territorial Court, and then amended that information to include a misdemeanor charge. The Government thereafter agreed to allow Richards to plead guilty to the misdemeanor charge in return for dismissal of the felony charge. Judge Swan refused to allow the Government to dismiss the felony charge. After this initial refusal, however, Judge Swan scheduled a hearing to determine whether such a dismissal was consistent with the “public interest.” This “public interest” hearing would have been no different from the novel “Sunshine” hearing now advocated by the majority. Indeed, because of the prospect of such a hearing, the Government disclosed that it sought a dismissal of the felony charges because the evidence did not support a felony conviction. The government also claimed that the primary witnesses against Richards (the alleged victim and her mother) would not testify. With this information revealed, it would surprise me if Richards were to continue to plead guilty to the misdemeanor charge, particularly because he now has been informed that the two main witnesses who could implicate him will not provide any assistance to the Government in its prosecution. As a result, Judge Swan‘s “public interest” hearing, much like the “Sunshine” hearing the majority now urges upon us, essentially forced the Government to play out its hand and disclose information that it normally would seek to keep confidential.5 Indeed, the simple knowledge on the part of the prosecutor that such a hearing would be held if he were to seek dismissal of a defendant‘s charges could not help but impact the manner by which the prosecutor would conduct the course of the criminal litigation. In other words, the allegedly innocuous “Sunshine” hearing could irreparably impair day-to-day prosecutorial decisionmaking. The ability to hold such a hearing under the auspices of I have gone to great lengths to point out that in an effort to save The Appellate Division of the District Court of the Virgin Islands was quite correct A True Copy: Teste: Clerk of the United States Court of Appeals for the Third Circuit
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Id. 1. The majority termsSince the All Writs Act applies by its terms to any `courts established by Act of Congress,’ and since the Revisers of 1948 expressly noted that `[t]he revised section extends the power to issue writs in aid of jurisdiction, to all courts established by Act of Congress, thus making explicit the right to exercise powers implied from the creation of such courts,’ we do not believe that there can be any doubt as to the power of the Court of Military Appeals to issue an emergency writ of habeas corpus in cases . . . which may ultimately be reviewed by that court. A different question would, of course, arise in a case which the Court of Military Appeals is not authorized to review under the governing statutes.
Tonkin, 349 F.Supp. at 81-82 n.9 (citing Justice Traynor in People v. Sidener, 375 P.2d 641, 642, n.4 (Cal. 1962)). 2. Territorial Court Rule 7 provides that “[t]he practice and procedure in the Territorial Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence.” Terr. Ct. R. 7.An incident related in 2 Campbell‘s Lives of the Chancellors 173 is of interest in this connection. After he had ordered the imprisonment of a group of fanatics called “Prophets” for seditious language, Lord Holt was visited by Lacy, one of their friends, who informed a servant that he carried a message “from the Lord God.” Lacy was admitted and told Lord Holt: “I come to you a prophet from the Lord God, who has sent me to thee, and would have thee grant a nolle prosequi for John Atkins, his servant, whom thou has cast into prison.” Lord Holt replied: “Thou art a false prophet, and a lying knave. If the Lord God had sent thee it would have been to the Attorney-General, for He knows that it belongeth not to the Chief Justice to grant a nolle prosequi; but I, as Chief Justice, can grant a warrant to commit thee to bear him company.”