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Why does U.S. 3rd Circuit Court, based in Philadelphia, hear cases from Virgin Islands?

Monday, December 02, 2002

By Torsten Ove, Post-Gazette Staff Writer

Tropical, judicial mystery

Last month, many of the federal district and appellate judges who preside in the 3rd U.S. Circuit Court of Appeal held their annual conference on St. Thomas in the U.S. Virgin Islands.

At first blush that sounds scandalous.

A taxpayer-supported judicial junket to paradise?

Not really.

Although circuit court judges regularly hear appellate cases in the Virgin Islands, as they do in other jurisdictions, this was the first time since 1977 that the conference was held there.

Usually everyone gathers in more mundane locations such as Philadelphia, Pittsburgh, Wilmington, Del., and Newark, N.J.

But the islands are fair game for conferences because the remote American territory is, strangely enough, lumped together with Pennsylvania, Delaware and New Jersey in the 3rd Circuit.

How is it that a chain of islands 1,000 miles south of Miami and 40 miles east of Puerto Rico ended up in the same league with Pittsburgh?

"I think the answer is, nobody knows," said Brad Baldus, senior legal counsel for the circuit clerk in Philadelphia. "It's an interesting issue. It comes up from time to time."

The islands became part of the United States in 1917 when they were bought from Denmark. The act of Congress that finalized the sale that year also made the islands part of the 3rd Circuit. But why?

There is no reliable record of how the decision was made.

If there was, Bob Jarvis would have found it. A law professor at Nova Southeastern University in Fort Lauderdale, Fla., with a background in maritime law, he has probably spent more time researching the mystery than anyone.

"The question of why the 3rd Circuit, which sits in Philadelphia, was chosen is one that has baffled historians for years," he wrote in the Journal of Maritime Law and Commerce in 1995. "Indeed, despite intensive research by the libraries of the 3rd Circuit, a satisfactory answer has never emerged."

Jarvis, a media-friendly sort, is perhaps best known as the professor who wrote a 45-page analysis a few years back on the legal challenges presented by "Gilligan's Island." He famously issued this pronouncement: "It is impossible to overstate the influence of 'Gilligan's Island' on American life."

The thing about Jarvis is he thinks studying law and writing about it need not be a stuffy experience. He's interested in all sorts of things, too.

So back in the mid-1990s, he set out to research the Virgin Islands question. It captured his imagination because of his expertise in admiralty law.

"It became like the Holy Grail for me," he said last week. "I thought it was fascinating."

He read old newspapers, interviewed people, researched the Congressional Record, traveled to the islands, but he found very little.

He presented his best theory in his article. Most likely, he said, a prominent Delaware senator influenced Congress to have the 3rd Circuit take the islands and no one caredenough to argue about it.

"There is no legislative history, there is nothing," said Jarvis, who has even searched through the senator's personal papers at the University of Delaware. "I think what happened is that they said, 'We have to put these islands somewhere.' And you've got to put them on the East Coast. I think it was like, 'We don't care who gets this hellhole.' Also, this happened right before adjournment for Easter. Everyone was trying to get out of Washington."

But why not give the islands to the circuit that covered Miami? Or New York? Or Boston? Jarvis surmises they were all too busy at the time, so Philadelphia got the call.

It was certainly no plum for the judges. Airlines didn't exist in 1917, of course, and the islands were hardly the exotic vacation destination they are today.

The chain is made up of more than 100 islands, about half of which belong to the United States and half to Great Britain. Most of the 100,000-plus people in the U.S. portion live on St. Thomas, St. Croix and St. John, all popular with cruise ship passengers.

In the days of sailing ships it was Columbus who first landed there, arriving on St. Croix in 1493 during his second voyage to the New World. He claimed the islands for Spain, but during the next two centuries control passed among various European nations.

In 1571, Sir Francis Drake used them to hide from the Spanish Armada, and in 1607, Capt. John Smith stopped by on his way to establish Jamestown in Virginia.

The Dutch and English established the first permanent settlements in 1625. The outposts failed and the islands became a refuge for pirates, the famous Blackbeard among them. In 1754, Denmark bought St. Croix from the French and St. Thomas soon became a thriving center for shipping, sugar and slaves.

But that didn't last. By 1850, the Dutch governor had ended slavery, and new steamships that didn't need to stop at St. Thomas began to replace the old sailing vessels. The islands declined in importance. When World War I started, Denmark wanted to get rid of them.

At the same time, the United States wanted them because, with the opening of the Panama Canal in 1914, it needed a naval base in the Caribbean to protect against the Germans.

On March 31, 1917, Denmark sold its possessions for $25 million in gold and American recognition of Danish claims to Greenland. The islands were first administered by the U.S. Navy and later transferred to the Department of the Interior.

As part of the bill authorizing the sale, the issue of which court would handle federal appeals had to be resolved. The Bureau of Insular Affairs felt the matter could be handled after the sale, considering that there were very few appeals from the Virgin Islands to the higher court in Denmark. The bureau also suggested a study of where to put the islands in the judicial system.

Congress didn't wait around, though, and on March 3, 1917, passed the bill authorizing the sale and assigning the islands to the 3rd Circuit.

In 1984, the late Judge Albert B. Maris, a longtime jurist who had helped codify the island's laws, was asked how Congress reached that decision.

"That's a speculation which I've undertaken for 48 years," he said, "and I don't know."

He suggested, however, that a Delaware senator pushed the idea for the logical reason that Philadelphia was only 90 miles from the 2nd Circuit in New York, which probably would have handled the islands if not for its huge caseload.

The politician, Willard Saulsbury Jr., became president pro tempore after the death of Sen. James P. Clarke of Arkansas in 1916. A Wilmington lawyer, Saulsbury knew about maritime and island issues. He had chaired the Committee on Pacific Islands and Puerto Rico and he had once won an admiralty appeal in the 3rd Circuit involving a Wilmington couple's yacht.

Most likely, Jarvis said, he merely suggested the circuit for the islands because it made sense at the time. New York was overwhelmed with cases, and the 1st Circuit in Boston was already serving Puerto Rico. The 5th Circuit -- now the 11th -- which then covered Florida and other Southern states, was too busy with appeals from the Panama Canal Zone. The 4th Circuit, which includes the Carolinas, Maryland and Virginia, was too short-handed.

So Philadelphia it was, and has been to this day.

Jarvis said no one was thrilled about going to the islands in the early days, as they might be today. The trip was by steamship, which took a long time, and the place was economically backward with few conveniences. Certainly there was no such thing as air-conditioning. On top of that, a hurricane wrecked the place in 1928.

"It was the American Devil's Island," he said. "Nobody was fighting for the Virgin Islands. It really was a hellhole."


Torsten Ove can be reached at tove@post-gazette.com or 412-263-2620.

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