Berne Corp. v. Government of the Virgin Islands

50 V.I. 638, 2008 U.S. Dist. LEXIS 69246
District Court, Virgin Islands·Decided September 11, 2008·No. Civil Nos. 2000-141, 2000-167, 2001-151, 2001-155, 2001-181, 2001-196, 2001-197, 2001-228, 2002-057·Published·Cited by 3 cases

Opinion

GÓMEZ, Chief Judge

MEMORANDUM OPINION

(September 11, 2008)

This matter comes before the Court to determine whether the defendants, the Government of the Virgin Islands; Roy Martin, in his official capacity as Tax Assessor (“Martin”); and the Board of Tax Review (the “Board”) (collectively, the “Defendants”), should be held in contempt for violating an Order of this Court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 2003, this Court entered a Decree (the “May 12, 2003 Decree”) enforcing a settlement agreement between the various named plaintiffs (the “Plaintiffs”) and the Defendants regarding real property taxation in the Virgin Islands. See Berne Corp. v. Gov’t of the V.I., 262 F. Supp. 2d 540, 575-77 (D.V.I. 2003), aff’d, 105 Fed. Appx. 324 (2004) (unpublished).

In the May 12, 2003 Decree, the Court enjoined the Defendants from assessing any and all real property in the Virgin Islands until the Court found that two primary conditions were satisfied. The first such condition was the establishment of a property tax system that reliably and credibly assessed and taxed all real property on its actual value, as required by 48 U.S.C. §§ 1401-1401e (the “1936 Act”). See id. at 575. The second such condition required the Board of Tax Review to consistently hold hearings and reach determinations on appeals within sixty days. See id. The Court also held that the Government could issue bills based on the assessment values for the 1998 calender year reflected in the 1999 tax bills if it provided a mechanism to adjust the assessments and bills retroactively. Thereafter, the Legislature of the Virgin Islands passed Act No. 6586 (“Act 6586”), which provided for such a mechanism. That act was signed into law on July 14, 2003.

On August 13, 2003, on the Defendants’ motion, the Court modified the May 12, 2003 Decree. The Court found that, in light of Act 6586, the Government had “acted sufficiently to provide relief for the Territory’s taxpayers and ... that the Government is entitled to collect revenue from property taxes.” In re Tax Litig., 276 F. Supp. 2d 435, 436 (D.V.I. 2003). [643] Therefore, the Court modified the May 12, 2003, decree with respect to “all non-plaintiff taxpayers to allow the Government to issue tax bills based on the 1998 assessments reflected in the 1999 tax bills.” Id. The Court noted that the decree “shall remain unmodified and in full effect for all parties to this litigation.” Id. Aside from the August 13, 2003, modification, the May 12, 2003 Decree remains in full force and effect.

On June 29, 2007, Congress repealed the 1936 Act, retroactive to July 22, 1954 (the “Repeal Act”).

On December 5,2007, the Defendants filed a motion to vacate the May 12, 2003 Decree. The Court subsequently held several status conferences and hearings regarding that motion. The Court received briefs regarding the motion as recently as July 15, 2008. The Court also heard argument relating to the motion as recently as July 2, 2008.

On March 10, 2008, the Governor of the Virgin Islands signed into law Act No. 6991 (“Act 6991”). That act repeals several sections of Title 33 of the Virgin Islands Code, which sets forth laws governing taxation and finance in the Virgin Islands. Among other things, the act authorizes Martin to issue real property tax bills for 2006 during the 2008 fiscal year.

On August 19, 2008, the Defendants filed a document with the Court captioned as an “Informative Notice.” In that document, the Defendants stated that the Government “will issue the 2006 property tax bills to property owners.” Thereafter, the Plaintiffs filed a motion for an order to show cause why the Defendants should not be held in contempt for violating the May 12, 2003 Decree. The Defendants filed an opposition to the Plaintiffs’ motion.

The Court held a status conference with the parties on September 3, 2008. At that status conference, the Defendants indicated that the 2006 property tax bills were issued at rates not based on the 1998 assessments. Given the Defendants’ apparent indication at the status conference that tax bills had been issued in violation of the May 12, 2003 Decree, the Court issued an order requiring the Defendants to show cause why they should not be held in contempt.

A show-cause hearing was held on September 8, 2008. At that hearing, the Plaintiffs presented the testimony of Roy Martin (“Martin”) and [644] Lucille Kirschbaum (“Kirschbaum”), the property manager of the one of the named plaintiffs.1 The Defendants offered no evidence.2

II. DISCUSSION

“A plaintiff must prove three elements by clear and convincing evidence to establish that a party is liable for civil contempt: (1) that a valid order of the court existed; (2) that the defendants had knowledge of the order; and (3) that the defendants disobeyed the order.” Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir. 1995) (quotation marks and citation omitted). “The validity of the underlying order is not open to consideration.” Harris v. City of Philadelphia, 47 F.3d 1311, 1326 (3d Cir. 1995). “The resolution of ambiguities ought to favor the party charged with contempt.” Id.

“There is general support for the proposition that a defendant may not be held in contempt as long as it took all reasonable steps to comply.” Id. at 1324. (citation omitted). “Flowever, the burden is that of the defendant to introduce evidence beyond a mere assertion of inability, and to show that it has made in good faith all reasonable efforts to comply.” Id. (quotation marks and citations omitted).

III. ANALYSIS

The Defendants do not contest the second and third elements necessary for a contempt finding. That is, the Defendants concede that they had knowledge of the May 12, 2003 Decree and that they have violated that injunction by issuing tax bills at the 2006 rate.3 The Court therefore trains its analysis solely on the first element necessary for a contempt finding: whether a valid order of this Court exists.

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Berne Corp. v. Government of the Virgin Islands, 50 V.I. 638, 2008 U.S. Dist. LEXIS 69246 (vid 2008).

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