Third-year University of Virginia School of Law students Laura Cooley and Tanner Russo, who are taking part in this year's Appellate Litigation Clinic, recently argued a case in St. Croix, a U.S. territory, that may help determine which court currently has appellate jurisdiction over the Virgin Islands Supreme Court. The case may also set precedent for the islands’ nonresident bond statute. They wrote about the case following their court appearance in December.
Each year, the Appellate Litigation Clinic offers 12 third-year law students hands-on appellate litigation experience. This year, two of us had the unique opportunity to argue a Third Circuit appeal in St. Croix, part of the U.S. Virgin Islands.
In the beginning of the fall 2017 semester, we were assigned to represent the petitioner in Vooys v. Bentley, a case on appeal to the Third Circuit from the Virgin Islands Supreme Court. Currently, the Third Circuit has appellate jurisdiction over the U.S. District Court for the Virgin Islands and a subset of cases from the Virgin Islands Supreme Court. After weeks of preparation and five moot arguments, we traveled to St. Croix in December to argue before a panel of three Third Circuit judges: Chief Judge D. Brooks Smith, Judge Theodore McKee and Judge Anthony J. Scirica. The case presented two distinct and important questions, which we divided between us.
First, Vooys presented the question of whether the Third Circuit retains appellate jurisdiction over the Virgin Islands Supreme Court.
In creating the Virgin Islands Supreme Court in 2007, Congress provided that the Third Circuit would have certiorari jurisdiction over the Virgin Islands Supreme Court for 15 years (in contrast to other state and territorial courts of last resort, which appeal directly to the United States Supreme Court). Congress directed the Third Circuit to report on the Virgin Islands Supreme Court’s progress, in the event that the court developed sufficient institutional traditions prior to the 2022 expiration date to justify earlier direct review by the United States Supreme Court. On Dec. 28, 2012, on the Third Circuit’s recommendation, President Obama signed H.R. 6116 into law, removing the Third Circuit’s certiorari jurisdiction, and granting the Virgin Islands Supreme Court direct review by the United States Supreme Court.
However, H.R. 6116 contained a savings clause, which provided that the Third Circuit retained jurisdiction over “cases commenced” before the date of the bill’s enactment. Since the enactment of H.R. 6116, there has been sharp disagreement over whether “cases commenced” means cases commenced in the Third Circuit or cases commenced at any level.
The Third Circuit answered this question in 2014 in a case called Bason v. Government of the Virgin Islands, holding that “‘cases commenced’ carries a broader meaning referring to the filing of a complaint in the Virgin Islands Superior Court. However, many litigants, and especially the Virgin Islands Bar Association — which has filed an amicus brief in nearly every post-Bason case presenting this jurisdictional question — have continued to challenge this interpretation of “cases commenced,” arguing that it should carry the narrower meaning of “commenced in the Third Circuit.”
We argued that Bason and the Third Circuit’s own internal rules foreclosed the respondent’s objection to the Third Circuit’s jurisdiction, asserting that under the Third Circuit’s Internal Operating Procedure 9.1, Bason cannot be overturned unless a majority of the Third Circuit, sitting en banc, determines that it was wrongly decided.
Second, Vooys presented a substantive constitutional question regarding the Virgin Islands’ nonresident bond statute.
Like similar bond statutes active at various times in Guam, Puerto Rico and other mainland jurisdictions, the Virgin Islands bond statute requires superior court judges, upon a resident defendant’s request, to order a nonresident plaintiff to post a security bond to ensure that the resident defendant can recover at least some costs of litigation (if awarded) without chasing the nonresident plaintiff thousands of miles off-island. The Supreme Court of the Virgin Islands held that the nonresident bond statute violated both the Privileges and Immunities Clause of Article IV and the Equal Protection Clause of the 14th Amendment.
We asked the Third Circuit to reverse this holding and rule instead that nonresident bond statutes violate neither constitutional provision. To violate either the Privileges and Immunities Clause or the Equal Protection Clause, the bond statute must be found to burden a fundamental right — here, the fundamental right of access to the courts. The Supreme Court has long held that the right of access to the courts is not infringed if a statute preserves “reasonable and adequate” access to the courts. We argued that the Virgin Islands’ nonresident bond statute preserved a reasonable degree of access to the courts for four chief reasons. First, the bond amount is entirely within the superior court’s discretion, as is the decision whether to dismiss a case for failure to pay the bond. Second, the bond statute contains a clear cap on the maximum bond amount ($3,000). Third, the Virgin Islands code exempts indigent plaintiffs from paying the bond. Finally, no other state or federal court to examine a nonresident bond statute under federal law has ever concluded that such bonds burden the fundamental right of access to the courts. Given our argument that the bond statute does not burden a fundamental right, we asserted that the statute should have been upheld under only rational basis review with respect to both the Privileges and Immunities Clause and the Equal Protection Clause.
Although the judges at oral argument seemed receptive to our arguments on the substantive constitutional question, they appeared more skeptical of their jurisdiction over the case. As a result, a majority of the judges on the Third Circuit has decided to grant an en banc rehearing of Bason to determine whether it was wrongly decided and whether “cases commenced” is limited to cases commenced in the Third Circuit on the date of enactment of H.R. 6116.
While the argument date has not yet been set, we will likely travel again this semester (this time to Philadelphia) to argue before not three, but 13 Third Circuit judges.
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