In re In re Steele, Misc. No. 1-1973

• Decision Date: 08 February 1973
• Docket Number: Misc. No. 3-1973,Misc. No. 2-1973,Misc. No. 1-1973
• Citation: 9 V.I. 332
• Parties: In the Matter of WALCOTT STEELE, Claimant In the Matter of GILLIARD MATHURIN, Claimant In the Matter of GILBERT SAMPSON, Claimant
• Court: U.S. District Court — Virgin Islands

9 V.I. 332

In the Matter of WALCOTT STEELE, Claimant In the Matter of GILLIARD MATHURIN, Claimant In the Matter of GILBERT SAMPSON, Claimant

Misc. No. 1-1973

Misc. No. 2-1973

Misc. No. 3-1973

District Court of the Virgin Islands Div. of St. Croix

February 8, 1973

Consolidated applications, presenting same factual and legal issues, for permission to file tort claims against the Government for injuries allegedly caused by police brutality. District Court, Young, J., allowed late filing where statutory prerequisites were met.EDWARD J. OCEAN, ESQ., Christiansted, V.L, for claimants

ATTORNEY GENERAL, St. Thomas, V.I., for government

YOUNG, Judge

MEMORANDUM OPINION AND ORDER

The three applications before this court have the same factual and legal issues for consideration and were consolidated for argument and disposition. Applicants are applying for permission to file their claims against the territorial government under the local Tort Claims Act (Title 33 V.I.C. Ch. 118—§§ 3408-3413). Since applicants failed to file their claims within 90 days after the accrual of their claims as required by 33 V.I.C. 3409(c), they must now seek permission to file their claims "out of time", which permission may be granted or denied by this Court within a period of two years after the accrual of the claims (33 V.I.C. 3409(c)). The discretion of this Court in acting upon the applications is not unfettered. There is an implication in section 3409(c) that if the applicants present a reasonable excuse for their failure to have filed within the 90-day time prescribed and if it is shown that the government, "or its appropriate department or agency" had, prior to the expiration of the 90-day period, actual knowledge of the facts constituting the claim, then leave to file out of time should be granted—provided, however, that no leave shall be granted if the Court shall find that the government has been "substantially prejudiced" by the applicant's failure to file timely.

The facts common to all three applications are as follows: The three applicants were arrested on February 21, 1971 and detained at Richmond Penitentiary. Early the next day, February 22, 1971, they were taken to police headquarters for questioning. It was during this "rigorous interrogation" that the alleged brutality and assaults oc-curred. Shortly thereafter, on the same day, when the claimants were taken before Municipal Court Judge An-toine Joseph to be formally charged and advised of their rights, they were ordered, by reason of their physical appearance, to be taken to the hospital for medical examination and attention.

Informations charging two counts (kidnapping and murder of Luz Maria Felix) were filed against Steele and Sampson on February 24, 1971, and against Mathu-rin on April 20, 1971. An expedited trial was granted and commenced on April 20, 1971. On the first day of the trial, Chief Judge Almeric Christian of this Court ordered the Commissioner of the Department of Public Safety to investigate the alleged acts of brutality attending the interrogations of February 22, 1971. This investigation was completed on July 8,1971.

On April 24, 1971 all three claimants were convicted of kidnapping and murder in the second degree and on May 18, 1971, were sentenced to concurrent terms of 20 and 35 years for the respective counts. On November 30, 1971, the convictions and sentences were set aside and a new trial ordered. A year later (on November 27, 1972), after a new trial with the venue changed to St. Thomas, the jury acquitted all three applicants.

I

The Government, in opposing the applications, has argued that applicants have not shown excusable neglect in their failure to file either their actual claims or at least notices of intent to file claims within the 90-day period permitted by law nor have they sustained their burden to show (1) that the government had, during that 90-day period, actual knowledge of the facts upon which the claims are based and (2) that the government will not be substantially prejudiced by this proposed late filing of theclaims. There have been lengthy written and oral arguments on both sides as to the effect of the incarceration of the applicants during and after the accrual of their claims. One side argues that the claimants were under a legal disability at the time of the accrual of the claims according to 5 V.I.C. 36(a)(3)¹ because they were then "imprisoned on a criminal charge." The other side argues that they were not actually imprisoned on a criminal charge until after the informations were filed—or, at least, until after they appeared before the lower court—both events having occurred after the accrual of the claims. However, for reasons which will appear below, I see no importance to such a distinction.

Claimants were imprisoned from February 21, 1971 to November 27, 1972—a total of approximately 21 months after the accrual of their claims. With the removal of their legal disability (as defined in 5 V.I.C. § 36) on November 27, 1972, did they then have 90 days thereafter within which to file their claims as matter of right? I think not. It is my opinion that 5 V.I.C. § 36 has no application to this case. According to 33 V.I.C. 3409, claimants must file their claims or written notices of intention to file claims within 90 days after the accrual of the claims. There is no tolling of that period by reason of any "legal disability". We must bear in mind that filing a claim or, as permitted by 33 V.I.C. 3409, the filing of a notice of intent to file a claim is not...