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GOVERNMENT OF THE VIRGIN ISLANDS, Plaintiff, IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN kkk KK vs. ALPHONSE STEELE, Defendant. CRIMINAL NO. 463/89 23 V.I.C. SECTION 1522(3) ORIN L. ALEXIS, Esquire Assistant Attorney General Department of Justice 49-50 Kronprindsens Gade St. Thomas, Virgin Islands (Attorney for Plaintiff) VINCENT. F. FRAZER, Esquire ste bow Post Office Box 4982 St. Thomas, Virgin Islands . (Attorney for Defendant): . HODGE, Presiding Judge ~ “No. 9 Contant: ca “‘Boto, Plaza. ~.---> o008sol MEMORANDUM OPINION _. (Filed: .Qctober 29,.1991) - -., The two questions presented by Defendant’s Motion to Dismiss are: (1) whether 23 V.I.C. 1522(3) creates a criminal offense for a curfew violation, and if not, (2) whether the Governor has the authority to create such a criminal offense. For the reasons et . se pnd will géant Deferidant’s “Motion” to Dismiss. Ser a rs which, folloy,.. #his. court. answers both Erode ihe y in ne snegative, . . t a4 . i a ug! ; ao ee kh . GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 FACTS On September 17-18, 1989, Hurricane Hugo swept through the Virgin Islands destroying homes and businesses and leaving residents without electricity, water, communication and basic services. The community faced chaotic conditions, its infra- structure was decimated, and many residents needed emergency relief. Governor Alexander Farrelly immediately mobilized the National Guard by an administrative Order dated September 17, 1989, pursuant to T.23, Ch.19 of the V.I. Code (the National Guard Act of 1972), and on September 19, 1989 issued a Proclama- tion declaring a State of Emergency. The Governor also imposed a territory-wide curfew by a handwritten addendum on the bottom of the National Guard mobilization Order of September 17, 1989. The handwritten curfew addendum, stated, in full, ‘as follows: “Pursuant to my authority granted by Title 23, section 1522 (3) Virgin Islands Code, I hereby declare. a.curfew,, effective 10:00. p.m. Sunda September 17,°1989 and ‘direct ‘that “all persons’ ie - other than ‘etiergency service personnel. and ‘“.- 4" persons on. emergency: travel. shall remain off: toe the streets and public areas of the Territory of the Virgin Islands until further notice." ga, UL ee eae “No time frame was given outlining when the public could leave their homes or places of employment, or return thereto. The curfew was not limited to a particular time of day, and it was so broad ‘Ehat its ial easy eee to all persons 3h3 the’ entire: aay for every day that: it' was ‘in éffect, and. through- al aye A ES Tate et ane ena, Wee eer tee exceptions applied... The, Surfew. eddendum did - not. indicate that. mat “out the: entire. ‘vetritory,. sunless - -one : oF: the Menetgency". hee Vee ate 8 GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 its violation would be treated as a criminal offense, and did not cite any authority for such treatment. Two months later the Governor, for the first time, indicated that a curfew viola- tion would be treated criminally. This indication was made in the preamble of the November 17, 1989 proclamation, which continued the curfew, by the following WHEREAS phrase: "WHEREAS, I have determined...that a violation of said curfew shall be treated as a misdemeanor."1/ 1/ A PROCLAMATION BY THE GOVERNOR OF THE VIRGIN ISLANDS EXTENDING THE CURFEW. WHEREAS Title 23, section 1522, Virgin Islands Code, grants the Governor of the Virgin Islands of the United States the authority to declare a curfew; and oo WHEREAS. I declared a “curfew pursuant to the’ above authority - on: “thé avth day -of: -Séptember, A. Dai 1989;.. and: WHEREAS I have Aeceemined that it is in the public! s _gpest ., interest that the curfew be continued, and that. a violation of “said” curfew “shail be ‘treated: as a i S~ 2 demeanor. . TE aod ~ . of the Virgin Islands of the United States, by virtue of _the authority vested. in me. by the Revised Organic Act of tinuance of the curfew for the entire Virgin Islands this 17th day of November, A.D., 1989. IN WITNESS WHEREOF, I have hereunto’set my hand and caused the Seal of the Government of the Virgin Islands of the United States to be affixed at Charlotte Amalie, St. Thomas, Virgin noe this 17th day of November, AD," 2,989. nye ; he ake een - ‘the Virgin Islands, as amended, :do" ‘héreby" proclaim: the: cone - er ne es ,, Alexander .A. Farrelly, Governor... “Now, “THEREFORE, i; Alexander A. Farrelly,’ Governor j:_ [a get . - a $ Md 2| oft, % Peay . its cancellation. = © GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 The curfew was extended by Proclamations on October i7, 1989, November 17, 1989, and December 17, 1989, and was canceled by a final Proclamation on January 3, Near, In the Proclama- tions, the Governor cited 23 V.I.C. section 1522 as his authority for declaring the curfew, and the Revised Organic Act of 1954, as amended, as his authority for proclaiming the continuance of the curfew. However, no authority was cited for treating a curfew violation as a misdemeanor. None of the Proclamations narrowed the breadth of the curfew order, although various news releases from the Government Infor- mation Office announced the gradual reduction of the hours during which the curfew would be in effect. On September 19, 1989 a press release issued by the Government Information Office was distributed ba the media and aired on local radio indicating: ‘that ' Subsequent press releases. further reduced the curfew hours until 7? » During the period of the: curfew several. residents were ‘ arrested’ and criminally charged for violating. 23 Vv. I.c. section -1822(3) 0" in ‘this’ case, the “défendant,, a. fisherman, was - ‘arrested ° at 2:30 A.M. on October 27, 1989 for violating the curfew. Police arrested him in front of his home, whicH is adjacent to the Coki Point road in St. Thomas, while he was fixing the Wehicle from which he sells his catch.” He was arraigned on: - ee . +. aie ote on oa, . * ae errs oure im we om wy wees tee seas ae Per Fy Piya Se oe ae 2/ Title 23 'v. I. c. ” bection 1125 (c) limits. ‘the duration of ee a State of Emergency to 30 days unless renewed by the Governors, put” is ‘silent as to” ififting: the. “duration” of: a: ‘eurtews “the curfew: would: be: Limited to. the. hours: of 6300. Behe to- 63 00° ‘A. Me. eee GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 January 4, 1990 at which time he pleaded "Not Guilty" to the curfew violation. that even if the curfew order was valid, there is no legal basis for its enforcement as a criminal misdemeanor. Specifically, he contends that 23 V.I.C. section 1522(3) merely authorizes the Governor to declare a curfew, that it does not create a crime, Defendant moves to dismiss the case contending and that the Governor has no power to create a crime for a curfew violation where no such authority has been vested in him by the Organic Act, the Local law, or the Common law. DISCUSSION A. BACKGROUND In the first test of the Hurricane Hugo emergency orders, oe District Court of the Virgin Islands held that the Governor “Woorehéad v. parrelly, 24 V.i. 318 (D.V.I. 1989) Faced with, o, wv ile ‘eo ayes the District court. held that. pee eee was justified as an Cad Do a Oe .* eitective means of maintaining ae ena order” At the tine of the civil -Challengé: to ‘the curfew orders, ‘the, Gov eEnor chad nee ee ¥ acted’ within’ oe scope ‘of his authority in imposing ‘the curfew. - yet declared curfew violations to be crimes. “That was nee Bene until the Proclamation of November 17, 1989. In this case, no od one questions whether the Governor has the authority to declare 31 In mother vest, “Judge Henry: smock of: the marritoriale? and dismissed,the. curfew ‘case involving’.a- minor.-: In: ‘the: : Recember: Pie APBD 1 Nov? 28), moe ee Rpconerd Tranecr ipkr. as eles Interest of:_ , Minor, Juvenile No: - 98/89, (Terr.ct. . Gaurt. held that.the curfew .orger was.vague and. unenforceable, fey ae | |, danger. Or. insurrection, . GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 a curfew, or whether the curfew order is void for vagueness. Instead, the issues we face in this case are (1) whether 23 V.I.C. section 1522(3) creates a criminal offense for a curfew viola- tion, and if not, (2) whether the Governor has the authority to create such a criminal offense. B. ORGANIC ACT The Revised Organic Act of 1954, as amended, (Organic Act), applies the Separation of Powers Doctrine to the Virgin Islands. Luis v. Dennis, 20 V.I. 373, 751 F.2d 604 (3d Cir. 1984). Section 11 of the Organic Act vests the executive power of the Virgin Islands in the Soh fois) who has control of all depart- ments, instrumentalities, and agencies of the Executive Branch. It. also Crt him the power to declare martial law in cases of rebél lion, . ‘invasion. or imminent “danger, and to dispatch: military ri ~ forces | ‘in ‘the’ Virgin Islands ‘in the event of ‘disaster, imminent Section 2 of the, eee organic Act, as amended, establishes . “the | Legislative Branch of the Virgin: islands which’ is ‘charged, among . other things... with the mesponeibi Ts ty to create crimes. and to define the applicable punishnent. It is settled law that in our system of government declaring crimes and defining penalties are Legislative functions. See, United States v. Hudson and Goodwin, 11 U.S. 32, 33; 3 L.Ed. 259, 260 (1812); United States v. Eaton, 144 U.S. 677, 688; 12 S.Ct. 764, 767 (1892); Viereck v. ‘United States; +218 -U:8.:236,' 2417: 63.8, Ct: 561,-563, (1943)... 8 ot 2 ts Unger. fhe Separation ' ee Powers Doctrine, the Executive . ee we pel ae, fe = besos 2ah% ee Se ome = . . oer sete the, tr a ve, fee - . mn . iis . fone gee th Cap be ee ‘ G ee a ot = ete in. -pertinént” ‘part; ras: “follows te. ° GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 Branch cannot create or define crimes. See, 21 Am. Jur. 2d, Criminal Law, section 14; 16 Am. Jur. 2d, Constitutional Law, section 319. Also, a court cannot criminally punish a person for committing an act which has not been made a criminal offense by the Legislative branch of government. “We cannot punish a person for committing an act which has not been made a criminal offense by the Legis- lative branch of government." Government of the Virgin Islands vs. Brown, 15 V.I. 541, 547; 571 F.2d 773, 777 (3d Cir.1978). In the famous Steel Seizure case this principle of Separation of Powers was emphasized as follows: “In the framework of our Constitution, as amended, the President’s power to see that the laws are faithfully executed refutes the idea that: he is to be a lawmaker. “The constitution. - 8.2 Limits his -*functions. in the.lawmaking* process © Myths ’ to the recommending of laws he thinks wise ‘and - the vetoing of laws he thinks bad. And the -, constitution -is neither silent ‘nor equivocal | * about who Shall ‘make’ laws‘ which” the ‘President * . is: to execute." : cee Sata orm . “ ‘e tow eh eo, ace Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 587; 72 S.Ct. 863, 867; 96 Li Ed. “1153; 1158" (1952) © Similarly, ‘the Revised. st set Organic Act, as amended, vests no authority in the Governor to create any crime, whether misdemeanor or felony. Cc. LOCAL LAW Virgin Islands law does not create a crime nor provide _- a criminal Pumshnent for. violation of..a curfew impoged by the wand] aragsce ep Softee ~~ Governor pursuant ‘to 23 v: I. C “section 1523 (3), “which provides, Pie Los ae wT HOES Settee re attics gai, ne OU pe Se tg te ne air * GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 "Whenever the Governor orders part or all of the military forces of the Virgin Islands into Territorial Active Military Service under Section 1519 he may, by written order,--- *k* ke (3) Declare a curfew during such periods and with respect to such areas and persons as in his discretion the public safety requires." This statute merely grants the Governor the authority to declare a curfew, and is a part of the National Guard Act, not the Criminal Code nor the Territorial Emergency Management Act. Before a person’s acts may be categorized as criminal, fundamen- tal fairness and due process demand that these acts must first have been defined and made criminal by the Legislature. A crime is generally made up of. two elements; (1) a prohibited Sonduct -ahd 42)" é resurtihg. penalty. »> Both: ‘elements. must, be enacted, nye Pay . the feeb Nad Ye a V.I.C. section 1; Black's Law Dictionary “th ‘Ba. y S39y 037" am, “Jurs 20 criminal ‘Law, "section 6. ti this “°* “case, neither ‘of. these two elements: is. present in. 237 Vets Cite section 1522(3); Oey, it does noe create a criminal offense for’ avcurfew violation... os “ a a a ei ; Many state legislatures which empower their governors or executive officers to declare a curfew during an emergency or natural disaster also enact legislation making a violation of ‘the curfew a criminal eer enss: | For- St od in-the State hein Massachusetts, legislation provides that. persons violating a ‘curfew declared: by ‘the ‘Governor "shail ‘be ‘punished. by” imprison- eet neve ‘eon: fot. ‘nore * “whan: ‘six: “nohths' or" einied ‘fox: not “ngee: “than: Ptney. GOV'T. v.. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 $500.00, or both." Mass. Ann. Laws Ch. 40, 37A (1990). Similarly, Pennsylvania law imposes a fine of up to $300.00 or imprisonment for up to 30 days, or both, for curfew violations. 53 P.S. section 30360 (1989). Other jurisdictions impose civil and/or criminal penalties. In Maryland, for example, legislation provides that civil penal- ties cannot exceed a fine of $1,000.00 for each curfew violation, and the civil penalty may be imposed in lieu of or in addition to a criminal penalty punishable by a fine of up to $1,000.00 or imprisonment for up to six months, or both. Md. Ann. Code Art. 41, section 2-101(2) and (5)(g). In the District of Columbia, only ‘civil fines, penalties, and. fees are imposed by law as sanctions for violating a curfew declared by the Mayor. , D.C. Code section 6- AR Oe d ---The’ Virgin: Islands. se law. in issue: . dos - not. provide for: criminal 1 nor civil penalties. Thus, it is reasonable. to infer aoe See ae ee order to enforce a declared curfew. The record does not eral ': whether” such ‘ait ‘Adbinistrative scheme: for ‘curfew enforcement has’ been promulgated to date, but it is clear that none was implemented during this curfew. Since the Organic Act vests in the Legislature the authority to create crimes, that body could not adbicate- its crime—creating: authority to the eh alld tbl See, odge v- Government, of the Virgin Islands, 19 V. 1. 602 (D.V... a ooeet oh Ey tae eye” otis ee ee 1983); In the. Matter of the ‘Application ‘of Deverita, carty + procedure | would. have: been. established", by: the Executive: Branch. re nelle ‘déuraivaie-, For’ Aanitss ven: ‘ts ‘thie’ ‘Bat; x98?! “sti Supp ?-a6e ‘pew GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 July 23, 1982); Virgo Corporation v. Paiewonsky, 6 V.I. 256, 275, 384 F.2d 569, 578-579 (3d Cir. 1967). Thus, the authority granted by the Legislature to the Governor in 23 V.I.c. section 1522 to declare a curfew does not include the authority to create a misdemeanor or a felony for a curfew violation. Similarly, Title 23 V.I.c. section 1121, et. seg., (the Virgin Islands Territorial Emergency Management Act) gives no power to the Governor to declare crimes, even though he is given broad authority to do, among other things, the following: "(7) Control ingress and egress to and from an affected area, the movements of the persons within the area and the occupancy of premises.... (10) Take any other action he deems’ necessary." -, 23 V.I, section.1125(f) ... Subsection .7 by: implication:.gives. the . Go¥ernor the: duthority’ to-declare 'a-curfew since ‘it-allows him’..;.:. to control the movement of residents affected by a disaster. “See,” Moorehead - ve “Farrelly, Supra’ “However,” ‘this aged ee" : Jauthorize: him: ‘to create ' a crime. by" Amplisation,.. The, catchall. provision of Subsection 10 gives the Governor the flexibility, . in conjunction with 23 V.I.c. section 1522, to act during an emergency to ensure the safety of the public. While it may seem that this provision allows the Governor to do whatever he wants during an emergency, his actions are limited to those that are " Sonstitutionalty and legally authorized. - See; .Gov’t.-v. Brown,.- supra. of ore ange Faiz ees Moreover, ‘the Governor could not: have received such authority | * ate ae ‘from ’ arco” wa Wits "Bectiiont '3tb)" wilich’ iproviaes ‘for. general”: GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 penalties for crimes where no penalties are specifically prescribed by law. 14 V.I.C. section 3(b) states, in pertinent part, as follows: "(b) When... (1) An act or omission is declared by this Code or other law to be a crime er public offense, but without desig- nation thereof as either a felony or a misdemeanor; and (2) no penalty therefore is prescribed by this Code or other law.... the act or omission is punishable as a misdemeanor." This provision applies to cases where the act or omission has already heen declared a. crime or public offense by local or . federal law. Since neither the local nor federal laws make a violation of such. an, oa teed curfew. a crime or public. offense, a7 S14: Vite. section. 3.(b) -is, not. applicable here, =: in ‘this. cage, ... | the handwritten addendum which declared the ‘curfew does not con- ee ‘a “wlaw decldving 7 an’ act to Bea’ ‘crime'as contenmpratea by” ‘y14°N. I. a section 3(¢b}. - Indeed -.. if subsection. 3.(b). were .applicaz ble | in this case, there would have been no need for the Governor to declare it a misdemeanor. Furthermore, if the Legislature intended to make a violation of an emergency curfew a criminal offense it ceuld have done so expressly, as it did when it established a non-emergency child- Ne *. ry By letter dated October 9, “1991, v. I. Senator Arturo . -- Watlington :advised the: Vel. Attorney. General ‘that he.is .. + .», presently proposing legislation: to make | a curfew ‘violation ~ +0, er iminay tte? &. hone. Segal getetcel Samy A : GOV'T. v. olen MEMORANDUM OPINION CRIM. NO. 12 curfew law to keep minors off the streets. Title 14 V.I.C. section 481. In enacting that child-curfew statute the Legisla- ture on April 28, 1977 created a misdemeanor offense for a second or subsequent violation for which parents may be fined up to $500.00. Clearly, it had the opportunity to make a criminal offense of an emergency curfew violation when in 1984 and 1986 it amended the Virgin Islands Territorial Emergency Management Act (23 V.I.C. section 1121 et. seq.). It also had the oppor- tunity to do so in 1988 and 1990 when it amended the National Guard Act (23 V.I.C. section 1519 et. seq.). There is no doubt therefore that the Legislature did not intend to make 23 V.I.C. section 1522 a criminal law, and that the Governor cannot usurp the legislative EY to create a criminal offense when the Legislature has not chosen to do so. Moreover, if the Governor | can. declare. a. curfew. violation: to. be a misdemeanor during. this, emergency, there would be nothing, to shhh athe him from. declaring © 2s 2 - . 2 1 J ~ Gt! to: ‘be’ a Felony auring. ‘the next’ emergency! Accordingly, the foregoing establishes beyond doubt that the Governor has no authority under local law to create a criminal offense for a curfew violation. D. COMMON LAW This court rejects the Government’s argument that curfew violations can be prosecuted as common law criminal offenses. Although the rules of common law are the rules of decisions in Virgin Islands courts, they only apply in the absence of local GOV'T. v. STEELE MEMORANDUM OPINION CRIM. NO. 463/89 3/ laws to the contrary. Strict and specific language defining criminality and punishment is incorporated into Virgin Islands criminal statutes. Because 23 V.I.C. section 1522 specifically grants the Governor the authority to declare a curfew, common law is not applicable here. Simply stated, where no crime is enumerated in statutory law, no crime exists. Moreover, a curfew violation was not a crime at common law. 1 Wharton, Criminal Law 18-24 (12th ed. 1932). Thus, the use of common law to prosecute this case would be erroneous. CONCLUSION - Based on the foregoing, 23 V.I.C. section 1522(3) does not create a criminal offense for a curfew violation, and the Governor has no legal authority under federal, local, or common law to do so. Hence, the Governor’s declaration of a criminal misdemeanor for a curfew violation is null and void and therefore “~ \inentoréeabie.:” ee a es Accordingly, the defendant’s Motion to Dismiss willbe “ granted. _ “en feo > . wf O77 st) DATED: Leth SIAL, Lee pat = VERNE A. HODGE Presiding Judge 5/ The rules of the common law, as expressed in the Restatements of the Law approved by the American Law Insti- tute, and to the extent not so expressed, as generally under- stood and applied in the United States, shall be the rules of decisions in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary. 1 V.I.c. section 4.