Moorhead v. Farrelly, Civ. A. No. 1989-222.

• Decision Date: 11 October 1989
• Docket Number: Civ. A. No. 1989-222.
• Citation: 723 F. Supp. 1109
• Parties: Jeffrey MOORHEAD, Plaintiff, v. Alexander FARRELLY, et al., Defendants.
• Court: U.S. District Court — Virgin Islands

723 F. Supp. 1109

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

Civ. A. No. 1989-222.

District Court of Virgin Islands, D. St. Croix.

October 11, 1989.

Jeffrey Moorhead, Hodge & Sheen, Christiansted, St. Croix, V.I., pro se.

Lawrence Acker, Asst. Atty. Gen., Justice Dept., and Roland B. Jarvis, Asst. U.S. Atty., Christiansted, St. Croix, V.I., for defendants.

BROTMAN, District Judge, Sitting by Designation.

On October 5, 1989, this court denied plaintiff's motion for a temporary restraining order challenging Governor Alexander Farrelly's authority to enact and enforce a curfew on St. Croix. The court also set a hearing for a preliminary injunction for Wednesday, October 25, 1989. Currently before the court is defendants' motion to dismiss plaintiff's complaint. For the reasons stated within, this court will deny plaintiff's request for preliminary relief, and will grant defendants' motion to dismiss.

I. FACTS AND PROCEDURE

Hurricane Hugo swept through the Virgin Islands on September 17-18, 1989, causing widespread devastation and destruction on the Islands. In addition to severe property damage, Hugo caused 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 or were released from custody. In the storm's aftermath, reports of widespread looting and violence were prevalent. This court takes judicial notice of the continued devastation, having first hand knowledge of the destruction of homes and buildings, the lack of power and water, and the continued difficulties in communication and travel.

On September 19, 1989, Governor Alexander Farrelly proclaimed a state of emergency to be in effect for the Virgin Islands. The Governor also issued an executive order on September 21, 1989 instituting a nocturnal curfew between the hours of 6 p.m. and 6 a.m. on the Virgin Islands 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 visit clients and conduct his clients' and his personal affairs, including a visit to his grandmother's home to talk and pray with her.

On October 4, 1989, plaintiff filed a complaint for declaratory judgment in federal district court that Governor Farrelly's executive order imposing the curfew 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 alleges 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 alleges that the order violates 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, 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.

Defendants raised several procedural defenses at oral argument, but the court, in considering the urgency of the matter, found it necessary to address the substantive issues raised. This court denied plaintiff's motion for a temporary restraining order on October 5, 1989, but ordered a hearing for a preliminary injunction for Wednesday, October 25, 1989. The court, in its order, did not address defendants' motion to dismiss plaintiff's complaint. For the reasons stated herein, the court will now grant defendants' motion to dismiss, deny plaintiff's motion for a preliminary injunction, and shall enter an amended order cancelling the October 25th hearing for a preliminary injunction.

II. DISCUSSION

A. PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

To obtain preliminary relief, plaintiff must show (1) irreparable harm to plaintiff if preliminary relief is not granted; (2) the balance between this harm and the injury that granting the relief would inflict on the defendant tips in favor of the plaintiff; (3) the probability that plaintiff will succeed on the merits; and (4) relief is in the public interest. 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948, at 430-31 (1973). Because plaintiff can not establish the probability that he will succeed on the merits, his motion for preliminary relief, including a preliminary injunction, shall be denied.

1. Probability of Success on the Merits

Although plaintiff's complaint fails to articulate the grounds for his challenge, constitutional attacks on curfews imposed in an emergency fall within three categories: (1) the statute authorizing the executive to impose a curfew is unconstitutional; (2) the executive exceeded his or her authority under the statutory scheme; or (3) the statute was unconstitutional as applied. See, e.g., American Civil Liberties Union v. Chandler, 458 F.Supp. 456, 459-61 (W.D.Tenn. 1978). Plaintiff also contends that the Governor does not have the authority to impose the curfew under the Revised Organic Act of 1954.

a. The Governor's Authority to Impose a Curfew

The Governor of the Virgin Islands has statutory authority to impose a curfew in an emergency. Section 11 of the Revised Organic Act of 1954 provides that the Governor "shall have the power to issue executive orders and regulations not in conflict with any applicable law." The Revised Organic Act of 1954, ch. 558, 68 Stat. 497 (1954).¹ Plaintiff suggests that section 11 provides an exhaustive list of the Governor's powers during a crisis or disaster. The Governor, however, has power to act under the Virgin Islands Territorial Emergency Management Act ("Act"), V.I.Code Ann. tit. 23, §§ 1125-1135 (Supp.1988).² Under this Act, the Governor is responsible for meeting the dangers to the Virgin Islands and its people presented by emergencies or major disasters. Id. § 1125(a). The Governor may declare a state of emergency by executive order, and the state of emergency "shall continue until the Governor finds that the threat or danger has passed or that the response and recovery has progressed to the point that a state of emergency no longer exists, whereupon he or she shall terminate the state of emergency by Executive Order or Proclamation. No state of emergency may continue for longer than 30 days unless renewed by the Governor." Id. § 1125(c). The Governor is empowered under the Act to "control ingress and egress to and from an affected area and the movement of persons within the area" and may "take any other action he or she deems necessary." Id. §§ 1125(f)(7), (10).

The clear language of the Act permits the Governor to restrict the movement of citizens. The existing curfew restricts the movement of persons within the affected area, that is, the island of St. Croix. Additionally, the statute permits the Governor to take any action he deems necessary during the state of emergency. Plaintiff, therefore, would not prevail on the theory that the Governor acted without authority.

Moreover, the statutes authorizing the Governor's actions are constitutional. The exercise of the Governor's powers to order curfews and to restrict the movement of citizens is restricted to periods when he has ordered a civil emergency.³ The statute limits the Governor's authority to restrict movement of citizens to and from, and within, "affected areas," leaving citizens free to move about nonemergency areas of the Virgin Islands, if any exist.

While first amendment rights are accorded special protection, they are not absolute. See Konigsberg v. State Bar of California, 366 U.S. 36, 49-51, 81 S.Ct. 997, 1005-07, 6 L.Ed.2d 105 (1961). The statute here permits a limitation on the exercise of such rights only in very unusual circumstances where extreme action is necessary to protect the public from immediate and grave danger. The statute is not designed to regulate in any way, nor does it have the effect of regulating, the content of speech or other form of expression. Rather, it is a regulation of conduct that is not designed to limit or control the expression of ideas but that unfortunately has an incidental impact on the exercise of first amendment rights. Likewise, freedom to travel may be subject to reasonable limitations as to time and place, and under appropriate circumstances a nocturnal curfew may be a lawful and effective means of controlling or preventing imminent civil disorder. United States v. Chalk, 441 F.2d 1277, 1283 (4th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 258 (1971); American Civil Liberties Union v. Chandler, 458 F.Supp. 456, 458 (W.D.Tenn.1978). The court, therefore, finds it unlikely that plaintiff will prevail on a claim that the statutes authorizing the curfew violate either his first amendment rights or his right to travel under the commerce clause.

b. The Governor Acted within the Scope of his Authority

Plaintiff will not prevail on his claim that the Governor acted beyond his authority by issuing a vague and overly broad order. The standard for evaluating regulations of conduct that have an incidental effect on first amendment freedoms is that the restriction can be no greater than is essential to the furtherance of the government interest that is being protected. See, e.g., United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); United States v. Chalk, 441 F.2d at 1280. The limitation on the use of emergency powers by the executive is that the declaration of a state of emergency, and the restrictions imposed pursuant to it, must appear to have been reasonably necessary for the preservation of order. United States v. Chalk, 441 F.2d at 1281 (citing Note, Judicial Control of the Riot Curfew, 77 Yale L.J. 1560, 1568 (1968)).

The imposition of a...