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Os v. Barnard

filed: March 31, 1988.

SUSAN ESPOSITO (THORSTENN) LLOYD DE VOS
v.
GEOFFREY W. BARNARD, IN HIS CAPACITY AS CHAIRMAN OF THE COMMITTEE OF BAR EXAMINERS OF THE VIRGIN ISLANDS BAR, AND NOT PERSONALLY AND VIRGIN ISLANDS BAR ASSOCIATION, DEFENDANT-INTERVENOR, SUSAN ESPOSITO THORSTENN AND LLOYD DE VOS, APPELLANTS



Appeal from the District Court of the Virgin Islands--St. Thomas, D.C. Civil Nos. 85-0206, 85-0207.

Gibbons, Chief Judge, Seitz, Weis, Higginbotham Sloviter, Becker, Stapleton Mansmann, Greenberg, Hutchinson, Scirica, Cowen and Rosenn, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

Plaintiffs, Susan Esposito Thorstenn and Lloyd De Vos, appeal the order of the district court granting the defendants' motion for summary judgment and, in effect, denying the plaintiffs' motion for summary judgment. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1982).

Thorstenn and De Vos applied for admission to the bar of the Virgin Islands. Thorstenn is a resident of New York; De Vos is a resident of New Jersey. Both are members in good standing of the New York and New Jersey bars.

Under the Rules of the District Court of the Virgin Islands, an applicant must live in the Virgin Islands for one year before applying for admission to the bar, and must state his or her intention to reside in the Virgin Islands. 5 V.I.C., App. V, Rule 56(b)(4), (5). Because Thorstenn and De Vos did not comply with these residency requirements, they were denied admission to the Virgin Islands bar.*fn1

The plaintiffs filed these actions, alleging that the residency requirements of the Virgin Islands violated the privileges and immunities clause of the constitution and seeking to enjoin the enforcement of such rule.*fn2 Both the plaintiffs and the defendants filed motions for summary judgment with supporting affidavits. Plaintiff De Vos reported that he had not experienced trouble travelling to the Islands. In contrast, Barnard, chairman of the Committee of Bar Examiners, in his affidavit, maintained that travel service between the continental United States and the Virgin Islands was difficult and erratic. The parties also disagreed about the quality of telecommunications between the Islands and the mainland. In view of our disposition of the legal issue presented in this case, however, we do not believe that the parties' disagreement over the ease of travel and communications between the Virgin Islands and the continental United States creates an issue of material fact.*fn3

The district court granted the defendants' motion for summary judgment on the ground that the unique conditions in the Virgin Islands justified the residency requirements, and thus the requirements did not violate the privileges and immunities clause as applied in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985). In support of this conclusion, the district court relied on the geographical isolation of the Virgin Islands from the continental United States, the delay in publication of local decisions, the case load in the district court, the need to ensure that its lawyers are ethical, and the rule governing the appointment of counsel for indigent criminal defendants. These appeals followed.

While these appeals were pending, the Supreme Court of the United States handed down its decision in Frazier v. Heebe, 482 U.S. 641, 107 S. Ct. 2607, 96 L. Ed. 2d 557 (1987). The Court, relying on its supervisory power, invalidated certain attorney residency and office requirements contained in the local rules of the United States District Court for the Eastern District of Louisiana. Because of the established policy favoring a non-constitutional disposition, if possible, we address the applicability of Frazier v. Heebe to this appeal.

The petitioner in Frazier was a Mississippi attorney. He applied for admission to the bar of the United States District Court for the Eastern District of Louisiana. His application was rejected because he admittedly did not comply with the provisions of the local rules noted above.

The district court and the court of appeals refused to invalidate the local rules. Those courts concluded that the requirements facilitated the efficient administration of justice because nonresident attorneys allegedly are less competent and less available to the court than are resident attorneys. The Supreme Court granted certiorari. Frazier v. Heebe, 479 U.S. 960, 107 S. Ct. 454, 93 L. Ed. 2d 401 (1986). It thereafter decided that "pursuant to our supervisory authority, we hold that the district court was not empowered to adopt its local rules to require members of the Louisiana bar who apply for admission to its bar to live in or maintain an office in Louisiana where the court sits." 107 S. Ct. at 2611. It found that the reasons given for the residency requirement were unnecessary and irrational.

First, the Court stated that no empirical evidence demonstrated why the district court was justified in discriminating against one of two classes of attorneys who were members of the Louisiana bar. The Court went on to say that there is no reason to believe that nonresident attorneys who have passed the Louisiana bar examination are less competent than resident attorneys. 107 S. Ct. at 2612-13. There is no suggestion that the situation is otherwise in the Virgin Islands.

The Court next concluded that it did not agree that the alleged need for immediate availability of attorneys in some proceedings requires a blanket rule that denies all nonresident attorneys admission to a district court bar. Id. at 2613. The Court pointed out that improvements in communications minimize the problem of availability, and that alternative resolutions are possible.

The Court thereupon held that the residency requirement imposed by the Eastern District was unnecessary and arbitrarily discriminated against out-of-state attorneys.

The reasons advanced here by the district court, the appellees and the amicus curiae, the Government of the Virgin Islands, in support of the validity of the local rules for the district court of the Virgin Islands are essentially the same as those rejected for lack of inherent merit in Frazier. Indeed, the district court found that the most compelling reason for excluding nonresidents was the need to have counsel available in criminal cases. The Supreme Court, however, concluded that alternative resolutions of this problem are the answer.

We have no doubt that alternative rules could validly be adopted that would impose reasonable requirements on non-resident members of the Virgin Islands bar to assure that they would bear professional responsibilities comparable to those now imposed on resident attorneys. In consequence, non-resident members of the bar would not have a privileged status in the practice of law in the Virgin Islands. We further note that reasonable rules could be adopted to relieve the Government of the Virgin Islands of any undue expenses resulting from the admission of non-resident attorneys.

We emphasize that the Court invoked its supervisory power in Frazier v. Heebe. Moreover, we are convinced that the Supreme Court of the United States did not invoke its supervisory power merely to adopt an ad hoc rule for the resolution of the problem presented. Such a view would create the possibility of litigation with respect to every federal district having a residence requirement.

We conclude that Frazier must be viewed as generally applicable to the United States district courts. We have no doubt, therefore, that it is binding precedent here unless the status of the District Court of the Virgin Islands dictates otherwise. The District Court of the Virgin Islands is, of course, not a United States district court. It was created by an act of Congress and exercises exclusive federal jurisdiction in that Territory under the Revised Organic Act, 48 U.S.C. § 1612 (1982).

Given the integrated status of the Virgin Islands in the federal court system, 28 U.S.C. §§ 1254, 1291 (1982), we have no doubt that the United States Supreme Court has supervisory authority over the District Court of the Virgin Islands. Under 28 U.S.C. § 2071 (1982), local rules adopted by United States courts, including those of the District Court of the Virgin Islands, must "be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court." See also 28 U.S.C. § 2072 (1982). We thus conclude that the Supreme Court's ruling in Frazier v. Heebe requires that we invalidate the provisions of 5 V.I.C., App. V, Rule 56(b)(4), (5) to the extent that they require an applicant to live in the Virgin Islands for one year before applying for admission to the district court bar and to state that it is his or her intention to reside in the Virgin Islands.*fn4

The appellees argue that the supervisory power should not be exercised to invalidate the residency requirements because the supervisory power is to be used only in unique circumstances, usually criminal cases. This argument, however, is unpersuasive in light of the decision by the Supreme Court to employ its supervisory power to invalidate the residency requirement imposed by the Eastern District of Louisiana. Indeed, the dissent in Frazier focused on whether it was appropriate to rely on the Court's supervisory power in the case. See 107 S. Ct. at 2614-16 (Rehnquist, C.J., dissenting).

Moreover, we disagree with the appellees' and the amicus curiae's*fn5 assertions that the facts in this case dictate a different result than that reached by the Supreme Court. As indicated above, the justifications offered by the district court in this case were essentially the ones rejected in Frazier. Even against the remote possibility that we are not bound to apply Frazier v. Heebe here, we believe that in the exercise of our clearly established supervisory power over the District Court of the Virgin Islands, Government of the Virgin Islands v. Bryan, 818 F.2d 1069 (3d Cir. 1987), we would be compelled, by parity of reasoning to that employed in Frazier, to apply our supervisory power, see LaBuy v. Howes Leather Co., 352 U.S. 249, 259-60, 1 L. Ed. 2d 290, 77 S. Ct. 309 (1957), to invalidate the residency requirements in the rules.*fn6

Accordingly, the judgment of the district court will be reversed and the case remanded with instructions to enter summary ...


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