Moorhead v. Farrelly, Civ. A. No. 89-360.

• Decision Date: 28 December 1989
• Docket Number: Civ. A. No. 89-360.
• Citation: 727 F. Supp. 193
• Parties: Jeffrey B.C. MOORHEAD, Plaintiff, v. Alexander FARRELLY, et al., Defendants.
• Court: U.S. District Court — Virgin Islands

727 F. Supp. 193

Jeffrey B.C. MOORHEAD, Plaintiff, v. Alexander FARRELLY, et al., Defendants.

Civ. A. No. 89-360.

District Court, Virgin Islands, Appellate Division.

December 28, 1989.

Jeffrey Moorhead, Hodge & Sheen, St. Croix, U.S. Virgin Islands, pro se.

Godfrey deCastro, Atty. Gen., of the Virgin Islands, St. Thomas, U.S. Virgin Islands, for defendants.

BROTMAN, Chief Judge.

On Friday December 22, 1989, this court entered an oral order temporarily staying a temporary restraining order entered by the Territorial Court pending an appeal to a panel of the District Court of the Virgin Islands. Presently before the court is plaintiff's motion to vacate the oral order of this court. Also before the court is plaintiff's application to dismiss the appeal for failure to comply with the requirements of Fed.R.App.P. 8(a), as well as an application for the disqualification of this court. For the following reasons, the court will decline to disqualify itself in the instant matter, refuse to dismiss the appeal, and will continue the stay.

FACTS AND PROCEDURE

Hurricane Hugo reached the Virgin Islands on the evening of September 16-17, 1989, and caused widespread devastation and destruction. In addition to severe property damage, Hugo brought about a total debilitation of communication and power on the island of St. Croix. During the storm, the majority of the island's prison population escaped from custody. In the storm's aftermath, reports of widespread looting and violence were prevalent. The destruction caused serious difficulties in communication, because of the lack of electricity, and travel.

On September 19, 1989, Governor Alexander Farrelly proclaimed a state of emergency in the Virgin Islands. The Governor also issued an executive order on September 23, 1989 instituting a nocturnal curfew on St. Thomas, St. John, and St. Croix, to protect public safety and welfare. Plaintiff was stopped on September 23, 1989 by FBI agents and federal marshals, who informed plaintiff that he was in violation of the St. Croix curfew. Plaintiff was traveling to clients to conduct their affairs, and to his grandmother's home to talk and pray with her.

On October 4, 1989, plaintiff filed a complaint in the District Court of the Virgin Islands seeking a declaratory judgment that Governor Farrelly's executive order imposing a curfew between the hours of 6 p.m. and 6 a.m. on the Virgin Islands was unconstitutional. At the time the complaint was filed, the curfew on St. Thomas and St. John had been modified to the hours between 8 p.m. and 6 a.m.; the curfew on St. Croix remained at 6 p.m. to 6 a.m. Plaintiff alleged that enforcement of the curfew was illegal because the executive order was unconstitutionally vague and overbroad in violation of the due process clause of the fourteenth amendment. Plaintiff further claimed that the executive order violated his right of freedom of association, freedom of religion under the first and fourteenth amendments, freedom of speech, the due process clause of the fourteenth amendment, and his right to interstate travel as guaranteed by the commerce clause of article 1, section 8, and the Virgin Islands Revised Organic Act of 1954.

This court, in its capacity as a district judge of the Virgin Islands sitting by designation, denied plaintiff's motion for a temporary restraining order on October 5, 1989. On October 11, 1989, the district court dismissed the complaint with prejudice. Moorhead v. Farrelly (Moorhead I), 723 F.Supp. 1109 (D.V.I.1989). The court found that plaintiff was unable to show either that the statute authorizing the imposition of a curfew was unconstitutional, that the Governor had acted beyond the scope of his authority under the statute in imposing the curfew, or that the statute was unconstitutional as applied. No appeal was taken from the order dismissing the complaint.

On December 18, 1989, plaintiff filed a second suit in the Territorial Court. The second suit sought identical relief to that sought in the first suit: a temporary restraining order prohibiting the defendants from implementing the nocturnal curfew. There were only minor differences distinguishing the two lawsuits. Harry Brandon, the Special Agent of the Federal Bureau of Investigation in charge of the Virgin Islands, was not named as a defendant in the second lawsuit. Another change was that the second suit was commenced in the Territorial Court rather than in the District Court. The final difference was the lawsuit was commenced at a time when some progress had been made toward restoring conditions on St. Croix to their normal state.

The Territorial Court found that plaintiff was not collaterally estopped from maintaining the second suit because it found that the controlling facts had changed:

The court will take judicial notice that electricity and telephone service have been restored to a substantial portion of the island and it has not been successfully disputed that utility workers are no longer working twenty-four hours a day.

Armed military police augmenting the local police force have left these shores.

Moorhead v. Farrelly (Moorhead II), Civ. No. 1989/887 (Territ.Ct.V.I.1989) slip op. at 4. In the course of its opinion, the Territorial Court further noted that the Governor had further modified the curfew as of December 18, 1989, so that it only applied to the hours between 2:00 a.m. and 6:00 a.m.

The Territorial Court concluded that the Governor had the constitutional and statutory authority to declare a state of emergency, and therefore found it necessary only to address plaintiff's contention that the curfew was no longer justified under the circumstances, and was therefore unconstitutional as applied. On December 22, 1989, the Territorial Court held that the conditions on St. Croix no longer justified the imposition of a curfew, and entered a temporary restraining order prohibiting defendants from implementing the curfew. That same day, the Attorney General contacted this court to seek an order invalidating the temporary restraining order entered by the Territorial Court.

The Honorable David V. O'Brien, the Chief Judge of the District Court of the Virgin Islands, had passed away Friday morning, December 22, 1989. At that time the Third Circuit had not designated an acting chief judge to fill the vacancy, and defendants did not expressly invoke Section 22 of the Revised Organic Act of 1954.¹ This court therefore declined to enter any order, and instructed the Attorney General to attempt to obtain a stay from the Territorial Court and to inform the Territorial Court judge of the difficulties in seeking immediate appellate review in light of the circumstances surrounding not only the holiday weekend, but more importantly the unexpected death of Chief Judge O'Brien.

This court then contacted Chief Judge John Gibbons of the United States Court of Appeals for the Third Circuit, the judicial officer responsible for overseeing the District of the Virgin Islands under Section 24(a) of The Revised Organic Act of 1954, 48 U.S.C. § 1614(a), to relay to him these developments. At about 7:00 p.m. on Friday, December 22, 1989, I was designated Chief Judge of the District Court of the Virgin Islands for the purposes of complying with 48 U.S.C. § 1613a(b) during the period of December 22, 1989 to January 8, 1990.

That same evening, at approximately 8:40 p.m., the Attorney General of the Virgin Islands again communicated with me. The Attorney General stated that he had been unable to contact either the Territorial Court Judge who had issued the temporary restraining order or the Chief Judge of the Territorial Court. The Attorney General also related his unsuccessful attempts to contact plaintiff. At about 8:44 p.m., Virgin Islands time,² in my capacity as the Chief Judge of the District Court of the Virgin Islands, I granted the Attorney General's application for a stay pending appeal. The court further directed the Attorney General to file a notice of appeal on Saturday morning with the Clerk's office, and to serve the papers on plaintiff as soon as possible. The oral order also provided for a telephone conference call with all counsel to hear arguments on the stay and to establish a briefing schedule for an expedited appeal.

The telephone conference occurred on Wednesday, December 27, 1989, at 1:30 p.m. During this conference call, plaintiff sought to lift the stay. He argued that the Attorney General had failed to comply with the requirements of Fed.R.App.P. 8 in that defendants had made no efforts to seek a stay in the first instance from the judge of the Territorial Court who had issued the injunction. Plaintiff offered to submit an affidavit from that judge stating that she was available on the Friday when the temporary restraining order was entered. The court has now received that affidavit. Plaintiff further argued that the Assistant Attorney General who represented defendants in the Territorial Court was present when the temporary restraining order was issued and failed to seek a stay pending appeal.

The court will not address the temporary stay until the date of the conference call, as once the terms of the equitable relief embodied in the oral stay were "fully and irrevocably carried out," that issue became moot. University of Texas v. Camenisch, 451 U.S. 390, 398, 101 S.Ct. 1830, 1835, 68 L.Ed.2d 175 (1981).³ The court will address in this opinion only whether the stay should be continued or vacated, as well as plaintiff's attack on this court's exercise of appellate jurisdiction.⁴

DISCUSSION

I. Appellate Jurisdiction

The court must, as a threshold to reaching the merits of the contentions as to the continuance vel non of the stay of the temporary restraining order, determine whether defendants-appellants have complied with the requirements of Fed.R. App.P. 8, and if not, whether a failure to do so deprives this court of jurisdiction over the appeal.

Section 23A(a) of the...