Virgin Islands Bar v. Government of Virgin Islands

• Decision Date: 02 October 1986
• Docket Number: 84/5 and 85/193.,Civ. No. 84/38
• Citation: 648 F. Supp. 170
• Parties: The VIRGIN ISLANDS BAR ASSOCIATION, Britain H. Bryant, John E. Stout, Plaintiffs, v. The GOVERNMENT OF the VIRGIN ISLANDS, Defendant. Brenda J. HOLLAR, Stedmann Hodge, Charlotte L. Poole-Davis, and Clarice A. Bryan, Plaintiffs, v. The GOVERNMENT OF the VIRGIN ISLANDS, Virgin Islands Bar Association and District Court of the Virgin Islands, Defendants. Petition to DISINTEGRATE the VIRGIN ISLANDS BAR ASSOCIATION.
• Court: U.S. District Court — Virgin Islands

648 F. Supp. 170

The VIRGIN ISLANDS BAR ASSOCIATION, Britain H. Bryant, John E. Stout, Plaintiffs, v. The GOVERNMENT OF the VIRGIN ISLANDS, Defendant.

Brenda J. HOLLAR, Stedmann Hodge, Charlotte L. Poole-Davis, and Clarice A. Bryan, Plaintiffs, v. The GOVERNMENT OF the VIRGIN ISLANDS, Virgin Islands Bar Association and District Court of the Virgin Islands, Defendants.

Petition to DISINTEGRATE the VIRGIN ISLANDS BAR ASSOCIATION.

Civ. Nos. 84/38, 84/5 and 85/193.

District Court, Virgin Islands, D. St. Thomas and St. John.

October 2, 1986.

COPYRIGHT MATERIAL OMITTED

James W. Diehm, Christiansted, St. Croix, V.I., for U.S. Dist. Court.

J'Ada Finch-Sheen, Charlotte Amalie, St. Thomas, V.I., for Government of V.I.

Brenda J. Hollar, Charlotte Amalie, St. Thomas, V.I., for plaintiffs Hollar, Hodge, Poole-Davis and Bryan.

Judith Turner, Christiansted, St. Croix, V.I., for V.I. Bar Assn.

Frank Padilla, Frederiksted, St. Croix, V.I., for petitioner in Civ. No. 85/193.

OPINION

ANNE E. THOMPSON, District Judge.

The consolidated matters before us are concerned with the requirements imposed upon attorneys by the Virgin Islands government attendant upon the privilege of practicing law in that Territory. The plaintiffs' complaints focus on two factors: the increase in the licensing fee for attorneys from $100 to $500 per year, and the creation of a unified "integrated" bar association in the Virgin Islands, membership in which is mandatory for all practicing attorneys.¹

I. Introduction

In 1955, members of the Virgin Islands Bar Association (then a voluntary organization of attorneys) petitioned the District Court of the Virgin Islands for an order integrating the bar. Misc. No. 11-1955. The draft rules filed with the petition contained the following preamble:

For the advancement of the administration of justice according to law, and for the advancement of the honor and dignity of the legal profession, and encouragement of cordial intercourse among the members thereof, for the improvement of the service rendered the public by the Bench and Bar, there is hereby organized, created and formed the VIRGIN ISLANDS BAR ASSOCIATION.

An order integrating the bar was signed by the Honorable Herbert E. Moore on March 2, 1956. The initial paragraph of that order read as follows:

The petition of the Virgin Islands Bar Association for the integration of the Bar of this jurisdiction having come on for hearing and this matter having been fully considered by the Court, and the views of the individual practicing attorneys having been heard, and after due deliberation thereon and the court being fully advised in the premises, and this Court now being of the opinion that integration of the Bar of this jurisdiction is in the best interest of the Court and the Bar and the administration of justice in the Virgin Islands ...

The Legislature of the Virgin Islands voiced its approval of the rules associated with the order the following year; the rules, as amended by court orders, are currently codified at 5 V.I.C. App. V, Part III. The rules discuss, inter alia, the powers of the integrated Virgin Islands Bar Association "VIBA", the membership requirement, and the means for adopting and amending bylaws. Dues for members are currently $100.00 per year.

In 1967, the Virgin Islands legislature passed legislation providing for the collection of license fees for persons and organizations engaged in businesses or trades. 27 V.I.C. § 302. In 1983, the Virgin Islands legislature considered legislation which would raise the level of licensing fees; at that time the fee for attorneys was $100.00. Pursuant to 4 V.I.C. § 442, all license fees paid by attorneys was paid over to the Law Library Fund, to be used for the maintenance of the law libraries in the judicial divisions of the District Court.

In 1983 the Director of the Virgin Islands Consumer Service Administration, Helen Joseph, was asked by the legislature to prepare a schedule of proposed changes in the licensing fees. (Deposition of Helen Joseph, Exhibit A to brief of VIBA in support of its motion for summary judgment hereafter, "Joseph", pp. 21-24). License fees were increased as part of the Omnibus Authorization Act of 1984, Act No. 4877, uniformly by the amount recommended by Helen Joseph and her staff. For attorneys the fees were raised $500 annually. Compare, Exhibit B to brief of VIBA in support of its motion for summary judgment (CSA recommendation), with Act No. 4877, pp. 20-28 (increases adopted by legislature). The following year 4 V.I.C. § 442 was amended to designate only $200.00, rather than the entire $500.00 of the license fee, to be paid over to the Law Library Fund. The $300.00 balance of the license fee was paid to the General Fund of the Treasury of the Virgin Islands.

The plaintiffs in Civil No. 84/5 challenge these developments at each step. They challenge the order integrating the bar as beyond the power of the judiciary acting alone; they challenge, on First Amendment grounds, both the validity of bar integration in general and the validity of the VIBA's actions since its integration; they assert that they have been deprived of due process by reason of the summary method employed by the District Court in ruling on disciplinary matters; and they argue that the increase in the licensing fee is confiscatory, a "double tax," arbitrary, and discriminatory to attorneys as a class.

The plaintiffs in Civil No. 84/38 assert that the fee increase is arbitrary and unrelated to any legitimate governmental purpose, and therefore that it violates their rights to equal protection under the law as guaranteed by the Fourteenth Amendment.

The petitioner in Civil No. 85/193 asks that the VIBA be made a voluntary organization, apparently for many of the reasons advanced by plaintiffs in Civil No. 84/5.

We will first address the motion of the plaintiffs in Civil No. 84/5 insofar as it is addressed to the issues related to the integration of the bar. We will then address the fee increase. Finally, we will address the remaining issues, including the due process claim, the motion of plaintiffs in Civil No. 84/5 to amend the complaint, and the various non-constitutional challenges to the VIBA's activities.

II. The Integrated Bar

The plaintiffs in Civil No. 84/5 argue that the very fact of the integration of the bar violates their First Amendment rights of free speech and free association. This stark assertion does not present a question of first impression. We are not directed to any support in the case law for the argument, and we have found none through our own research.² The contrary authority is overwhelming. Many states have considered like challenges to the integration of their bars, and all have found that the integration does not infringe on the individual rights of attorneys in an impermissible manner. See, e.g., Petition of Rhode Island Bar Association, 118 R.I. 489, 374 A.2d 802 (1977); Falk v. State Bar of Michigan, 418 Mich. 270, 342 N.W.2d 504 (1983). The United States Supreme Court in Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d 1191 (1961), found that the integration of a state bar through an organization strikingly similar to the VIBA did not, in and of itself, violate the constitutional rights of attorneys in that state.³ In Lathrop the Court found that the Wisconsin Supreme Court could "reasonably believe" that the integration of the bar was a suitable and proper means of improving the legal services enjoyed by the citizens of the state, and that,

the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity. Given the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association.

367 U.S. at 843, 81 S.Ct. at 1838.

The language quoted above reflects the decision of a plurality of four justices. Those four justices determined that the First Amendment issues raised with respect to specific "political" acts of the bar association were not properly before the court. Three justices concurred in the result, but would have reached the specific First Amendment issues, finding in favor of the bar association. 367 U.S. at 864-65, 81 S.Ct. at 1849 (opinions of Harlan, J., and Whittaker, J.). Seven justices, then, agreed that an integrated bar association, even one which "engages in some legislative activity," does not impermissibly infringe on the First Amendment rights of attorneys compelled to join as a condition of practicing law.

At Count V of their complaint, the plaintiffs in Civil No. 84/5 contend that the order integrating the bar was ineffective because "in order to integrate a bar association, the legislature must pronounce that the general welfare of the populace requires the bar to be treated as a corporate body." In their brief in support of their motion for summary judgment, these plaintiffs argue that this contention is supported by language in Lathrop, 367 U.S. at 825, 81 S.Ct. at 1828, where the Court notes that the Wisconsin bar was integrated "through an interplay of action by the legislature and the court directed to fashioning a policy for the organization of the legal profession." This language in Lathrop does not support the plaintiffs' argument that interplay between the legislature and the courts is a necessary predicate for the integration of the bar. The Court referred to the history of the integration for the purpose of determining the presence vel non of appellate jurisdiction. 367 U.S. at 824, 81...