Barnard v. Thorstenn

PETITIONER:Barnard
RESPONDENT:Thorstenn
LOCATION:Kansas City Missouri School District

DOCKET NO.: 87-1939
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 489 US 546 (1989)
ARGUED: Jan 11, 1989
DECIDED: Mar 06, 1989

ADVOCATES:
Cornish F. Hitchcock – on behalf of the Respondents
Maria Tankenson Hodge – on behalf of the Petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – January 11, 1989 in Barnard v. Thorstenn

William H. Rehnquist:

We’ll near argument next in No. 87-1939, Geoffrey W. Barnard v. Susan Esposito Thorstenn and Virgin Islands Bar Association v. Thorstenn.

Ms. Hodge, you may proceed whenever you’re ready.

Maria Tankenson Hodge:

Mr. Chief Justice, may it please the Court:

The question that is certified before you in this proceeding is whether Frazier v. Heebe prohibits the District Court of the Virgin Islands from requiring residence as a requisite for the practice of law in the Virgin Islands.

The United States Court of Appeals for the Third Circuit concluded that Frazier bound the Court of Appeals to strike the Virgin Islands rule of residency and to exercise its supervisory power to do so.

In reaching that conclusion, the Court of Appeals was of the view that it need not consider the facts surrounding the practice of law in the Virgin Islands, but… that it was bound to treat Frazier as controlling as a matter of law, and disallowing rules of residence for any district court under its jurisdiction, which the District Court of the Virgin Islands is.

But the Virgin Islands, and the court system in the Virgin Islands, are unique; and the factual circumstances surrounding our court system, we feel clearly make the rule that has been enforced in the Virgin Islands both reasonable and necessary.

We would contend that the Court of Appeals erred in failing to consider whether the rule of residency was reasonable and necessary in the context of the practice of law in the Virgin Islands, and instead in applying Frazier as a per se rule.

There are two basic reasons why the Court of Appeals in our view is in error in its application of Frazier.

First, the District Court of the Virgin Islands is not a United States district court.

It is a court created by Congress, but it is a court in which Congress has vested the judicial power of the Virgin Islands.

The court has also been given the jurisdiction of a United States district court, but its status and its role are quite different from that of the United States district courts.

It functions, in effect, as the supreme court of the Virgin Islands.

It is the highest insular court and its rules of practice are, by rule, the rules for admission to the Virgin Islands bar.

We have an integrated bar association, and thus when one is admitted by the District Court of the Virgin Islands to practice, he becomes a member of the Virgin Islands Bar Association.

William H. Rehnquist:

There’s nothing in the Virgin Islands judicial system, like the Supreme Court of Puerto Rico, that sits side by side with the federal district courts?

Maria Tankenson Hodge:

That’s correct, Judge.

Our district court functions as the closest equivalent to a supreme court of the Virgin Islands.

It hears the appeals from the territorial court system, which is the lowest trial court system in the Virgin Islands in terms of… supervisory authority.

The District Court of the Virgin Islands also acts as a court of original jurisdiction and hears civil matters where the amount in controversy is as little as $500, hears criminal matters where the charge is a felony even if the charge does not arise under federal law.

But the District Court of the Virgin Islands also functions as the appellate court for all decisions from the territorial court.

Anthony M. Kennedy:

So we treat it as an instrumentality of the Virgin Islands?

Maria Tankenson Hodge:

I believe that that is the correct treatment, at least to this extent, Justice Kennedy.

We think that the District Court of the Virgin Islands must be considered at least a hybrid court.

And in its rulemaking capacity, when it is fashioning rules for practice, since those rules by definition govern admission to the Virgin Islands bar as a whole, we think the proper standard to apply to that exercise of authority is at least the standard that the court would apply to a supreme court.

That is to say that the rule should not be struck under the exercise of the supervisory power, unless the rule would be unconstitutional, or unless it would be, in the language of the decisions from the territories that we have referred to, inescapably wrong or inescapably improper.

Anthony M. Kennedy:

But by the same token, I take it if it’s an instrumentality of the Virgin Islands, then the federal statute making the… privileges immunities clause applicable to the Virgin Islands does apply here.

Maria Tankenson Hodge:

Yes, the statute does apply and we are subject to the privileges and immunities.

Anthony M. Kennedy:

All right.

Maria Tankenson Hodge:

In addition to the fact that the District Court of the Virgin Islands is this special and unique hybrid court, the Virgin Islands is in a factual setting which is quite unlike any that have reached the federal courts before, either under Frazier or under the several other cases which have been decided, Piper v. New Hampshire and Friedman v. Virginia.

Maria Tankenson Hodge:

The facts that make us so different begin with our geography.

We are, of course, at least 1,000 miles from the closest part of the continental United States, and this creates serious concern for the judicial system.

It means that a practicing lawyer who is not a resident of the Virgin Islands encounters travel difficulties which certainly do not face his counterparts, for example, who live in neighboring states like Vermont and New Hampshire.

Sandra Day O’Connor:

Ms. Hodge, would you say the circumstances are not too different from those on Guam?

Maria Tankenson Hodge:

I… I am a little bit hesitant to speak of the circumstances in Guam since that is not an area with which I’m deeply familiar.

But at least to the extent that–

Sandra Day O’Connor:

It is some distance from the mainland.

Maria Tankenson Hodge:

–Yes, Justice I–

Sandra Day O’Connor:

With similar problems, in some respects, at least as to transportation and distance.

Maria Tankenson Hodge:

–The problems in Guam that I’m reluctant to comment on would be those that exceed the question of being a long way away across water.

Sandra Day O’Connor:

And how has Guam dealt with this problem?

A little differently.

Maria Tankenson Hodge:

We are told… we are told that since the decision of this Court in Frazier, that Guam has rescinded its absolute prohibition on non-resident admissions and has adopted a rule which requires non-resident lawyers to have a local lawyer with whom they are affiliated, who appears with them in all proceedings and signs all pleadings with them.

Sandra Day O’Connor:

How would that work in the Virgin Islands?

Maria Tankenson Hodge:

We don’t think that it would work, Judge, for several reasons.

First of all–

Sandra Day O’Connor:

I think we’re generally called Justice.

Maria Tankenson Hodge:

–I’m sorry.

I apologize, Justice O’Connor.

Sandra Day O’Connor:

What… how do you think that would work here?

Maria Tankenson Hodge:

The reason that we don’t think it would work is that the Virgin Islands has a set of circumstances that differ from those of other jurisdictions in excess of our geographic isolation.

We have, as we have mentioned in the briefs, the highest per capita crime rate in the United States, the lowest per capita income, and the highest number of cases per judgeship in our courts, in our federal courts, of any place in the United States for which statistics are available.

A consequence of that is that we have been required to develop a system under which all members of the bar are required to share the duty of serving in effect as public defenders.

That is not a system that seems workable with non-residents.

They could not respond to the needs of a defendant who’s been incarcerated promptly enough.

We don’t even feel like it would be [inaudible].

Sandra Day O’Connor:

Could the lawyer who is assigned to do that for them, under a system like Guam, respond?

Maria Tankenson Hodge:

There would be at least one immediate problem with a system of that sort, and that is that it would clearly establish a kind of two-class system for the practice of law.

The Virgin Islands has, I think, developed a quite delicate social fabric in which it is extremely important that Virgin Islanders know and believe that people who come to the Islands from the United States do not come equipped with a set of special rights which allows them to have preference in the way they conduct themselves.

And if we had a system where non-residents were admitted to the bar, but were not required to function as the local lawyers do in taking their full share of criminal appointments, if they could in effect hire a mercenary substitute for themselves, I think there would be damage to the system that the District Court has devised for requiring all lawyers to fulfill their share of responsibility equally.

Maria Tankenson Hodge:

Also, we don’t know that the system in Guam is working.

It’s quite a recent innovation in response to what that court apparently believed was its obligations under this Court’s decision in Frazier, and we have absolutely no evidence on this record that they are not encountering difficulties with it.

Antonin Scalia:

Excuse me, have our cases drawn any distinction as, as far as what the states must do between what they must do for residents of neighboring states as opposed to states on the other side of the country?

I mean, I, I think it’s further from… California to Maine that it is from Florida to the Virgin Islands.

Maria Tankenson Hodge:

The only distinction that I am aware that’s been recognized in the decisions between admission of nearby residents and very distant residents is, number one, that the cases have said that they think it is fair to assume that the vast majority of applicants for admission to a bar in a state in which they do not reside will be nearby residents.

Obviously that presumption doesn’t apply to the Virgin Islands.

Antonin Scalia:

But we didn’t say that you wouldn’t… you wouldn’t have to apply the same rule to, to distant residents, if they… if they want to benefit from it?

Maria Tankenson Hodge:

Actually, if I may say so, the Court did say that a different rule could apply to distant residents.

What it said was that in the case of distant residents the lawyer could be required to have local counsel retained.

That is recognized both in Frazier and in Piper.

The, the concern that we have is that if the only problem with admission to the Virgin Islands bar were distance, if we only needed somebody to occasionally answer a motion call on short notice, aside from the District Court’s concern that in most cases when that local lawyer appears in pro hac vice cases he answers, not ready, Judge, I didn’t know this case.

But putting that concern aside, we have the complicated situation that it is, in the case of the Virgin Islands, not merely distance, but distance complicated with a transportation system that’s very limited.

We as a destination are a tiny island.

We don’t have the kind of commercial transportation facilities that exist for the cross-country commuters between, say, California and New York.

We have a limited number of airlines serving us, we have very high tourist travel.

And the District Court said in its decision, it clearly did not feel that ready access to transportation was available to the Virgin Islands.

The other thing that the Court said, Justice Scalia, in both Frazier and Piper, was that perhaps there need not be quite so much concern about distance alone, since it was becoming increasingly common to use telephone conferences as a substitute for in-person appearances in some of the courts.

In the Virgin Islands, as the District Court has pointed out, however, that is not a ready substitute, since our telephone service is not reliable.

The District Court specifically found that telephone service to the Virgin Islands is subject to problems with transmission, echoes, loss of connections, and so on.

And, therefore, the Court could not rely on telephone conferences in the Virgin Islands as a ready substitute.

Antonin Scalia:

Who provides the telephone… who provides the telephone service?

Maria Tankenson Hodge:

The name of our telephone company is the Virgin Islands Telephone Company, Justice.

Antonin Scalia:

I see.

Maria Tankenson Hodge:

It is a single company, it has an exclusive franchise, and there have been problems reported–

Antonin Scalia:

And, it doesn’t work.

Maria Tankenson Hodge:

–I, I [inaudible].

John Paul Stevens:

You know, you can talk to Paris, you can talk to Tokyo, but you can’t talk to the Virgin Islands–

Maria Tankenson Hodge:

It, it is certainly not a system that is a total failure, Justice Stephens.

It does function.

John Paul Stevens:

–Maybe you… maybe you ought to get a new system, is–

Maria Tankenson Hodge:

We are able to call the United States.

As a matter of fact, the District Court said that service has improved over the last ten years.

But it has not improved to the point at which the court is comfortable relying on telephone conferences as a substitute for an attorney’s presence, because the court, as we’ve pointed out, has a really unusual judicial burden.

John Paul Stevens:

–It seems to me that burden would… might be alleviated somewhat if you had more lawyers?

Maria Tankenson Hodge:

Well that… it might be alleviated if we had more lawyers who were actually there, Judge… Justice, excuse me, Justice Stephens.

But it cannot be–

John Paul Stevens:

Well, your, your mistake in calling me Judge is also made in Article III of the Constitution, by the way.

[Laughter]

Maria Tankenson Hodge:

–I do, do apologize.

But it is not alleviated, if you have attorneys of record on cases for whom the court must wait, who are not there, who call and say I can’t arrive, or who don’t call and say I can’t arrive–

John Paul Stevens:

What do you do with pro hac vice admissions?

Do they let them come in, or do they–

Maria Tankenson Hodge:

–Yes.

We have pro hac vice admissions under our rules.

John Paul Stevens:

–Is it fairly common?

Maria Tankenson Hodge:

It is relatively common.

They are required to have a local attorney with them on the pleadings and in their court appearances.

But–

John Paul Stevens:

I don’t understand why you couldn’t do the same thing with these people.

That’s right.

Maria Tankenson Hodge:

–Well, the, the court has said two things about that Judge.

Number one… Justice… it has said… I’m going to stop addressing people.

Number one, the court has said–

William H. Rehnquist:

We’ll, we’ll resume there at 1:00 o’clock, Ms. Hodge.

Maria Tankenson Hodge:

–Thank you.

William H. Rehnquist:

We’ll resume, Ms. Hodge.

Maria Tankenson Hodge:

Thank you.

I believe when the recess was announced I was asked about the significance of the Virgin Islands experience with pro hac vice admissions.

And it seemed to be suggested in the question that if the territory has been able to accommodate pro hac vice admissions that it would follow that we probably could accommodate full-pledged admission of non-residents, so long as they were required to associate themselves with local counsel.

The primary difference, however, between those two categories of admission in our territory is that all active members of the bar are required to fulfill their responsibility under Rule 16 to serve as, in effect, federal public defenders, also territorial public defenders, and also to accept appointments at the territorial court level to represent indigents in family matters.

Anthony M. Kennedy:

Well, there’s, there’s nothing in the rule that says appointed counsel can’t send a colleague to any hearing on any matter in an indigent case, is there?

Maria Tankenson Hodge:

There is not a statement in the written rule, but there is a well-established judicial authority to the effect that each lawyer in the Virgin Islands must accept his appointments on an individual basis, and his failure to do so can result in his loss of entitlement to be an active practitioner in the Virgin Islands.

The District Court specifically adverted to that in its decision below.

Anthony M. Kennedy:

You can’t appoint an associate counsel?

Maria Tankenson Hodge:

That is correct.

And indeed–

Anthony M. Kennedy:

So suppose you don’t think that you’re qualified to hear a homicide case, you’ve got to try it all by yourself?

Maria Tankenson Hodge:

–The only way that an attorney can be excused from the obligation to accept an appointment is by petitioning the court and making a showing that he is not qualified in his view to handle a particular matter.

And the court then has the discretion to make a substitute appointment.

He will then take another appointment at a subsequent time.

But it is not a matter within the discretion of the attorney to find a substitute for himself.

It is an individual and personal obligation under our system of appointments.

And as a policy–

Anthony M. Kennedy:

Is that justified as being necessary for the smooth functioning of the public defender system?

Maria Tankenson Hodge:

–It is justified by the courts of the Virgin Islands as being necessary to have a smooth, functioning equitable system.

The system is designed to ensure that all members of the bar, not only the newcomers recently admitted, but the well-established, expensive, sought-after lawyers, take their share of the appointments, and that an indigent–

Anthony M. Kennedy:

So you’re a tax attorney and you have to try the homicide case.

Maria Tankenson Hodge:

–Well, it’s quite unlikely that a tax attorney would not, if he petitioned for substitution, be permitted to have a different appointment.

But it is entirely unlikely, indeed it’s unheard of in the Virgin Islands–

Anthony M. Kennedy:

They just give him a robbery case?

Maria Tankenson Hodge:

–Well, there are many kinds of cases for which we’re appointed, there are immigration cases.

The District Court of the Virgin Islands, as I mentioned earlier, is both a federal and a local court in its jurisdiction.

So it does not hear only the most terrible felonies, it hears all matters of criminal cases, and needs appointments in all those matters.

It has tax cases in which appointments must be made.

The purpose of the rule, however, is twofold.

It ensures that the system has attorneys for indigent defendants, that they are given adequate counsel, and it ensures that each member of the bar contributes his fair share of his time to that endeavor.

It is thought to be a system that is fair to all lawyers, but in effect taxes them all equally.

We all pay our taxes on our income in the Virgin Islands, lawyers pay a tax on our time as well.

It is an obligation of all active members of the bar, and we would understand this Court’s decisions to require that if a non-resident wanted to be admitted he would be expected to carry an equal share with any other admitted lawyers of those duties.

The problem is that it seems clear to the District Court at least that the non-resident lawyer could not do so, and that he would inevitably be put in the position of wanting to hire a substitute for himself, and that that would inevitably create a system in which there were a hired bar that replaced the non-residents, in effect a two-class system, which the District Court thought not acceptable.

John Paul Stevens:

How many… how many cases are we talking about for the average member of the… how many appointed cases–

Maria Tankenson Hodge:

The affidavit–

John Paul Stevens:

–does the tax… the one who gets the least, the tax lawyer who really doesn’t want to get involved in criminal law at all, how many appointments will he typically take a year?

Maria Tankenson Hodge:

–Can I just clarify and say, all lawyers take an equal number of appointments.

Whether they want them or not, they all take an equal number.

It’s not whether they like them or not, they all get them.

It rotates.

John Paul Stevens:

Well, I just want to be sure that I’m asking about, you know, the most–

Maria Tankenson Hodge:

The affidavits below suggest that as of the date of the evidentiary record here, approximately four appointments a year was considered average.

That does not include appointments in the family court to represent parents and children in cases of dissolution and–

John Paul Stevens:

–And your, your point is that if a non-resident lawyer could only handle three, that’d be unfair to those who handle four, and therefore you should have the rule.

Maria Tankenson Hodge:

–Actually it would be unfair if he took any lesser number of appointments.

But it’s our view that if a non-resident were admitted to active membership in the Virgin Islands bar what would actually happen is he would not be able to effectively take any, because he might–

John Paul Stevens:

And he might have to hire somebody else who then would take four by appointment and four by being hired, that’s a total of eight, say, and that would be unfair to the other members of the bar because… for what reason again?

Maria Tankenson Hodge:

–The local lawyers, the Virgin Islands lawyer would then be a disadvantaged group.

They would… number one, they would probably take more appointments than they would have otherwise–

John Paul Stevens:

But they get paid for the four that the non-resident is willing to hire somebody to handle.

Maria Tankenson Hodge:

–But in, in addition to having to take more, they would in effect be–

John Paul Stevens:

They’d take their four.

Maria Tankenson Hodge:

–It seems to us, a second-class bar.

The non-residents could come in only to handle the highly-paid cases.

The resident bar would be the bar that would represent all the criminal defendants.

William H. Rehnquist:

You don’t want to go through our Civil War experience again.

Maria Tankenson Hodge:

We do not want to relive that experience.

We very much want to keep a system in which there is an equitable distribution of the responsibility.

The very successful and affluent lawyer in the Virgin Islands comes to court and stands next to the beginner and takes his share of the appointments.

And we think that–

John Paul Stevens:

But what if they let the non-residents in on condition, say, it’s kind of inconvenient but you must take your four cases?

Maria Tankenson Hodge:

–The District Court’s decision below indicated that it was the opinion of the judge that if the rule were evenly applied to all that the non-residents would inevitably fail in their effort to comply, no matter how well intentioned they were.

John Paul Stevens:

Why don’t you say, then you get disbarred if you fail?

Maria Tankenson Hodge:

Well, it would be possible to try the experience, but the difficulty would be–

John Paul Stevens:

Do you disbar them now if they don’t take their four?

Maria Tankenson Hodge:

–In the… yes, they excluded from practice if they don’t take their appointments.

John Paul Stevens:

And have there been such disbarments?

Maria Tankenson Hodge:

Yes.

The problem would be that in the experimental period–

John Paul Stevens:

How many lawyers have been disbarred for that reason?

Does the record tell us?

Maria Tankenson Hodge:

–I don’t know.

John Paul Stevens:

Is it… is it–

Maria Tankenson Hodge:

It’s not in the record.

John Paul Stevens:

–It’s not what?

Maria Tankenson Hodge:

It is not in the record, and I don’t know.

John Paul Stevens:

I doubt if it happens very often, does it?

Maria Tankenson Hodge:

It doesn’t happen very often because lawyers wouldn’t have the nerve to refuse appointments.

To complete the thought, if we had an experimental period, and we said, we’ll let the non-residents in, we’ll say you must take your equal share of appointments like everyone else, and if you fail to appear on time we will disbar you, there will certainly be a risky period when criminal defendants who are relying on those persons who have been appointed who are not there may have inadequate representation.

Their lawyer may not be there on time to make a bail motion for them, he may miss a witness who couldn’t be found because he didn’t interview the person in custody quickly enough.

So it’s a risky experiment.

And it’s also risky for the courts, which as we’ve pointed out in our briefs are working with an extraordinary case load, disproportionate, we feel, to all other courts in a comparable situation.

And the court itself in that setting has said, as the jurist best able to examine the setting of this court, the setting in the Virgin Islands, the demand for judicial efficiency, I, the chief judge of the District Court say, it would be intolerable for me to try to keep this system working if I had to deal with non-residents who fail to appear, who didn’t get their notice of hearings on time because the mail didn’t reach them, or their pleading didn’t get back to me.

And it, it seems to us quite difficult for this court, even in a conscientious effort to apply the principles of the cases that have been cited, to try to determine whether that rule is reasonable in the Virgin Islands.

Byron R. White:

Well, Ms. Hodge, the… as I take it, the Court of Appeals… well, the Court of Appeals said, we disagree with appellant’s assertion that the facts in this case dictate a different result than the result reached in Heebe.

Now, it didn’t spell that out, but it must have disagreed with, with you and disagreed with the dissent who made the very points you’re making.

Maria Tankenson Hodge:

I, I–

Byron R. White:

And that court perhaps knows more about… I’m sure it doesn’t know more about the Virgin Islands than you do, but it, it certainly knows more about the Virgin Islands than we do.

Maria Tankenson Hodge:

–The Court of Appeals in its decision said it need not reach the facts, and when it said it took a different view of the facts I think it meant it took a different view of the significance of the factual dispute, because the opinion of the majority says, we need not even decide which of the two contradictory affidavits are correct.

We need not concern ourselves with whether travel to the islands is difficult, with whether telephone communications are adequate.

We simply see ourselves as bound by the decision in Frazier, because the goals that the Virgin Islands has said it is trying to achieve are similar to the goals that were mentioned by the state in Frazier and Piper.

So the Court of Appeals chose not to look at the facts.

It specifically says in its decision, we need not consider these factual disputes, we don’t think they’re materials.

Maria Tankenson Hodge:

We’re simply bound by the outcome in Frazier.

Byron R. White:

Now, where do you find that in the opinion–

Maria Tankenson Hodge:

At the very outset of the opinion.

Byron R. White:

–All right.

Maria Tankenson Hodge:

At the very beginning of the majority opinion.

Byron R. White:

And by the way, while I’ve got you interrupted, you, you no longer urge, I take it, that, that, that the very exercise of supervisory power was wrong?

Maria Tankenson Hodge:

It is our contention that, while the Third Circuit has supervisory power over the Virgin Islands, that it was incorrect in exercising it to strike this rule.

Byron R. White:

Yes.

But didn’t you urge below that they shouldn’t do it… that, that they were… had no power to do it on these supervisory grounds?

Maria Tankenson Hodge:

No, we conceded to the Third Circuit that they had supervisory power over the Virgin Islands in our brief, but contended that it should be exercised with a great degree of deference toward the Virgin Islands as a territorial court, and also that our factual setting was so different from that which was before the Court in Frazier that it was not correct to apply the supervisory power to strike our rule, relying upon that precedent.

William H. Rehnquist:

Following up on one of Justice White’s earlier questions, I take it the Court of Appeals did not set aside any finding of fact by the District Court as being clearly erroneous?

Maria Tankenson Hodge:

That’s correct.

It did not.

Byron R. White:

It just said it was… that the disagreement was not an issue of material fact, so the disagreement was just those facts were not material, they thought.

Is that it?

Maria Tankenson Hodge:

It could be read to mean that the facts were not material, but since they were all the facts that had to do with access and availability, presumably the significance of that was to say, even if a lawyer will have problems of availability, that is not material to the question of whether the supervisory power should be used.

The, the points that were in dispute in the two affidavits were how closely travel access to the Virgin Islands approximated travel in other locations, how good telephone service had become–

Harry A. Blackmun:

How far is Puerto Rico?

Maria Tankenson Hodge:

–I’m sorry, sir.

Harry A. Blackmun:

How far away is Puerto Rico?

Maria Tankenson Hodge:

Puerto Rico is approximately 40 miles from the closest part of the Virgin Islands.

Harry A. Blackmun:

Do you have any Puerto Rican attorneys admitted to your bar?

Maria Tankenson Hodge:

No, we don’t.

Harry A. Blackmun:

None at all?

Maria Tankenson Hodge:

None at all.

And it… and it would not, in our view, be useful to too closely analogize Puerto Rico and the Virgin Islands to the states which have contiguous borders, because while there is a relatively short number of miles between us, Puerto Rico is within and we are without the United States customs zone.

So when one travels from the Virgin Islands to Puerto Rico, he crosses customs, he crosses immigration, he must establish his citizenship, he’s subject to border searches, and of course he’s entering a commonwealth in which the language of the majority is Spanish, the law schools teach the law in Spanish, the laws are written in Spanish and the courts are conducted in Spanish except for the federal court.

So our proximity is–

Harry A. Blackmun:

Is there any parallel to the state of Alaska?

Maria Tankenson Hodge:

–There is some parallel in the sense that Alaska is quite distant from the rest of the contiguous United States.

Maria Tankenson Hodge:

But there is also the distinction that Alaska has such a large land mass of its own that when it compares a residency requirement with… with our setting they have many lawyers, as the court there has pointed out, within the state who live further from a particular courthouse than do lawyers residing, for example, in the state of Washington.

We have no companion situation to that.

Sandra Day O’Connor:

Ms. Hodge, do you still defend the durational aspect of the residence requirement, the one-year durational requirement?

Maria Tankenson Hodge:

The position we have taken is that the durational residency requirement can only stand if the simple residency requirement is first found to be valid.

And if the simple residency requirement is valid, then the durational residency requirement is clearly subject to a different kind of attack.

But we believe that these Petitioners do not have standing to make that challenge, if the simple residency requirement is sustained.

We have conceded to the Court of Appeals, and do again before this Court, that the durational residency requirement is certainly more difficult to defend and is not addressed at the same concerns that support the simple residency requirement.

I’d reserve any minutes that I may have, if there are no further questions.

William H. Rehnquist:

Very well, Ms. Hodge.

Mr. Hitchcock?

Cornish F. Hitchcock:

Mr. Chief Justice, and may it please the Court:

This case concerns the validity… of certain residency requirements for members in the bar of the District Court of the Virgin Islands.

And before discussing why we believe this restrictions are invalid, I think it’s useful to point out what non-residents would have to do as a practical matter to be licensed there.

And I think it’ll show that here, as in Piper, Frazier, and Friedman, lawyers are not likely to seek membership unless they anticipate a regular and substantial practice in the Virgin Islands, and that these factors make it likely they will satisfy the professional obligations to the same extent as non-residents.

An applicant must take a two-day bar exam in the Virgin Islands in July, and even experienced lawyers must take it.

There’s no way of waiving in, as was the case in Friedman.

There’s no review course, so a lawyer must travel to the Virgin Islands in order to study recent decisions, statutes, and become abreast of developments in the law.

Harry A. Blackmun:

I guess there’s no question but what your clients are competent.

Cornish F. Hitchcock:

Yes.

Our clients have taken and passed the bar examination, the character examination.

They have done everything that is required of members of the bar except make the commitment to live there.

They are willing to… they’ve done these things.

They are willing to pay the $600 a year in addition to bar membership obligations elsewhere.

They have retained a partnership arrangement with an attorney in the Virgin Islands, they’ve staffed the office, they have FAX machines, telephone machines.

And they also have clients who are willing to retain their services because of their particular expertise, which they do not believe they can obtain simply with island attorneys.

Not that island attorneys are not competent, but it’s specialty, a synergy, that they think can be provided.

Sandra Day O’Connor:

Are they willing to meet the pro bono requirements personally rather than through hired associates?

Cornish F. Hitchcock:

They will meet any obligations that are imposed on island residents in an even-handed and non-discriminatory manner.

And what I say by that, if there are exceptions that are made for island residents, they would like to have the same exceptions that are made there.

And, and I think that is sufficient in this particular case.

Anthony M. Kennedy:

Well, is a requirement of, of accepting four appointments a year non-discriminatory?

Cornish F. Hitchcock:

Let me answer that in this manner.

Again, I think we have to parse it in terms of what Ms. Hodge said.

The four appointments are not all in the District Court.

As we pointed out in our brief, at note seven, there is at most one appointment a year in the District Courts, and only the District Court has this no-substitutions preference.

The other three of so on an average occur in the territorial court, a trial court of limited jurisdiction, where there is not this type of practice.

There may be generally four cases on an average, but lawyers in the Virgin Islands, in the territorial court, can send down an associate, can ask someone to substitute for them, and the system works.

It is only in the District Court that you have this preference.

And to the extent, as Ms. Hodge indicated, there is flexibility in that system.

And that’s one of the problems here.

The briefs suggest that the no-substitutions practice is administered in a very rigid manner, that if one is recovering from open-heart surgery, or in depositions in the mainland, or travelling in Europe, that there are no exceptions made.

But I think Ms. Hodge’s answer to your question earlier today, Justice Kennedy, suggested that it is more flexible and, to the extent there is exceptions made, the respondents may ask in appropriate circumstances.

But they’re willing to do whatever is obliged, and as a practical matter, the no-substitutions practice applies only to the extent that they are called to act in District Court cases.

There are several factors that were alluded to in Ms. Hodge’s argument that I would like to point out which suggest that this rule is not as carefully tailored to survive scrutiny under Piper or under Frazier.

First of all, as Justice Blackmun’s question pointed out, the rule applies not simply to mainlanders but to lawyers in Puerto Rico who are only 40 miles away, and there are six airlines flying between Puerto Rico and the Virgin Islands on a daily basis.

It’s one of the best-served markets in terms of the frequency of flights.

Byron R. White:

xxx by declaring this rule unconstitutional on its face?

Cornish F. Hitchcock:

I think that it diminishes the argument.

If there were less service I would still make the same–

Byron R. White:

I know, but that would just arguing over breadth, which I’m not sure is applicable in cases like this.

Cornish F. Hitchcock:

–Well, the court has indicated in looking whether–

Byron R. White:

I mean, maybe as applied to some Puerto Rican it would be invalid, but I don’t know that you’ve got much to do with that.

Cornish F. Hitchcock:

–Well, I think that the court has looked in privileges and immunities clause cases in terms of whether the restriction is over-inclusive or under-inclusive.

And I think that as part of that analysis, it’s, it’s useful.

But I’d point out also, not only… apart from Puerto Rico there are a number of other jurisdictions which have abolished this.

Every state which is further away from the mainland than the Virgin Islands have done away with similar restrictions, as have every territory which are subject to the privileges and immunities clause, including Guam and the Northern Mariana Islands, which are on the other side of the international date line.

They are both subject to the same kind of… they both have the same kind of court system, a territorial court, a district court, and an appeal to a circuit court on the mainland.

They are all subject–

William H. Rehnquist:

Did Guam do it after this Court’s Frazier decision?

Cornish F. Hitchcock:

–The Superior Court of Guam abolished its rule after Piper.

Cornish F. Hitchcock:

The… I believe that the… the Superior Court of Guam is the territorial court, and unlike the Virgin Islands, it licenses lawyers separately.

William H. Rehnquist:

So that would be the relevant court for our… for purposes of our inquiry?

Cornish F. Hitchcock:

Well, as well as the District Court of Guam, which is similar, it’s an Article I court.

But the District Court of Guam, whose rule we quote in our brief, does not have this restriction.

The District Court of Guam simply says that anyone can be a member if they’re a member of the Guam territorial bar.

But if you want to practice there, you need to have an active lawyer on the island who will be available, not simply as a mail drop but to handle the cases in a full manner.

And your question, Mr. Chief Justice, points to one of the things that I want to emphasize here.

The District Court of the Virgin Islands is a hybrid court.

It is not simply a federal district court, and these rules do not simply affect people who want to try federal cases.

Because it acts as the equivalent of a state supreme court, or the highest territorial court, it excludes lawyers from doing everything else that lawyers do without litigating.

William H. Rehnquist:

I’d like to get back, if I could, to my question about Guam.

I’m not sure you fully understood it.

Cornish F. Hitchcock:

Okay.

William H. Rehnquist:

In the Superior Court they do have a restriction, or they did have similar to that imposed by the Virgin Islands?

Cornish F. Hitchcock:

The Superior Court of Guam did.

The Superior Court of Guam abolished that… restriction after Piper, because the Superior Court of Guam, like the District Court here, is subject to the privileges and immunities clause, under the Organic Act.

William H. Rehnquist:

So it’s a fair inference the Superior Court did it not because it wanted to but because it thought it was required to by the decisions of this Court.

Cornish F. Hitchcock:

It believed that it was bound by the decision of this Court, as did every other state court which had such a restriction, and every other territorial court which had such a restriction, even those that are considerably further away from the mainland than are the Virgin Islands.

The Virgin… all that the Third Circuit did here was to bring the Virgin Islands in line with every other jurisdiction that is subject to the privileges and immunities clause.

Antonin Scalia:

Of course, it may have been more cost-free for the courts of Guam to do it.

I don’t know that a lot of lawyers are clamoring to practice in Guam.

I would think that the Virgin-Islands is a much more amenable place to practice.

Cornish F. Hitchcock:

Well, that may depend on one’s perspective.

I mean, it might be… there are a number of reasons why one may seek membership in Guam, and I understand, Justice Scalia, that there are mainland lawyers who have been licensed in the Guam bar.

Pacific rim is a fast-growing territory.

There may be a number of practical reasons for lawyers to be licensed there to handle business.

They may have–

Antonin Scalia:

My only point is I’m not sure the disincentives are equivalent in the Guam courts and the Virgin Islands courts.

The language difficulties may, may not be equivalent.

Guam is further away.

Cornish F. Hitchcock:

–Guam is further away, but again neither the Superior Court nor the District Court see the need for these restrictions.

And in terms of language difficulties–

William H. Rehnquist:

Is that fair to say the Superior Court doesn’t see the need for these restrictions, when they had then but changed them only in response to our Piper decision?

Cornish F. Hitchcock:

–Well–

William H. Rehnquist:

Is that an accurate statement?

Cornish F. Hitchcock:

–I would clarify the statement, Mr. Chief Justice–

Yes, I think you should.

Cornish F. Hitchcock:

–That they believe themselves bound.

I’m not aware of any difficulties that they’ve had, which would suggest that reversion to the appropriate… the former system would be appropriate.

But in response to the questions also of Justice Marshall and Justice Scalia, English is spoken in the Virgin Islands.

It is the language.

It is unlike Puerto Rico, where English is required to be used in the District Court but Spanish is required to be used in the territorial court, the, the Supreme Court of Puerto Rico.

The difference is here… I think if anything the difference are cutting more in our favor here than in Pacific territories.

But–

Antonin Scalia:

Excuse me.

English is not required to be used in the territorial courts, but Spanish may be used if litigants want to use it.

Isn’t that right?

Cornish F. Hitchcock:

–In… in Puerto Rico?

Antonin Scalia:

No, in the Virgin Islands.

Cornish F. Hitchcock:

Uh, no… I know that English is the only language which is used… Spanish is the official language in the Puerto Rico court system.

But English by statute, in 28 USC, is the official language in federal court in Puerto Rico.

I am aware that English is the only language used in the territorial and the district court in the Virgin Islands.

I don’t… I’m not sure whether there is a statutory requirement.

I mean, the simple point is that the language… the English language is in use there, even though it is not… you’ve got to be bilingual in Puerto Rico.

Antonin Scalia:

I must have misunderstood Ms. Hodge.

I though she said something different.

Cornish F. Hitchcock:

No.

One must be bilingual in Puerto Rico, but English is the only language that… I mean, there may be translators if somebody speaks only Spanish, but English is the language of record in the territorial and the District Court of the Virgin Islands.

I’d like to discuss the Piper case, which I believe provides the framework for analyzing it, this particular case, and although the Third Circuit decided this case in an exercise of its supervisory authority, we believe that the case can properly be addressed either under Piper or under the supervisory authority.

Byron R. White:

Well, do you… are you defending the, not only the result but the approach of the Court of Appeals?

Cornish F. Hitchcock:

We are, Justice White.

We believe that the Third Circuit–

Byron R. White:

You think the facts are just irrelevant?

Cornish F. Hitchcock:

–It’s not that the facts are irrelevant, it’s that the facts as a matter of law have been addressed by those two decisions.

And I want to point out–

Byron R. White:

Well, I know, but do you think… you, you apparently agree then that the differences in views about transportation and communications, need, need not be decided in resolving this case?

Cornish F. Hitchcock:

–I don’t think they have to be decided because I think–

Byron R. White:

Why not?

Cornish F. Hitchcock:

–As a matter of law under Piper they were addressed.

And let me say specifically the point of that decision that I’m relying upon.

The argument was made in Piper that this rule will allow not only lawyers from Vermont or Maine but lawyers from across the country.

And the Court, this Court, considered that point, and considered, as we read the decision, the possibility of limiting it just to an adjacent jurisdiction as Your Honors–

Byron R. White:

Well, to put it another way, do you think that the availability of communications and transportation is a relevant consideration in things like this or not?

Cornish F. Hitchcock:

–I think that under Piper that question is foreclosed, where the Court said–

Byron R. White:

So it wouldn’t make any difference in this case as far as you’re concerned if the only way to get to the Virgin Islands from the United States was in a rowboat?

Cornish F. Hitchcock:

–As a matter of law after Piper that would be our answer.

And, and I would follow that up, if the trial–

Byron R. White:

Pretty peculiar–

Cornish F. Hitchcock:

–Excuse me?

Byron R. White:

–Is that… is that a fair reading of Piper?

Cornish F. Hitchcock:

I think… that reading of Piper that is pertinent is where the Court said that if a lawyer lives at a great distance from the licensing jurisdiction, that is not a basis for excluding the lawyer from being licensed.

It may be a basis for requiring local counsel.

Byron R. White:

Well, that may be so.

So by… that doesn’t say that, if he lives a great distance and, and there’s no way of his getting here inside of a week, that’s irrelevant.

It didn’t say that.

Cornish F. Hitchcock:

It didn’t say that explicitly, but I think the reasoning here… and, and if I may, I would like to point to the record, what we have in the record here is really nothing as substantive as, or solid as, Ms. Hodge suggested.

The evidence on–

Byron R. White:

So you say, you say this evidence is relevant, it’s just that it… it isn’t meaningful enough?

Cornish F. Hitchcock:

–It’s a two-part answer.

First of all, I think it’s foreclosed under the analysis about distance in Piper.

Cornish F. Hitchcock:

But secondly, even if it is relevant in this instance, the respondent… the Petitioners have not provided enough evidence to sustain their burden under the privileges and immunities clause.

Byron R. White:

Well, the Court of Appeals didn’t decide that.

Cornish F. Hitchcock:

The Court of Appeals–

Byron R. White:

They just put the evidence aside.

Cornish F. Hitchcock:

–I, I don’t think that’s really an accurate characterization.

I think the Court of Appeals considered the arguments, and they didn’t find that they were sufficient in this particular case, and the Court of Appeals, as your earlier question to Ms. Hodge indicated, travels to the Virgin Islands twice a year.

The judges sit down there every December and April, they’re familiar–

William H. Rehnquist:

Well, but that doesn’t entitle a court of appeals to redo facts found by the District Court, or to decide the thing without any factual findings.

Cornish F. Hitchcock:

–I would answer the question this way, Mr. Chief Justice.

There were no findings here.

This case was submitted on cross motions for summary judgment.

The, the affidavits which the Petitioners–

William H. Rehnquist:

Well, let me follow the procedural aspect one more time.

Cross motions for summary judgment, the District Court granted the–

Cornish F. Hitchcock:

–Petitioner.

William H. Rehnquist:

–The Petitioners.

And the Court of Appeals reversed, in effect said, your client should have gotten summary judgment.

Cornish F. Hitchcock:

Correct.

William H. Rehnquist:

So that means that the affidavits favorable to the Petitioners have to be considered as true.

Cornish F. Hitchcock:

They have to considered as true–

William H. Rehnquist:

Okay.

Cornish F. Hitchcock:

–But in terms–

William H. Rehnquist:

Then the Court of Appeals had no business finding any facts at all, if it’s… on cross motions for summary judgment, each one is a question of law.

Cornish F. Hitchcock:

–That’s correct.

But let’s look at the facts that were put forward, because they really were not facts, as such.

They were really impressions.

In the affidavit filed by Mr. Barnard, there are two sentences, two sentences in the entire affidavit about air service.

And what they said was the air service has improved over the last several years… I’m sorry that was the phone service.

But that reservations may be unavailable for commercial flights for protracted periods of time.

There were several sentences on phone service where they say substantially improved, but it’s significantly less reliable than that normally expected in continental United States.

Cornish F. Hitchcock:

The bar association president’s affidavit said not one word about airline service, and simply described the telecommunications systems as erratic, impaired by static, echoes, transmission gaps.

Thurgood Marshall:

But when you talk about the prone service, did anybody talk about the phone service between St. Croix and St. John and St. Thomas?

Cornish F. Hitchcock:

That was not–

Thurgood Marshall:

It is not among the best.

Cornish F. Hitchcock:

–That was not specifically addressed.

But I would point in response to, I guess, initially Justice White’s question and the Chief Justice’s question, the affidavits… I think the Court of Appeals could find that the affidavits here are not enough to justify an award of summary judgment much less to deny the summary judgment motion that the Respondents filed and forced the issue to trial.

And while we’re on the–

William H. Rehnquist:

But to say the… you have to say the affidavits raise, raise no triable issue of fact and that your clients were entitled to judgment as a matter of law, to do what the Third Circuit did.

Cornish F. Hitchcock:

–Correct, But while we’re on the area of the adequacy of service, I think it’s important here not simply to focus on the District Court’s opinion in this case, but to go back a few years to the case we cited, Tradewinds v. Citibank, where the same exact issue was at issue, was involved.

The issue… the legal issue there was whether a national bank could be sued only in jurisdiction where it was chartered, or whether it could be sued anywhere where it had a branch office.

And the District Court, the same district judge who presided over this case, decided that it was perfectly permissible to let the company be sued in the Virgin Islands, and it cited tremendous advances in terms of airline service, in terms of telecommunications, and in terms of data processing.

It simply cannot be said on this record, and if one looks at the judicial pronouncements previously, that the service is good enough to permit mainland clients to come down to the Virgin Islands and be sued, that the phone service is good enough to let them come down, but there is simply not enough room on the plane for mainland lawyers to come down, or the phones don’t work it it’s a mainland lawyer who wants to call down to the islands.

And I’d put something else in terms of the adequacy of service.

This rule does not prohibit Virgin Islands lawyers from engaging in practice on the mainland.

They can litigate cases of represent clients in New York or Virginia or Louisiana or New Hampshire, and the rule would seem to assume that objective criteria, such as the availability of airline seats, the adequacy of telecommunications, work sufficiently well that they will get back and they can communicate if they need to.

Antonin Scalia:

What that… those problems are problems for the mainland jurisdictions to considered.

I, I suppose if we had before us a case where Maine tried to exclude from practice lawyers who were admitted only in the Virgin Islands, then, then we might have to confront that problem.

I guess the state of Maine could well come in and say, in light of the terrible plane service and telecommunications with the Virgin Islands, though we’re willing to let people here from all other states and territories, not from the Virgin Islands.

Cornish F. Hitchcock:

It works both says, Justice Scalia, for this reason.

I mean, to the extent that the justification is based on the idea that you need to be able to handle cases directly in the Virgin Islands, and you need to communicate directly, the rule assumes that anyone who is practicing in Maine will be able to satisfy his or her professional obligations in the Virgin Islands as well, that one can travel to the mainland and still come back if one needs to.

And our point is that there’s simply no reason for assuming that only Virgin Islands lawyers will be conscientious and come back to do their duties, but not mainland lawyers who want to divide their practice… well, it is a concern not simply of Maine but also of the Virgin Islands as well, again to the extent that it’s premised on the idea about adequacy of, of seats and the like.

Byron R. White:

xxx addressed to the air and communications services?

Cornish F. Hitchcock:

There was, Justice White.

Mr. De Vos, who is one of the respondents here, submitted a rather detailed affidavit based upon his travel to the Virgin Islands on a regular basis for 20 months.

He put in objective evidence showing that there are four airlines providing jet service to the Virgin Islands from the mainland.

Byron R. White:

So I take it you think the District Court was certainly but of bounds in, in making these factual observations without a trial?

Cornish F. Hitchcock:

I think the District Court was not allowed to make these findings… they’re not findings… these observations when the overwhelming weight of the evidence–

Byron R. White:

I know, but it was on a summary judgment.

And there were… certainly the affidavits posed triable issues of fact.

Cornish F. Hitchcock:

–I think under this Court’s decisions in Anderson v. Liberty Lobby and Celotex that… v. Catrett… that it’s not enough simply for an opposing party to put in an affidavit saying, service is erratic, or airline service is booked during some time of the year, when there is–

Byron R. White:

But even if it was, there was a counter-affidavit that denied it.

Cornish F. Hitchcock:

–There was a counter-affidavit that is much more detailed, that spells out how many flights there are, that spells out there were nine flights a day during the high season, five or six–

William H. Rehnquist:

But again, that isn’t what the Third Circuit went off on at all, the Anderson or Celotex or something like that that one party’s affidavits in support of the motion were adequate, the others weren’t.

The Third Circuit just treated it as if it were finding facts.

Cornish F. Hitchcock:

–I think the Third Circuit was faithfully applying this Court’s decisions in Piper and Frazier that a lawyer’s great distance from the jurisdiction is not an adequate basis for saying that the lawyer is not fit to practice law, is not fit to be licensed there.

And to the extent that the Petitioners tried to say, things are different here, things are so bad down here that we can’t be held to the same standard, the Court of Appeals was justified is saying, they haven’t raised a triable issue, they haven’t put forward anything to suggest why they are different or why they should be unique.

William H. Rehnquist:

But then that’s got to be on the basis that communications difficulties, transportation difficulties, simply don’t matter, as you say under Piper.

Cornish F. Hitchcock:

I think they don’t matter under Piper, and I think in the ultimate, if things were really as bad as the Petitioners are saying, I think the place to be making that argument is not before this Court but across the street in Congress in terms of determining the extent to which the Virgin Islands should be held to the same standards as the mainland.

And that’s important for this reason.

The inclusion of the privileges and immunities clause in the Organic Act was a deliberate step that Congress took in 1968.

Up to that point, the privileges and immunities clause didn’t apply.

There would be no question that this sort of restriction would be valid, but after 1968, Congress extended this provision, and we think it’s significant for this reason.

Several cases from this Court, Mullaney v. Anderson in 1952, and other cases involving the Alaska territory, regarded the presence or absence of the privileges and immunities clause as important, because it indicates Congress’ Judgment about how isolated a territory is, how much discretion and latitude a territorial judgment should have in being able to decide whether to favor its own residents.

There may be good reasons for a territory to decide, we want to favor our local residents, or give preferences to people who move here, because it’s kind of rugged, because we want to give people a chance to move in or an incentive to move in, to stay, to populate the territory, and to develop the territory if one day it might come forward and be ready for state… for statehood.

But the Court fund in Mullaney that it was significant that Congress had enacted the privileges and immunities clause with respect to Alaska, and it brought Alaska into line with the practice in other states.

That was, as I recall, Fisherman’s case, such as Toomer against Witsell.

And I think that that fact helps to put this case into the proper perspective.

Congress, which has plenary authority in this area under Article IV, Section 3, looked at this issue about to what extent the Virgin Islands ought to be similar to the other territories in the mainland, and it decided in 1968 in the amendments to the fact that the Virgin Islands are ready.

The 1968 is a home rule statute.

It gives the Virgin Islands the right to elect a territorial governor and lieutenant governor, as they had previously been able to elect a territorial legislature, and it extended constitutional provisions to the Virgin Islands consistent with their status as a territory, and by that I mean consistent with the fact that citizens of territories don’t vote in national elections.

In our view, it reflects Congress’ judgment that with political rights come political responsibilities, including the responsibility of treating citizens on a non-discriminatory basis, citizens of other states.

I think it’s useful to point out as well that this type of residency restriction is not simply limited to the legal profession or to lawyers.

As the amicus brief filed by Mr. Hoffman and Ms. Weatherly indicate, there are a number of other similar rules on the books affecting a number of other professions.

Podiatrists, electricians, plumbers, architects, engineers, land surveyors, and taxicab drivers, all are subject to residency requirements if they seek to practice their profession in the Virgin Islands.

And we submit that that also casts doubt on the, the argument that this rule is specifically and narrowly tailored to deal with a specific concern.

I wanted to respond also to one point that Justice Stephens made earlier on in terms of the question to Ms. Hodge about are lawyers disbarred.

The opinion issued in the District Court indicates, suggests perhaps more accurately, that lawyers who refuse to take their share of cases may be excluded from practicing in District Court, but it does not suggest they may be totally disbarred and forbidden from engaging in any kind of office practice or practice that does not involve litigation.

In this case, the Petition… the Respondents are willing to do whatever is obliged of any other resident requirement… of any other residents of the Virgin Islands, and we submit that the case–

John Paul Stevens:

With respect to your response to the question I asked, Ms. Hodge said though there have been lawyers disbarred for this reason.

Cornish F. Hitchcock:

–I’m not sure what she meant by this… the first thing she said was they were excluded from practice.

Cornish F. Hitchcock:

I don’t know whether that–

John Paul Stevens:

I see.

You say she meant, might have meant just to say excluded from trial practice in the District Court.

Cornish F. Hitchcock:

–Excluded from District Court practice as opposed to practicing in the territorial court where there’s not the–

John Paul Stevens:

And I gather your client would probably be delighted to be excluded from that, if he doesn’t want to take these cases.

But this rule not only applies to people who want to go to court, but it applies to anybody who just wants to practice law in the Virgin Islands, doesn’t it?

Cornish F. Hitchcock:

–That is correct.

The residence requirement applies to anybody who wants to write wills, draft contracts, offer opinion letters–

Byron R. White:

Or to offer services from the continental United States to residents of Puerto Rico, or residents of Virgin Islands.

Cornish F. Hitchcock:

–Anyway, yes.

And that, I think, Is another reasons… most of the… most of the focus here is on litigation concerns, but the rule is much more exclusionary.

In fact, It’s more exclusionary than the rule in Piper which said simply that you have to live in the state on the day you’re admitted.

And It’s also more restrictive than the rule in Frazier which said that non-residents can open an in-state office.

And that’s all they need.

The respondents here have done those sorts of things, but they are still being denied a license.

If the Court has no further questions, we would ask that the judgment, of the Third Circuit be affirmed.

William H. Rehnquist:

Thank you, Mr. Hitchcock.

Ms. Hodge, you have three minutes remaining.

Maria Tankenson Hodge:

Thank you.

The reasons that the Virgin Islands rule of residence is broadly applicable, not only to litigators, is that all lawyers who practice in the Virgin Islands are by definition litigators, since all lawyers take their share of appointments and therefore, whether they might have fashioned themselves a specialty that didn’t include any litigation or not, in fact we all are litigators, as least part time.

Our rule is criticized as being somehow broader than the rule at issue in Piper because it applies and requires not only that you live in the jurisdiction at the time you’re admitted but that you continue to live there throughout the duration of your active practice.

But it’s my understanding that in the former opinions the states have been criticized for having rules that only require you to be a resident at the time of your admission and allowed you to then surrender your residency but keep your active practice.

In the Virgin Islands, once admitted, if you move away from the territory you become an inactive member of the bar.

You do not remain active because the court holds the view that you cannot fulfill your responsibilities to the court to be present when needed, to remain informed on Virgin Island law, and to fulfill your responsibilities if you don’t live in the territory.

It is not the case, and we’ve made this point before but I felt the need to repeat it in response to the argument, that the Virgin Islands contends that applicants for admission before you are not, or at least were not at the time they passed the Virgin Islands bar, competent lawyers.

But in terms of competency there is a concern of the Virgin Islands that wasn’t mentioned in earlier arguments, and that is that unlike the law of New Hampshire or the law of Virginia or the law of Louisiana, our law is not readily of disseminated across the United States.

The decisions of the courts of the Virgin Islands for the most part, for at least a year and a half, are available only in the District Court libraries, and photocopies, so the resident bar that has to go the District Court library and use an index system to do their research on current decisions.

The same is true of statutes passed by the Virgin Islands legislature.

None of the major publication systems of legal research include Virgin Islands reference materials.

We’re not in Westlaw, we’re not in LEXIS, we’re simply just not available across the country.

Maria Tankenson Hodge:

And the view of a nationwide bar that can readily cross the boundaries of the state and provide specialized service to clients may be a very good view.

But it does not necessarily apply to a small territory whose laws are unique to itself.

We’re not, as you know, covered by every federal statute.

We’re not even covered by every provision of the Constitution.

Byron R. White:

Don’t you think that you and your opponent have a different views of the facts with respect to communications and–

Maria Tankenson Hodge:

Yes.

Quite different views.

Byron R. White:

–And did the… did the… and those different views were reflected in the counter-affidavits that were filed–

Maria Tankenson Hodge:

Yes, they were.

Byron R. White:

–Wells what… how come it wasn’t at trial then?

Maria Tankenson Hodge:

The District Court, I think, in, in candor, felt that it knew the facts so well that it was in a position to, in effect, take judicial notice of the correct version of the facts.

Byron R. White:

Well, that’s a strange way of proceeding for summary judgment–

Maria Tankenson Hodge:

I quite agree, and it was suggested before the Court of Appeals that perhaps the more correct remedy would be to remand for a trial to decide the factual disputes.

The Court of Appeals declined to do that and simply held–

Byron R. White:

–Well, the Court of Appeals just didn’t seem to think they, it made much difference.

Maria Tankenson Hodge:

–The Court of Appeals evidently shared Mr. Hitchcock’s view that once Frazier was decided it need not concern itself with the special difficulties associated with practicing in a jurisdiction, that those concerns of the Virgin Islands had been eliminated from legitimate consideration by the Court’s decision.

William H. Rehnquist:

Thank you, Mr. Hodge.

The case is submitted.