*1 MACKAY; SMITH; KATHLEEN ALAN D. CHRISTIAN; WEATHERLY BARBARA ADAM G. BAR CO.; VIRGIN ISLANDS ASSOCIATION DE VOS & v. MAGRAS, and in his Individually CLEMENT Of Of Licensing as Comm. Dept. Capacity Affairs Consumer MAGRAS *GOVERNMENT OF CLEMENT & ISLANDS, Appellants THE VIRGIN to Rule 12(a), F.R.A.P.) *(pursuant
No. 96-7660 for the United Court Third Circuit Appeals States 14, 1997 August *3 General), (Attorney A. Paul L. Brady, Esq., Gimenez, Esq., Julio (Solicitor General), (Assistant and Frederick Handleman, Esq., General), Thomas, U.S.V.I., Attorney Appellants St. for and Adam and (Hodge G. Francois, Christian, Esq., Esq., Denise Francois), Thomas, U.S.V.I., Appellees St. for BECKER, WEIS,Judges ROTH and
OPINION OF THE COURT BECKER,
The Virgin legislature Islands has enacted a business in pursuant every person "wishing engage any scheme to which to business, trade" in the occupation, profession or listed statute is obtain a and an annual fee. V.I. required pay to license license Code. 301(a) (1997). 27, tit. One the is listings "Attorney," for Ann. which the annual fee Seeid. 302. The question presented $500. is fee appeal paid by this is whether the license must be income) (and employees. firm is as law attorneys practice whose sole to and of sole practitioners of law firm partners The obligation unquestioned. the fee is pay a license and obtain the Virgin who members of attorneys are plaintiffs are four Bar, firm, Association Virgin the Islands Bar a law and Islands 1992,defendant Clem- September “the In (collectively, plaintiffs"). Department Islands Virgin the ent Commissioner of Magras, ("Commissioner"), informed the and Consumer Affairs Licensing license from to obtain a business they required were plaintiffs After Virgin law the Islands. practice in order to department his matter, the the which failed to resolve correspondence some Virgin Islands. Court the brought suit Territorial plaintiffs fees; the the against collection of injunction That court issued an the Court of Division of District Appellate that, under Courts concluded affirmed. The Territorial District scheme, runs to only to obtain license statutory obligation for work. partners of the firm which non-owner reading this on its panel grounded interpretation The appellate interpre- historical statutory on the Commissioner's language; deference; statute, gave some apparently tation to which it to licensing provisions application and on its belief that view of the sanctions available attorneys might, in non-owner fees, somehow of the license non-payment the Commissioner for of law. practice power regulate trench of the courts upon to no susceptible clear statutory language quite Finding whether or not em- attorneys, than that all interpretation other fee, others, we requirement the license subject are ployed *4 interpre- reach the administrative reverse. We therefore need not that reject argument the summarily plaintiffs' tation We also issue. all would scheme to licensing the of the application Further, the concession given Equal violate the Protection Clause. under employ power his the that he would not by Commissioner in judiciary's the role to interfere with licensing scheme attorneys, of competence professional conduct regulating threatened action of or given any pending the absence difficulty interference, with the we little have might involve such power of infringes contention that the scheme power discussing course regulate courts the bar. In the to bar, hold, time, the courts regulate we for the first that the principle separation powers applies to the coordinate government. branches of the
I. THE LICENSING STATUTE Consideration of the contentions parties requires we set forth the relevant text of 301 and 302. It is §§ as follows: forms; 301.Licenses required; applicаtion qualifications
and limitations
(a) Every person or wishing association in engage business, any occupation, profession, or trade listed in section chapter, 302 of this as a precedent condition business, engaging any in such occupation, profession, or trade, shall in apply writing to and obtain from the (re- Licensing Commissioner of and Consumer Affairs ferred to as the "Commissioner" in the remainder of this chapter) license to engage or to conduct such business, occupation, profession or trade.
(b) Applications for licenses under this chapter shall be made on prescribed forms furnished the Commis- sioner. As of or in part connection with any application the applicant shall furnish information concerning his identify, personal history, record, experience, business purposes, any record of conviction any offense which is a felony or crime involving turpitude moral juris- occurred, diction where the offense and any perti- other nent facts that the Commissioner may reasonably require.
In the corporations case of partnerships preced- ing requirements shall be applicablе to all of the share- holders or . . . partners.
(c) If is a applicant or a partnership corporation, the member, officer, application shall designate each or em- ployee who will exercise the powers to be conferred by upon license such partnership or corporation. The member, may Commissioner require any such officer or *5 required the information him with to furnish employee (b) of this section. under subsection applicants Same; business, professions occupations, 302. covered; fees trades
(a) made appli- license fees are following The annual all associ- upon persons be levied cable to and shall businesses, occupations, in the engaged designated ations of the United Virgin Islands and trades professions States: [$] 500
Attorney discussion. We our provisions throughout We will refer to these an appendix. in 302 as attach the schedule contained also HISTORY; THE APPELLATE PANEL II. PROCEDURAL
OPINION 1992, letters to the issued the Commissioner September In busi- were to obtain they required them that informing plaintiffs The licensing statute. Virgin to the pursuant ness licenses part- that, law firms whose employees as plaintiffs responded licensed, was no require- there were properly ners or shareholders requested individually. plaintiffs they ment that be licensed followed, in the Com- culminating correspondence hearing. More not in plaintiffs names of the publish missioner's threats the matter for and to refer with the statute compliance prosecution. criminal possible of the in the Territorial Court suit brought
The plaintiffs en- injunction permanent issued a The Territorial Court Islands. non- license fees from collecting from the Commissioner joining The Commissioner at law firms. attorneys who work owner appealed. Court, the Appellate the Territorial affirming
In the order of rendering from proceeded the District Court Division of *6 301(a), statute highlighted phrases. that certain words and In the § appellate panel "[e]very underscored or person association." In 301(b), "[i]n it stressed the that the provision corporations case of or partnerships preceding requirements shall be to applicable 301(c), And, all of the shareholders or partners." highlighted it following sentence: applicant If the a partnership is a or corporаtion, member, designate shall each application employee or officer, pozvers by whozvillexercisethe to be upon the license conferred partnership corporation. or Division). (emphasis by added Appellate The panel then stated: reasonable, only logical
The and consistent inference we draw the highlighted from words is the license is to itself, be to the granted partnership corporation or not to member, "each officer or employee who will exercise powers of the license."
The panel then turned to the interpretation given by the statute charged administrative agency with its The panel enforcement. looked to the form by distributed the Commissioner to all license which, alia, applicants, inter requests applicant to check off: OF "TYPE a ORGANIZATION" it is: sole proprietorship, 301(a) reflecting the word used in "person" subsections & (b) 302(a); a corporation, or a a joint partnership, venture, the word reflecting "association" in those same subsections.
In the Appellate view: Division's only employee mention of application's rеquest is the
for the total estimated number employees; it not does to require applicant these identify employees listing their positions. names None of the remain- and/or ing requirements application on the form any have rele- vance to the question whether can separate license fees be attorney- taxed to employees of law private firms. that, Magras's Commissioner prior also noted
The court letters, an required had not the Commission September license unless a business pay separate for and for attorney apply partnership interest in the law ownership an attorney had that, out pointed her. It also him or employed corporation occupation required an is listed as Agent" "Travel Ticket although agent license, a travel require does not department to obtain pay separate a travel agency employee as an working in a law attorney the non-owner analogized license fee. The court that the two a travel concluded agency to an employee firm *7 a court that non-owner similarly. opined treatеd The should be Rather, the court business. conducting a law firm is not attorney in firm, reasoned, working is on behalf of attorney a non-owner conducting business. which is licensing that the of provisions cautioned
Finally, the court decisions on licensing to base the Commissioner allowing scheme violated the of the licensee character or misconduct the moral effec- provisions Because such powers. of separation principle reasoned, Islands, the court attorneys in the tively regulated Commissioner, potentially, at least allowed the they impermissibly judiciary. of the under the exclusive control to in areas operate tracked the essentially have before us arguments The plaintiffs' addition, they apply- contend In position. division's appellate deny such attorneys would to non-owner licensing scheme ing so, submit, they laws. That is of the attorneys protection equal fee licensing required pay would be these because be would not employees other, situated similarly allegedly while required. so appellate of the the order appeals from
The Commissioner be language cаn plain that the argues division. The Commissioner apply licensing requirements that the only to mean interpreted alternative, any ambiguity and, in the attorneys, all with its charged agency in favor of the be resolved statute should case, which, that the statute determined in this interpretation, original jurisdic- had The Territorial Court attorneys. to all applies 76(a) 1994). (Supp. tit. to V.I. pursuant tion 4, Code Ann. from appeal jurisdiction had over Division Appellate (Supp. tit. V.I. Code Ann. pursuant Territorial Court 4, 1994). appeal Wehave over the of the order jurisdiction final 1613a(c). appellate pursuant division to U.S.C. § We a grant permanent injunction review for abuse of Union, Automobile,Aerospace discretion. SeeInternational United America, Trucks,Inc., AgriculturalImplementWorkers UAWv.Mack (3d 1987). 91, 820 F.2d Cir. "An 94-95 abuse of discretion exists where the district court's decision rests upon clearly fact, law, an erroneousfinding errant conclusion of or an improper Statutory of law Id. at application to fact." 95. construc tion is a we legal question, plenary over which exercise review. See Air Courier Comm.v. States United Postal America/Int'l Conference (3d 1992). Serv., 1213, Therefore, 959 F.2d 1217 & Cir. n.3 if, review, context of the after our present appeal, plenary we conclude that the Territorial erred Court as matter of law in statute, we interpreting may say that did not it act within its discretion in issuing permanent injunction.
III. DISCUSSION A. Professional Schemes General Licensing
Licensing schemes similar to that at issue not here are uncom- not, schemes, terms, mon. than More often these very their *8 apply attorneys. statewide, to Their form varies: some operate enactments; others are merely local some generate by way revenue fees, of others include that regulatory provisions govern conduct. Not there surprisingly, body is a substantial of state law governing Sweet, Annotation, such See arrangements. B. Validity David of Municipal Upon State or Tax or Occupation LicenseFee Practicing of (1986); Law, Buday A.L.R.4th 9 Beth A. Rozwadowski, & Julie (3d 26.128, Municipal Corporations 26.130 §§ McQuillin, The Law of 1995).Often, ed. attorneys to subject these will challenge schemes them grounds, on their numerous federal and basing challenges on state or statutory Although constitutional law. we have undertaken that, systematic study, no our indicаtes part, research for the most arrangements unobjectionable these are largely and are ordinarily approved by state courts. law,
Without
our own
attempting
synthesis
case
we offer
some representative examples of cases addressing such schemes.
1954),
(Pa.
an oft-cited
Sterling City Philadelphia,
v.
106A.2d
In
case,
of
ordinance
upheld city
a
Pennsylvania
Court of
Supreme
attorneys. In so
that
to
a
tax
applied
established mercantile
that
revenue-raising measure
pure
that a
court reasoned
doing, the
regulate
to
power
of the state courts
infringe
not
on
does
rights
a measure
not affect
attorneys because such
does
at
See id.
profession.
out his
carrying
of an
attorney
duties
law carries
practicing
of
privilege
It
further that "the
796-98. stated
including
citizenship,
it no
from the duties of
exemption
with
national, state
all
of
sharing
expense
government,
with
others
conclusion
reaching
Id.
796.
similar
at
Courts
municipal."
1990),
(Mont.
City
Smith,
Mire v.
v.
Sextonand Sharood Sweet, supra generally, infirm. are found See licensing schemes even routinely upheld, are contrary, 11-13.On the such schemes §§ law. based on state constitutional challenges in the face of *9 Language B. Plain of language the relevant by examining
We our begin analysis statutory for standard general Virgin statute. 473 is well not in here. interpretation dispute known and The "first a step interpreting statute is to determine whether the language plain
at issue and unambiguous meaning regard has a with to the Co., particular in the v. dispute case." Robinson ShellOil (1997). _ U.S. _, 843, so, 117 Ct. If S. our is at an end. inquiry See course, id. interpretation Of aof statute involves the examination of sense, the statute whole. Seeid. that as In we must endeavor to give each of the operative word statute effect. See Walters v. Metropolitan Enters., _ U.S. _, 661, Educ. S. Ct. (1997). words, In "[statutory other 'is a construction holistic Independent endeavor.'" UnitedStatesNat'l Bank Or. v. Ins. Agents, _ (1993) _, 2173, U.S. 113 S. (quoting Ct. United Assocs.,Ltd., SavingsAss'n Tex.v. Timbers Forest 484 U.S. of Inwood (1988)). 365, 371 view, In our the language of the statute in is dispute entirely " plain. [e]veryperson Section 301 requires wishing or association business, engage any occupation,profession, listed in trade section 301(a) (1997) 27, 302" to obtain license do so. V.I. Code Ann. tit. § added). (emphasis Section 302 states the license fee require- applicable persons ment is "made to and be all upon shall levied businesses, engaged designated associations occupations, added). professions (emphasis and trades." Id. "Attorney" § 302 is Therefore, listed in Seeid. plain 302. language § the statute unambiguously states that individual every practice who wishes to as an must attorney obtain a We license.1 believe the case to be that simple.
We also note the statute distinguishes between instances in which an is entity potentially to a subject license and those in which individuals,including are employees, potentially subject to a license (depending entity on whether the or individual "engaged is in" the listed For activity). example, because "[b]aby sitting service" is i.e., listed as an entity, in 302 the relevant licensee is the "service" itself, entity, only as an the service and not employees service, contrast, would be subject By to the requirement. The statute exempts attorneys who work for the principle (3d (1997). Cir. equal 1988). We have protection. earlier held See Hollar v. Government that the exemption See government. is valid and does not violate the Anw tit. Code V.I. Islands, 857 F.2d 163, 27, *10 individual, an each is in 302 as listed because § "[attorney" whether to the is individual licensing requirement, attorney subject circumstances, In certain the an or not. he she is or employee the and the a license of both also statute entity employees. requires and of "[bjarber a license of a For shop" example, requires § "[b]arber," each "[b]arber apprentice," temporary." "[b]arber drew short, the in distinctions that In the legislature the intended that require legislature strongly suggest § instances, of entities in of entities in some licenses employees others, still others.2 and of both entities By employees the to have term the legislature "[a]ttorney," appears employing as license individuals. intended to attorneys is to that this to the The argue response foregoing plaintiffs only the of other be reconciled with cannot language interpretation submit that the In statute. particular, they licensing provisions supra make it clear I) at other these part (highlighted provisions or or that settings, only corporation partnership corporate Because need obtain a license. and not employees, partnership, in a law firm are mere non-owner employees, attorneys non-owner these other reason exempt provisions plaintiffs We from the disagree. requirements. 301(b), to the second The first paragraph § plaintiffs point or must information which corporation partnership governs for a license. Under submit with an paragraph, application license, for a "all of or when partnership applies corporation submit certain information or must shareholders along partners" Id. 301(b). or with the application. § corporation's partnership's from "shareholders or information 301(b) Because only requires and non- that non-shareholders submit partners," plaintiffs from are altogether. licensing requirements partners exempt The second read too much into this provision. plaintiffs terms, its 301(b) only appli- very governs, by paragraph individ- It does not or cation govern corporations partnerships. at all. ual applications all statute against has enforced the licensing It unclear whether the Commissioner is events, impermis all a claim of requirements. its At may subject who be employees do not reach that issue. been raised and we selective enforcement has not sible
We note that requiring non-shareholders non-partners to submit information along corporation partnership with or for they whom work would make little sense. Such individuals have jure say governance no de of the applicant corporation *11 partnership, body so the have licensing should no interest in non-partners non-shareholders or when whether determining to a corporation qua corporation license or partnership partner- or ship. Excluding non-partners non-shareholders and from the re- 301(b), quirements then, paragraph second of merely § is recognition of the internal of partner- structures corporations That ships. says nothing exclusion about whether a non-share- or a holder need make non-partner his own for a application license. 301(c) however,
The plaintiffs, § read as their bolstering argu- 301(b). 301(c) ment as to the second of paragraph § Section that a requires corporation "designate or partnership each mem- ber, officer, or will the employee powers who exercise to be by conferred the license upon partnership such or Id. corporation." 301(c). designee Each may § then be required submit certain information with along application corporation or partnership. Seeid. The plaintiffs contend that this language does "member, officer, designated not mean that the or employee" is subject so, to the licensing requirements. may That be but the argument does not "advance the ball" in this Nothing case. in 301(c) member, officer, § states that "each or is not employee" to the subject licensing requirements.
Moreover, 301(b), 301(c) like the second paragraph of only § § applies to applications of corporations says or it partnerships; nothing And, about applications again of individual persons. like 301(b), 301(c) the second paragraph merely recognition § § is governance corporations in or partnerships. designated A "member, 301(c)'s officer, definition, employee," by or § will be exercising powerwithin Therefore, the corporation or partnership. the licensing "member, officer, body may have some interest in that or when employee" whether to considering corporation license the short, or partnership. In the fact that thе licensing body may 301(c) require designees to submit certain is simply information any other individ- designees, as to whether those inconclusive ual, licensing requirements.3 subject are would that our statute reading further claim plaintiffs it, every absurd result that individual they describe produce, as be subject Islands would every venture in employee incorrectly plaintiffs We believe the licensing requirements. to the noted, already of the statute. As we have reading characterize our statute, terms, not all employees its makes clear that very Further, whether an requirements. subject are depends on subject licensing requirement to the individual is ], "engaged designated is whether the individual business! (emphasis ](cid:127)" ] Id. profession! ], occupation! trade! added). then, here, is whether non-owner The issue it is “[attorney,“ clear “engaged profession are in“ the *12 303(a) in render meaningless also that our would argue interpretation 3The plaintiffs § 303(a) that the forward requires licensing body applica certain circumstances. Section with in Islands Virgin charged for licenses to the Government of the tions agencies can so that those examine preservation рrotection agencies historic and environmental 303(a). Because it would and site Id. acceptability." the for "construction application § with to the non-owner attorneys respect make little sense to review of applications are reason that non-owner plaintiffs attorneys and site the acceptability," "construction force, has argument any the To the extent that this subject requirements. not to licensing not, much. their By we it does it immaterial for it too totally proves think seems persons the numerous or apply the would not to reasoning, licensing requirements 302, associations, a even necessarily building in who not construct nor listed would § business, in their operate occupation, practice need a in which to their building engage If correct in their or their trade. the are profession, carry plaintiffs argument their out 303(a), none these would to of requirements apply about businesses, then the licensing § 303(a) a exempt person Section does not or trades. occupations, professions, she, he, or it is not simply because requirements association from the licensing or of siting building. with the concerned construction 303b(a) 303b(a) Section supports position. requires further that their argue The plaintiffs § Security the chapter notify Employment licensed to this shall "[ajny entity pursuant that Labor, to an now existing position, of of its intent fill Islands Agency, Virgin Department vacant, 303b(a). Id. unfilled previously position." or a new § vacant or soon to become the that anyone, plaintiffs in hire reason non-owner are no to attorneys position Because is This argument be to the licensing requirements. must not attorneys subject non-owner entities; terms, First, 303b(a) not to it does apply its to only applies by very § also flawed. Second, much. the of By reasoning too argument similarly proves the persons. individual businesses, 303b(a) professions, exempt occupations, the numerous would plaintiffs, § businesses, because these requirements. the licensing trades listed in 302 from § Just — — will be hiring any their nature not by very trades professions, or occupations, 303b(a) If requirements. from the exempts licensing mean them does not employees § businesses, 303b(a) occupations, professions, then these exemptions, did work such § would be read out of 302. trades § attorneys that the in beyond "engaged doubt non-owner are in" profession "[attorney." the Islands, practicing attorneys Virgin plaintiffs
As in the the must Virgin be active members of the Islands bar. SeeV.I. Terr. Ct. R. 305(b). bar, active Virgin plaintiffs As members the 306(a).Therefore, engaged must be law. id. at practice of See the fact that the plaintiffs practicing attorneys ineluctably are leads they to engaged being attorneys. the conclusion are in See (De. Didces, 789, Mayor Wilmington & Council v. 157 A.2d 1960)(classifying employee physicians carrying out as the medical (Ark. 272, v. profession); City Brinton Jonesboro,320 S.W.2d 1959) (classifying employee attorneys carrying as out the legal profession).4 This conclusion is not affected the fact that attorneys at issue in this case in attorneys are non-owner a law Further, firm.5 that non- owner at attorneys may law firms be "engaged "[attorney" in" the profession of does not determine fields, whether other employees, in other are "engaged in" listed business, occupation, profession, or trade.6 306, to in plaintiffs point language exemption for government attorneys, supra see 1, note for further support position. They their note that the section will not if apply individual is exempted pursuits the conduct of business V.I. "engaged profit." for 27, (1997). tit. such According plaintiffs, implies that language Code Axx. licensing applies scheme to the only entity business and not to because employees, it is the entity profits. business that is We such seeking believe language implies exactly opposite. If the scheme applied only to business entities and not there would be need employees, no for the the first exemption place; government attorneys are mere employees. 5We caution that our holding extends to those only non-owner of law firms who work in Virgin Islands and have been admitted Islands bar to practice *13 before the local courts the by regular admission rules. Our not holding does address attorneys those who have been pro admitted to the Islands bar Virgin hac viceor the by rules, Islands, admission special who do not work in the ordinarily or who have Virgin been in admitted the Islands to Virgin only practice before the District Court of the Virgin Islands. We do not reach the question whether such are attorneys "engaged in" in being attorneys the Virgin Islands. that, statute, The kernel Judge 302(b), of Weis' is argument particularly while the § force, (inconsistent) covers in seemingly virtually everyone the work the administration view, of the statute that negates counsels that employees are not covered. simply above, 2, As we noted have see note the of supra, matter selective enforcement is not note, however, before us. We do Judge that Weis reads too much the into catch-all As we understand the provision. person reference to in "[a]ny or association engaged business, a occupation, profession, or trade" not by listed or not covered other any Code, $100, this provision of who is obtain an annual to license at a fee of it deals with sum, renders it of the statute language the plain
In law firms.7 attorneys by employed to non-owner applicable Separation of Powers C. licensing the requirements that applying contend plaintiffs
The
They
of
separation
powers.
the
of
principle
would violate
to them
exclusive
Virgin
enjoys
branch of the
that the
argue
judicial
Virgin
law in the
practice
the
of
regulation
over the
of
control
regulatory
form
is itself a
licensing
Because the
scheme
Islands.
attorneys
continue,
control,
that scheme on
plaintiffs
imposing
the
thereby
to
agencies
regulate
allow executive
would
to the
particular
Of
concern
judiciary's
the
domain.
to encroach on
that
statute
allow
provisions
licensing
are those
of the
plaintiffs
a
or revoke
license from
agencies
deny a license to
executive
them unfit to
moral character or misconduct renders
those whose
Islands,
seeVI. Code
tit.
Virgin
in the
engage
business
Ann.,
(1997),
304(a)(2)
wrongful
or
improper
those who allow
or
§
304(a)(3).
id.
The
premises,
plain-
see
behavior on their business
that allow the
provisions
about those
profess
tiffs also
concern
in business
agencies
engaging
a
from
enjoin person
executive
307a(b).
307(c),
concerns
plaintiffs'
Seeid.
§§
license.
without
claims)
however,
(and
must,
the
tempered by
be deemed
their
court,
disclaimer,
authority
in this
explicit
Commissioner's
Counsultant"),
an
exist
"Internet
occupation
previously
(e.g.
that did not
new
own,
302(a),
entity.
on
or as
of an
part
at all mentioned in
either
its
occupation not
of the
effectively disposes
of the statute
plain language
7Our conclusion аbout
the
Commissioner,
we
deference to the
give
the
that
must
advanced
argument,
by
enforcing
with
it. This
agencies
the
by
charged
the statute
interpretation given
Council,
Chevron, U.S.A.,
Inc.,
Inc. v. Natural Resources
is
from
drawn
argument
Defense
(1984).
apply
that
of Chevron
principles
without so
the
Assuming
holding
theAt we hold that the doctrine of of separation powers applies with respect to the coordinate govern branches of Virgin ment in the Organic Islands. The ofAct the Virgin Islands created threе branches of government Islands. See48 branch); (executive branch); (legislative U.S.C. 1571 § id. 1591 id. branch). (judicial Congress therefore implicitly incorpo principle rated the of of separation powers into the law of the See v. territory. Springer Islands, Philippine Government 277U.S. (1928). 189, 199-202 Springer, In the Supreme Court examined the structure of government in the Philippines, territory then of the United States. The Congress, Court noted that enacting Philippine Act, Organic created government. three branches of Seeid. at 201. continued, In so doing, Court Congress incorporated principle separation powers into Philippine law. It stated that "as a general rule inherent in the American system constitutional . . . unless otherwise provided expressly or incidental to the conferred, powers the Legislature cannot exercise either executive judicial power; the executive cannot exercise either legislative or judicial power; the udiciary cannot exercise either executive or legislative power." at Id. 201-02.9
[8] See 9In addition to holding, authority. The first is our own jurisprudence. We have often Appellees that the doctrine of Brief Springer, at et [15] we draw seq. separation support for our conclusion from two other powers applies with assumed, respect without squarely to the coordinate lines *15 licensing scheme us is whether the before
Because the issue the of the scope first discuss we must judicial power, on infringes 1984, Act, in amended Organic The as judicial power. relevant of procedure the practice governing "[t]he rules provides the prescribing law and those local by the courts established . . . thereof and officers judges of the and duties qualifications by those promulgated or the rules local law by be governed shall added). 1611(c) is clear from It thus (emphasis § courts.” 48 U.S.C. — Virgin the by enacted that local law Organic the Act itself — play regulation to in the have some role may legislature Islands court). (officers Act differently, Organic the Put of the attorneys of regula the sharing power the of over the of possibility envisions Virgin and the Virgin the Islands courts tion between attorneys of fee. license imposing to the extent of at least legislature, Islands argument that sharing disposes of the of that itself The possibility violates the attorneys to of the scheme application powers. of separation of principle however, division, to point appellate and the plaintiffs
The
contend,
that,
provide
they
Virgin
of the
Islands Code
provisions
attorneys
of
the regulation
with exclusive control over
judiciary
4,
tit.
is V.I. Code
provision
The first
Virgin
in the
Islands.
Ann.
(1967
1994).
over the
grants jurisdiction
&
Section 441
Supp.
441
§
district court.
Virgin Islands to the
attorneys
of
in the
regulation
48
But,
of U.S.C.
any vitality
passage
retains
after
§
even if 441
1994),
76(a)
1611(b)
4,
see In re
(Supp.
V.I. Code Ann.
tit.
§
§
(V.I.
1992)
74, 80-84
(holding
Moorhead, V.I.
Terr.Ct.
27
Applicationof
1611(b)
76(a)
of
over the regulation
control
shift
§
that §
district court to the
from the
attorneys
Virgin
Islands
Court),
the contentions
support
not
for
provide
it would
Territorial
branches
v.
v.
791 F.2d
District Court of
applied
Islands,
U.S.L.W. 3820
[1996]
(D.C.V.I.1983),
v.
Richards,
Gordon,
Potter,
WL
34,
of
631 F.2d
785997,
78 F.
[847]
F.
government
doctrine
Supp.
37 n.1 Cir.
(U.S.
vacated
F.2d
Supp.
at
(3d
233,
June
108, 112
*2
397,
of separation
Virgin
440,
by
(Terr.
239-40
in
751 F.2d
16,
1986);
442-44
(3d
Ct.
1997) (No.
(D.C.V.I.),
Virgin
(3d
V.I. Dec.
Dennis v.
Cir.
(D.C.V.I.
Cir.
powers.
1988);
and the Territorial
(3d
Islands.
aff'd,
1980).
96-1803);
Cir.
30,
Luis,
1948).
Government
1984);
1996);
inherent
power
courts to control the admission of
practice
Although
before them.
the inherent
power
courts
see,
established,
Secombe,
regulate attorneys is well
Ex
e.g.,
parte
(19 How.)
(1857),
9,
U.S.
it is also well established that
*16
legislatures
power
have the
to cabin inherent
power
courts of
NASCO, Inc.,
32,
own
their
(1991);
creation. See Chambersv.
501 U.S.
(19 How.)
Secombe,
see also
60 U.S.
at 13-14.Although not
directly on point, Secombeand Chambersprovide some instruction.
Congress
courts;
allowed for the creation
Virgin
of local
it
Islands
case,
can certainly restrict their power. In this
Congress
by
did so
1611(c)
including in
the possibility
of a sharing arrangement.
We have held that the
of legislative
exercise
power in this
is at least
regard
partially
Riggins
circumscribed. In Eash v.
Truck
(3d
1985)(en
Inc.,
banc),
ing,
But even assuming that the power regulate attorneys is court, essential to the functioning of a the interference here is way minimal and in no renders inoperative power. that Congress 1611(c), attorneys; it regulate not, the abrogated power by has events, At all division of that power. allowed for the merely has citizens, are like other attorneys, no dispute there can be the sanctions as well as and administrative to criminal subject licensing taxes or fees. pay remedies for failure to usual collection impair judiciary's does not obligations of such Enforcement See, Philadelphia, v. Sterling City e.g., of the Bar. supervision of (Pa. 1954). 793, A.2d 796-97 with the state court cases is not inconsistent Our discussion because such schemes licensing similar schemes have invalidated attorneys. Such regulate of the courts to infringe power on the regulation the exclusive control over grounded cases are on in its We judiciary. state had vested particular Helena, City v. 676P.2d case as an In Harlen example. mention one (Mont. 1984), city Montana invalidated a Court of Supreme carrying or entities out persons a fee of all requiring ordinance was the fact that Seeid. at 192.Vital to court city. business constitution, to to the state authority, pursuant it had exclusive attorneys. Seeid. at 193. governing rules promulgate sum, powers is not violated principle separation In attorneys. scheme application affirming the order of division appellate The order of *17 enforcе- injunction against issuing permanent Territorial Court a will be non-owner licensing against of the statute ment reversed.
WEIS, dissenting the District Division of Appellate Court and the
The Territorial a as whole licensing provisions read the of the Court entities, directed to business generally them to be and construed employ- individual rather than to corporations, partnerships, and would affirm. agree ees. I or "[e]very person broad terms says very in
The statute business, profes- occupation, engage any in wishing association sion, a license. VI. must obtain or trade listed in 302" § Code Ann. (1997). 301(a) turn, hundred occu- 27, 302 lists several In § tit. § services, diverse callings, including such professions, pations, instructors, vendors, machine judo itinerant classifications as masons), (but machinists), (but not masonry contractors not shops models), (but pharmacies not modeling agencies plumbers, master accountants, (but Section attorneys. public pharmacists), not tables, but by the number of restaurants classified 302 includes or waiters. does not list cooks a temporary from for range $10 for 302 licenses
The fees § firms consulting $2,000 or management business barber to for As a catch- corporations. serviсe foreign 100 or more representing 302(b) in engaged "[a]ny all, or association provides person § business, trade" not listed "or not occupation, profession, an annual this Code shall obtain by any provision other covered at a fee of $100." license statute, contrary, on its view to
Despite majority's an compensation face, receives from person who applies every in a engage individuals who as well as to those "occupation" business, are those only exemptions or trade. The profession, charitable, benevo- religious, governmental, in 306 for specified lent, organizations. and educational 302, the government 301 and
Despite language §§ the broad intended to cover licensing contend that the statute was does not working population. encompassing an all swath such interpreta- Indeed, an expansive disclaims such government adopted by majority, language tion. The construction simple therefore, licensing body been itself. rejected has record, government that the has not en- appears
From the it clause, rather it pursued the catchall has wording forced the their For employees. business entities instead of policy that, prior proceeding, Court observed in a example, the Territorial (entrusted with Service Administration an officialof the Consumer statute) are although agents testified that travel enforcement of the licensed, 302, they be unless they required "are not listed work, they in the business for which ownership an interest possess merely but Smith they professionals, employees." are not because (Terr. 167/1993, Ct. V.I. 1993 WL 566406at *5 Magras, v. Civ. No. *18 1993). 17, Dec. 301(b) (c), itself, an requires applica-
The statute in §§ by a furnished the Commis- for a license be made on form tion pro- Affairs. must Licensing Applicants and Consumer sioner personal history, vide information about experience, their business record, and criminal record. In who should designating submit 301(b) "[i]n states that .applications, corporations § case of or partnerships preceding requirements" apply to "all of cases, shareholders or In all be partners." requirements "such shall applicable merely to the actual owners and not to the nominal owners." Id.
Significantly, are employees corporations partnerships Thus, amоng not listed those who must submit information. in the reads, a corporation, case of as the statute a shareholder must data, personal submit but the an em- president, merely who is ployee, Similarly, need not. as to partnerships, statute makes no 301(c),however, "employee." mention of Subsection provides that corporation a or partnership application designate "shall each member, officer, or employee who will exercise the to be powers conferred upon partnership license such or corporation." This does in any way require employee subsection not an to apply for a license.
Although the position Commissioner now takes the that all lawyers private must practice pay license because it is them, personal to has not been principle consistently applied. noted, As the district court the Commissioner had not past, an a fee "unless had required attorney pay licensing attorney an ownership partnership corporation by interest the law Smith, 124, employed." Magras which she was v. 940 F. Supp. (D.C.V.I.1996).
To the Commissioner's current that a licеnse is adopt position would mean that an mechanic em- personal automobile who is (which 302(a)) a be under ployed by repair shop must licensed also obtain for his or trade under occupation must a license 302(b). Similarly, by large construction carpenter employed license, firm would have to obtain an individual as would a clerk That, however, in a retail establishment. is not what the Commis- is, sioner's or has been. practice litigation posture
The Commissioner's in an earlier case in this Court is Section 306 revealing. exempts "agencies of charitable, Government, religious, [ ] Islands or of the United States benevolent, that section Significantly, or educational associations." *19 However, does not mention of such institutions. "employees" (3d Islands, 163, 171 Hollar v. Government 857 F.2d Cir. 1988), the government argued they merely because em are ployees agencies, government attorneys various fall under the blanket exclusion.
Additionally, government Commissioner contended that only were because their employees pre-determined depend attorneys' salaries did not on the caseload or success rate. Smith, See 1993 WL at *4 (discussing 566406 the Commissioner's Hollar). comment, course, arguments in That latter is irrelevant and, event, in any may well be said of an attorney associate employed by law firm. consistent,
To be position Commissioner's that an attorney and, such, for a working government salary employee is an as not tax, subject to the an carry employee lawyer should over to of a law firm similarly who should not be obligated to obtain a license. The exemption lawyers is what the employee government success- fully advanced in Hollar and that status apply should to plaintiffs here as well.
The district court's conclusion that the statute should be con- strued apply only partners in law firms practitioners or sole is, believe, who have a proprietary interest I the proper reading. The district pays fealty court's construction due canon of whole, construing the statute gives regard as due to the govern- ment's application years, consistent over the and results in a interpretation rational of the legislation. I would affirm.
APPENDIX Same; business, 302 occupations, professions and trades cov- ered; fees
(a) following annual license are fees made applicable to shall be levied upon persons all engaged associations businesses, designated occupations, professions and trades in the Virgin United States: place
Additional of brokers business 50$ Advertising
Air cargo transportation Air charter service per plan $ Air conditioning refrigeration repair shop Answering service A, house
Apartment more than 12 units B, Apartment house 9-12 units *20 C,
Apartment house 5-8 units 150 D, Apartment house 4 or less units 100 Appliance repair shop 100 Appraiser 100 Armored car service 300 Artist studios 100 service Astrology 100 Attorney 500 Auto cleaning polishing service 100 Automobile towing service 100 Automobile undercoating 100 inspection Automotive and diagnostic services 100 Automobile mechanical service road 100 Baby sitting service 100 Baggage, cargo, mail handling 225 Bakery 200 Barber 50 Barber apprentice 25 Barber shop initial issuance 150 Barber shop renewal 75 Barber temporary 10 Battery and ignition repair 100 Beach club 100 Beautician apprentice 30 Beautician temporary 10 Beauty school 200 Beauty initial shop issuance 150 Beauty shop renewal 75 Billiard table per table 30 Blasting serviсe 150 Blender, beverages bottler of alcohol 800 building Boat and repair 125 Boat charter service boat per 100
487 rental $ Boat 100 Bookkeeping services 100 alley Bowling 300 Bus bus transportation per management
Business and consultant training Business courses and related Business or Management Consulting Foreign Firm for Corporations:
Sales Firms than managing consulting or for less
Foreign Sale Corporations managing consulting Firms or for at least 5 but less 1,000 than 100 Sales Foreign Corporations Firms managing consulting for 100 or more 2,000
Foreign Corporations Sales Butchery
Cable car sightseeing tours
Cable splicing and related work
Cable television and antenna service 150 leasing Car 100 Car Rental A— 0 to 20 vehicles 200 Car Rental B—21 to 50 vehicles 300 Car Rental C— more than 50 vehicles 400 Carpentry contractor 75 Carpet laying and related services 125 Catering service 100 Certified public accounting 300 Charm school 100 Check room service 50 Claim adjusters 150 Clinical laboratory 300 Club liquor license 200 Cockfighting 500 Coffee and ice shop parlor cream 100 operated Coin car wash 100 Commercial art services 100 boat, freight Commercial or passengers 100 Commercial breeding services 100 Commercial diver 100
488 100 $ kennel Commercial 200 laundry Commercial 250 Commercial school 150 warehousing Commercial 300 сlearing house Commodity exchange 150 int. telecommunication Common carrier 150 inst. contractor equipment Communication 150 contractor equipment oper. Communication 250 pumping Concrete 200 contractor Construction 125 and related services therapy Consultation 100 service Copyright protection 100 rental Cottage 200 agency bureau and collection Credit 100 and visa service preparations Customs 50 Dance studio 500 Safety Public Dealer in explosives 350 laboratory Dental 75 of own property and sale Development night as club Discotheque— same 150 ship agent for vessels steam
Documentation services shop Dog grooming
Draftsman
Driving school
Dry cleaning docking services
Dry installation contractor sheetrock Drywall— Electrical contractor consultant security
Electronic *22 100 agency Employment 200 Escort service 150 Exterminating pest control 100 Fiduciary services 100 services Fingerprint 1,000 or wholesaler and ammunition— distributor Firearms 550 retail sales and ammunition— Firearms 500 gunsmith ammunition— Firearms and 100 prevention Fire service 489 150 $ license contractor Fireproofing 150 Florist 100 agricultural nursery Flower conserv. 250 Flying school 100 Foreign Corporation Sales 100 photographer Free lance 200 repair shops Garage 100 removal Garbage 250 Gasoline station 125 aviation service and maintenance General 150 manufacturing— glass General 150 food manufacturing— General 150 manufacturing— tobacco General 150 textile manufacturing— General 150 manufacturing— General clothes 150 manufacturing— printing public General 150 manufacturing— General chemical 1,000 manufacturing— petroleum General 1,000 rubber manufacturing— General 150 leather manufacturing— General 500 manufacturing— metal General fabricated metal 500 manufacturing— General machinery 500 manufacturing— General 500 manufacturing— machinery electrical General 300 manufacturing— transportation equipment General 350 watches manufacturing— General 300 manufacturing— General miscellaneous 75 contractors tinting Glass 150 Golf course 100 dog Guard service 75 Hair removal service spa Health club or
Holding company guest Hotel and house A— over 100beds B— over 40-99beds guest Hotel and house guest Hotel and house C— 1-39beds liquor
Hotelkeeper—
Hypnotism consultant *23 $ 250 manufacturing Ice 200 goods for resale Importer data services 100 processing Information and 75 equipment Installation 75 Installation of fences and alarm 200 burglary systems Installation of firе 100 decorating Interior advisory Investment service 200 Investment 400 brokerage Itinerant 50 vendor license and 150 supply service Janitorial Jewelry and watch 100 repair shop 100 instructor Judo Karate 100 instructor 200 Kindergarten school 100 Landscaping consultant 100 Landscaping, garden, maintenance service 200 Laundromat Laundry and 100 pickup delivery service 100 Leasing plants Lie detection service 100 wholesalers license 400 Liquor shop Machine 100 10 apprentice Manicurist 150 Manufacturers of aerated waters Manicurist 75 biological supplies Marine 100 salvage Marine and Rel service 150 underwater 150 surveyor blasting Marine service surveyor Marine and consultant 150 75 contractor Masonry parlor Massage
Master electrician
Master plumber
Media advertising, promotion production laboratory Medical
Messenger delivery service
Misc. amusement devices *24 $ 100 Mobilfood service 75 refreshment stand Mobe 100 Meling agency 200 banker Mortgage 400 broker Mortgage 150 distribution picture Motion 500 picture theater Motion 500 vehicle dealer Motor and services 200 Moving freight forwarding 200 and sales business recording Music 30 Nickelodeon machine per 700 club license Night 100 consulting Nutrition and services 100 development researсh and Oceanographic 100 facility care patient Out 100 representative coordinator Owners 75 Painting contractor 100 services Paralegal 100 lot Parking vehicle 300 Pharmacy 75 services Photocopying 50 Photographic or studio processing 100 technician Piano . 50 per ball and machines machine Pin similar 75 Plastering contractor 100 Plumbing contractor 100 control services Pollution Poultry farm— agriculture 1,500 beverages distillers of alcoholic
Prime 250 Printing publishing house 200 elementary/secondary school Private 125 and milk products Production of milk 75 Project coordinator/consultant 120 Public accountant 100 Public auctioneer 25 dance Public license 100 Public relations services 100 title reporter Public 492 Radio television repair shop $ 100 Radio advertising, promotion production 200 Radio station 500 Real estate broker 250 Real estate salesman
Real estate salesman— temporary
Real estate— change place business
Real estate— change of associate
Red cap porter service (other
Rent of real property than buildings) Rental of equipment
Rental of non-residential building
Rental watersports equipment 100 mise, Repair and maintenance of items 100 Restaurant A— Seating capacity 25 or more 200 Restaurant B— Seating capacity less than 25 125 Retail shop and store— except liquor 100 Retailers liquor license 250 Riding academy 75 house Rooming 100 Rug and furniture on cleaning location 100 Sailing school 200 Sale of hotel prepaid reservation 125 Sales and marketing concepts 50 Sales finance 200 and Salvage parts sale of used 100 Scheduled air service 700 School of ceramics 100 School language 100 School of music 100 School of philosophy 100 School of underwater photography 100 Scooter motorcycle rental 150 and/or Scrap metal and collection sales 100 Scrap paper collection and sales 100 Scrap plastic collection and sales 100 diving Scuba school and related services 125 ' Secretarial service 100
493 Security analyzing service $ 100 Septic tank cleaning 150 Sewer and cleaning rodding services 150 Sewerage maintenance and operational engineering services 150 Sewing school 100 Sheet metal and iron shop work 150 Ship chandler 100 Shoe repair shop 75 Sightseeing operations tour 100 Sign painting 75 Silk screen manufacturing 150 Skating rink 175 Solicitor, sales and agent commission 75 Sporting and camp recreational 100 Sports instructor 100 Sports promoter 150 Sprinkle system installation contraсtor Steamship shipping agents
Stevedoring license
Summer school
Swimming instruction
Swimming pool installation contractor Tailoring alteration service
Tavernkeeper A— distilled and fermented spirits *26 B— Tavernkeeper fermented spirits only 150 Tax consultant 100 Telegraph office 350 Television station 600 Temporary help contracting agency 100 Tennis club 100 production, Theatrical except picture motion 100 Theatrical promoter and booking agent 150 Theatrical variety employment service 150 Tile setting contractor 75 Tire recapping retreading service 100 Tobacco Retailer 100 Tobacco Wholesaler 500 Transient disco service 75
494 operator Transient amusement 500 $ Translation services 100 agent Travel ticket 150 surgery Tree 100 Trucking, transportation delivery 100 n 100 Typewriter repair shop business Undertaking 500 Upholstery shop 100 car lot Used 100 Vehicle inspection service 100 Vending machine A— License— 0 5 machines 100 through B— Vending through machine License— 6 20 machines 150 machine C— Vending through License— 21 50 machines 200 machine D— Vending License— more than 50 400 machines Vocational school training
Water skiing school
Water supply services
Waterproofing contractor
Welding services
Wholesaler and other than liquor
Writing school brokerage
Yacht service (b) business, Any in a person engaged occupation, association (a) profession, designated or trade not in subsection of this section an by any provision or not covered other of this Code shall obtain annual license at a fee of $100.