Tonkin v. Michael, Civ. No. 364/72
| Decision Date | 05 October 1972 |
| Docket Number | 367/72 to 369/72.,Civ. No. 364/72 |
| Citation | 349 F. Supp. 78 |
| Parties | Ronald H. TONKIN, Attorney General of the Virgin Islands, Plaintiff, v. Honorable Cyril MICHAEL, Presiding Judge of the Municipal Court of the Virgin Islands, Nominal Defendant. GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Henry MARTIN, Jr., Defendant. GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Louis HENLEY, Defendant. GOVERNMENT OF the VIRGIN ISLANDS, Plaintiff, v. Patrolman Al MITCHUM, Defendant. |
| Court | U.S. District Court — Virgin Islands |
Ronald H. Tonkin, Atty. Gen., for plaintiffs.
Alexander Farrelly, John Maduro, Charlotte Amalie, St. Thomas, V. I., for defendants.
Petitioner, the Attorney General of the Virgin Islands, seeks to challenge, by writ of mandamus or prohibition, or in the alternative, by writ of review, the propriety of the action of a Municipal Court judge1 in appointing private prosecutors to prosecute three separate complaints against three police officers. The complaints encompass three separate incidents involving the officers' behavior toward the complainants while said complainants were being arrested.2 After reviewing the facts of each incident, the Attorney General filed complaints against the citizens who had been arrested, but refused to file cross-complaints against the police officers as requested. Upon being notified of those refusals, the individuals appeared before the Clerk of the Municipal Court and swore out complaints. Some time afterward, their private counsel sought leave of Court to appear as private prosecutors on behalf of the Government in each of the cases. Acting under the apparent authority of Rule 132,3 the trial court granted leave to appear in that capacity. Thereafter, the Attorney General made special appearances in each of the cases pending against the policemen and proposed that the trial court dismiss the complaints on the basis that it lacked both jurisdiction and authority to hear them. The trial court issued its opinion and order of July 19, 1972 denying the motion.
Petitioner contends that the denial of his motion is an unauthorized usurpation of an executive function inasmuch as the authority to prosecute violations of the laws of the Virgin Islands is vested exclusively in the Attorney General by virtue of Section 114(a)(2) of Title 3 of the Virgin Islands Code.4 This being so, the petitioner argues that the action of the trial court is violative of the constitutional doctrine of the separation of powers. The thrust of petitioner's argument has merit.
Before reviewing the significance of the trial court's action below, it would be appropriate to trace the history of the rule in question and the evolution of the misdemeanor prosecutorial powers given to the Attorney General of the Virgin Islands. Prior to the transfer in 19625 of misdemeanor prosecutorial powers to the Attorney General, misdemeanors were within the jurisdiction of the United States Attorney to prosecute in the Municipal Courts of the Virgin Islands (which were, at that time, called "Police Courts"). Due to the inadequate staffing of the United States Attorney's office and his preoccupation with the prosecution of felonies in both divisions of the District Court, misdemeanors were more often than not tried in the Municipal Courts without a prosecutor, or, unhappily with the judge assuming the dual role of prosecutor and judge. It was not surprising then that the court would frequently appoint a private attorney as a prosecutor or would accept the offer of a private attorney to prosecute a misdemeanor in which the attorney represented the complaining witness.
The practice thus came about, not because the U. S. Attorney refused to prosecute misdemeanors, but rather because of his inability to prosecute both misdemeanors and felonies. The basis for the practice was acquiescence rather than a refusal to prosecute. To a lesser extent a similar practice developed in the St. Croix Division of the District Court with regard to certain kinds of prosecutions when the United States Attorney found it difficult to handle felony prosecutions in St. Croix in addition to his work load in the St. Thomas Division. Those private prosecutors appeared only after having been granted permission to do so by the U. S. Attorney.
Paralleling the development of the local private prosecutor practice is the evolution of the role of the Attorney General in relation to the prosecutorial function. Under the 1959 amendment to the Revised Organic Act, the Department of Law was first created6 as an agency of the Office of the Governor vested with primary, though limited, authority for litigating civil matters into which the Government was drawn. Yet, the responsibility for the conduct of all criminal matters, felonies and misdemeanors, in the District and inferior courts, remained within the bailiwick of the United States Attorney as established in the Revised Organic Act of 1954. Shortly thereafter, by an act of the Legislature in 1962,7 the Department of Law was established as a separate executive department and the Attorney General was given the power and duty to prosecute in the inferior courts all offenses against the laws of the Virgin Islands and, in addition, all duties and functions with respect to the Virgin Islands government previously assigned to the United States Attorney solely by virtue of the laws of the Virgin Islands were also transferred to the Attorney General. From this there evolved a dichotomy in the misdemeanor-felony prosecutorial function in the Virgin Islands fashioned by the evolution of the form and growth of the territorial government.
Basically, it reflects the gradual move toward a higher degree of territorial autonomy. Cast in this light, I believe that the history just reviewed is most pertinent to the issue at hand, namely, whether the Attorney General has been empowered with primary and exclusive authority for the misdemeanor prosecutorial function.
The Legislature in Title 3, section 114 has indicated that the Attorney General has the power and duty "to prosecute in the inferior courts all offenses against the laws of the Virgin Islands." Through this statute, the Attorney General has been given the mantle of broad discretion and exclusive control over the misdemeanor prosecutorial function.
The Department of law is part of the Executive, and not the Judicial Branch of the government. It is the Attorney General who must determine whether, where and how to prosecute. For good or for ill, certain wide areas of our criminal justice system must be committed to the discretion of public officials. That public prosecutors do exercise enormous discretionary authority is widely recognized. Kaplan, The Prosecutorial Discretion—A Comment, 60 N. W. 4 L.Rev. 174 (1965-66); Comment, The Right to Non-discriminatory Enforcement of State Penal Laws, 61 Colum.L.Rev. 1103 (1961); Note, Prosecutor's Discretion, Pa.L.Rev. 1057 (1955).
Having held that the Attorney General is the prosecuting authority for misdemeanors in this Territory, I turn now to the second contention made by the petitioner that he and certain designated members of his staff have the sole right to sign and file complaints. The prosecution of misdemeanors are instituted on the basis of a complaint, a written statement of the essential facts constituting the offense. Petitioner's contention is based principally on the strength of a strained analogy between the Federal Rules of Criminal Procedure and those of the Municipal Court. While Rule 7 of the Federal Rules of Criminal Procedure requires the signature of the United States Attorney on the information in a felony case, this is no valid reason to apply that same requirement to the Municipal Court Rules by implication or otherwise. Rivera v. Government of Virgin Islands, 375 F.2d 988, 6 V.I. 155 (3rd Cir. 1967) ().
Petitioner refers to and relies, in part upon section 114(c) of Title 3 of the Virgin Islands Code8 as conferring upon him the exclusive right to sign and file complaints. I disagree. That section of the Code merely provides that the Attorney General, his designated assistants and his complaint clerk are empowered to administer oaths in connection with the preparation and filing of complaints. It does not give such personnel the exclusive authority to sign or file complaints. A private citizen, in my opinion, is still authorized to file a complaint if the prosecutor refuses or neglects to do so. However, as stated above, and for policy reasons, I believe that the public prosecutor must supervise the actual conduct of the case. First, in the interests of just, orderly and efficient administration of law, a public officer should be vested with control over the actual prosecution of the case. Second, in the context of law enforcement, it is desirable to seek uniformity of prosecutorial policy. Our statutes bestow this function upon the Attorney General. Therefore, once the complaint is filed, our system vests in the Attorney General the authority to manage its disposition. The determination of whether and when to prosecute "is a matter of policy for the prosecuting officer and not for the determination of the courts." District of Columbia v. Buckley, 75 U.S. App.D.C. 301, 128 F.2d 17 (1942) and United States v. Woody, 2 F.2d 262 (D. Mont.1924).
Among the powers held by the Attorney General is the common law power to invoke nolle prosequi.9 That power is centuries old and, in the absence of statutory rule to the contrary, has been recognized to be in existence in many jurisdictions, including the Virgin Islands. In United States v. Brokaw, 60 F.Supp. 100 (D.C.1945), the court refused to grant a petition to show cause why an order of nolle prosequi10 should not be vacated. The Court commented that the prosecutor is the representative of the public in whom is...
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...vesting of discretion in the hands of the prosecutor has been previously recognized in Virgin Islands jurisprudence. See Tonkin v. Michael, 349 F.Supp. 78 (D.Vi.1972). Tonkin is also notable insofar as it describes a wonderful—and highly apposite—anecdote from the English Common Law, which ......
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