 This is St. Tech, Hawaii. Community matters here. Aloha, and good afternoon. My name is Sherri Broder, and I'm here for the show, Life in the Law. I'm pleased to have Judge Gustavo Gelpi with me today. He is here from Puerto Rico. He is the chief judge of the Federal District Court in Puerto Rico, and he was appointed by President George W. Bush to a seat on the District Court. He had already been U.S. magistrate. He is now teaching for one week at the law school here, and he's teaching the most amazing class about the status of the U.S. territories, of which Puerto Rico is one, although there's some disagreement on whether or not it's really a territory, but it's certainly treated as a territory. He has written a very impressive book, The Constitutional Evolution of Puerto Rico and the other U.S. Territories. So the real question is, does the U.S. Constitution follow the flag? In other words, when the United States of America plants the flag in Guam or in Puerto Rico, does the U.S. Constitution follow that flag? And so, Judge Gelpi, I want to welcome you here to Hawaii. We were a territory, and we only became a state recently, so we experienced some of the problems, I think, that you're experiencing in Puerto Rico. So, well, can you give us the answer to that question, Judge Gelpi? Well, before giving you the answer, Aloha, Mahalo, thanks for having me back here. I was here about a year and a half ago, and we were talking about some of these topics, and since then, things have changed a little bit territorial-wise. So, well, the territories right now, there's still five U.S. territories. Puerto Rico is one of them, U.S. Virgin Islands, Guam, Mariana Islands, and American Samoa, those are, you don't want to call them territories. Jurisdictions, U.S. Jurisdictions on the U.S. flag. But the question is, does the flag or the Constitution follow the flag? And the simple answer is no, unless you're a territory that's destined to become a state, all the rights or the constitutional provisions will not apply. And that's the bottom line. That's the way it was 120 years ago, 1898, 120 years ago, and it's the way it still is today. And depending on what territory you are, you might have more rights than in the other territories, different constitutional provisions may apply, and it's a hodgepodge, ad hoc, case-by-case basis on each territory. But I mean, isn't Puerto Rico in a state or status where it could become a state? Yeah, Puerto Rico has its own Constitution. It was approved by Congress. It's the same step any state takes when it's approved by Congress and gets admitted to the Union. Puerto Rico, basically, all those steps were taken, but the Constitution was approved by Congress, but it was not admitted to the Union. Instead, a Commonwealth of Puerto Rico was created. And for over 50 years, everybody, of course, there were arguments both ways, but at least the courts had never said the Commonwealth did not have its own state. It had its own state-like structure. There were arguments in Puerto Rico that it was still subject to the plenary powers of Congress. Other folks believed that Puerto Rico had obtained sovereign status, and it was sort of like an agreement with the United States, sort of similar to the Marion Islands. About a year 19, I mean, 2016, the Supreme Court in a double jeopardy case, which we discussed last time, it was pending before the US Supreme Court, ruled that the Commonwealth of Puerto Rico on a constitutional level was a creature of Congress. So it's a single sovereign. So even though it has, you know, on a statutory level, Congress has given Puerto Rico what it has. It has not changed it up to now. But on a constitutional level, Puerto Rico is not sovereign. It's like an agency of the United States. Congress has plenary powers to legislate over the island. So that's the Supreme Court ruling. It's Sanchez Valle versus Sanchez versus people of Puerto Rico. It's a criminal case. But after deciding that case, the US Supreme Court also decided another case from Puerto Rico, and that was a bankruptcy case, because states cannot, a state like the state of Hawaii, cannot go into bankruptcy proceedings, nor can any other states. Puerto Rico was treated like a state for purposes of that same statute. And the Commonwealth of Puerto Rico tried to enact a statute, a local statute, allowing local bankruptcy. The Supreme Court, in that second case, said, you can't, the Commonwealth of Puerto Rico, can't have its own bankruptcy statute. You have to go to federal bankruptcy law, and you can't go bankrupt. After that, Congress, you know, what it can't do to a state, it legislated, and it created a special bankruptcy statute for Puerto Rico, so Puerto Rico could go bankrupt. And right now, it's in a bankruptcy proceeding. It's a special proceeding. It's not applicable to the states. It's only to Puerto Rico. But it's a very unique statute, because it creates an oversight board. There's one, instead of a bankruptcy judge, it's a federal district court judge who's presiding over the bankruptcy. And the Chief Justice of the United States, under that law, had to appoint that federal judge. This federal judge was sitting in the Southern District of New York, but the Chief Justice selected her to preside over that case, rather than an ordinary bankruptcy judge. What was interesting, also, about that law is that it creates a fiscal oversight board. And for any fiscal matters, that board, in essence, can veto any legislative act, or any executive act, or if the Puerto Rico Supreme Court were to decide that something pertaining to how a fiscal matter is applied under the constitutional Puerto Rico, that fiscal board can overrule, overwrite, you know, the three branches of local government. So in a sense, what has happened, that Congress has, using its territorial power, basically amended the Puerto Rico Constitution and created a fiscal board above the three branches of constitutional governing. Just imagine if that were to happen in the state of Hawaii or California, you know, it would be quite something that I'm sure would be challenging all the courts and politically, you know, the governor of Hawaii and everybody would say, you can't do that, it's an uproar. In Puerto Rico, there has been uproar. There have been, I think, one or two or three constitutional challenges. They're not before me, because they're before the district judge who presides over that. But one of them, it's a very interesting one, and I've looked at the brief, I don't know what the answer is going to be, and these are answers that the Supreme Court might have to ultimately answer. But one of them is that these officials and the board are not confirmed by Congress, they're appointed directly by the president, and that would violate the appointment clause of the Constitution because they don't go through Senate confirmation. Well, do they also rely on the insular cases? And maybe you could just, I think we got to go back in time so you can tell us about the insular cases. They've added this come from where the territories weren't, you know, they're still like in Puerto Rico, they're American citizens, but they're not treated, they're not given equal treatment. So where is the source of that thinking? Well, the insular cases in a nutshell are a series of cases from the U.S. Supreme Court dating back to early 1900s all the way to like 1922, where the Supreme Court ruled that there are territories in the United States that are incorporated, and if you're incorporated, the full Constitution follows the flag, and you're destined for statehood. So the Supreme Court said, Alaskan, Hawaii, incorporated territories, you're heading for statehood at some point, and eventually they became states. As to Puerto Rico, back then the Philippines, Guam, in those days the Supreme Court said, unincorporated territories. So if you're unincorporated, the Constitution doesn't fully follow the flag, and therefore you're at the whim of Congress, literally, and you can be treated differently. Sometimes you can be treated differently better than the states, and it's happened, and I'll give you an example. Puerto Rico is not a state, it has a federal district court, that's under Article III of the Constitution. So judges in Puerto Rico, federal judges are appointed for life. States don't get a federal Article III court until the Admissions Act. So in a sense Puerto Rico, short of a state, has a federal court that no other territory has ever had. So that is unique. But in another sense, for example, Congress can discriminate for the executive branch, and for example, when it comes to social security benefits, my colleagues here who are federal judges, let me give you an example. On an annual basis, let's assume it's 10% of my salary that goes to social security and Medicare, and it's the same amount here in Hawaii for any federal judge in California and Florida, but when it comes back to giving, when I qualify for social security in a couple of years, I get maybe two thirds or three fifths of what everyone else gets in the states just because I reside in the territory. Same thing happens to veterans. Veterans go to war, they go do their military duty, but if they retire in Puerto Rico or they don't get as many benefits as they get in the mainland. Is that true in Guam as well? In Guam, Marion Islands, Samoa, and a lot of these jurisdictions, it's per capita, it's big recruitment stations. I think in Guam, two out of every 10 Guamanians serves in the military at some point. So it's kind of ironic. And the thing, these insurg cases are based on notions that the citizens, the residents of these islands when the US came in were in fear, they were stupid, they couldn't govern themselves, so the US had to come here and act like a... We were doing them a favor. The US was doing them a favor. These are the cases that are still good law. They get cited. And for example, when Congress passed the bankruptcy statute for Puerto Rico, it says Puerto Rico is an unincorporated territory. So it's not a state, it's unincorporated, so therefore we can do whatever we want. And since the Constitution of Puerto Rico was enacted in 1952, nothing Congress had never tinkered with the Republican form of government created by the Constitution. So in 2016, maybe 60 years later, I'm not good at math, but 50, 60 years later, Congress starts tinkering with the Commonwealth it had created. So that's where it all got put into question, is the Commonwealth sovereign still like a state or does Congress still have plenty of problems? And I think right now, at least the Supreme Court has hinted it is and Congress has interpreted it. There may be arguments to the contrary, but unless the Supreme Court rules otherwise or Congress acts otherwise or says we're gonna incorporate Puerto Rico, that's how it's being treated at this point. And I assume like every time things like this happen, we'll probably see a series of cases reach the Supreme Court in the next couple of years about the confines of how much can you distinguish Puerto Rico or treat citizens differently? Because one thing also is, it's a territory, you can treat the territory perhaps differently. But when it comes to rights of citizens, shouldn't all citizens be equal no matter where any citizen lives. One of the misnomers about all the thing, people say, oh, when it comes to Guam, it's the Chamorros, the Guamanians, they can get treated differently. They're not really Anglos. Same in Puerto Rico, oh, they're Puerto Rican descent, we can treat them differently. But the problem is, for example, you move to Puerto Rico or you move to Guam, you lose some of these constitutional rights. You go to Puerto Rico. And if you move to Massachusetts, you get some of the other rights. I get them back. I've had that issue because I- Okay, we're gonna have- Okay. Yeah, we need to take a break right now, so we'll be back in a few minutes. This is Think Tech Hawaii, raising public awareness. Post-Evasion Review here on Think Tech Hawaii. Join me every Monday afternoon from 5 to 5.30 Hawaii Standard Time for an insightful discussion of Contemporary Asian Affairs. There's so much to discuss, and the guests that we have are very, very well informed. Just think, we have the upcoming negotiation between President Trump and Kim Jong-un. The possibility of Xi Jinping, the leader of China remaining in power forever. We'll see you then. Aloha, Sherry Broder again. I'm back on with Judge Gustavo Gelpe from the District Court in Puerto Rico. And we had a very interesting discussion already about the different way that Puerto Rico is being treated, even under the U.S. Constitution, even though all its citizens are American citizens. I wanted to, I mean, everybody wants to know how about the hurricane? I mean, we're very busy answering questions. How about the volcano? But on Oahu, we're not too much affected by the volcano. So how is it in Puerto Rico with the hurricane? And does this issue of different treatment follow through for federal aid from the hurricane, or how did all of that work out? Well, let me say Hurricane Maria was devastating. It was a category five hurricane. I think since Hurricane George in 1998, we had not been hit as bad, and George was not as bad. The reconstruction, it hit part of the island, but the reconstruction and the energy came back, you know, maybe within a month or something. This took a couple of months, even in the best areas. And in some areas, there's still no power. Puerto Rico has an infrastructure for the power system. One central power system, one grid, and it's existed for probably 40, 50 years, so it's very, very old. So I think one of the lessons learned, I think, you know, the governor and the legislature, or I guess they're contemplating it, they're privatizing the energy system to make it more efficient. So that's one of the big challenges. We went through something similar with the telephone system because just one central thing was much more expensive, and it got privatized, and I think that's where it's headed. But it was a crazy thing. This hurricane hit us really fast. I think maybe it was about two hours, we got hit, then the IO of the hurricane was there for about an hour, then another two hours, but when you get category five winds, all the light poles and electricity, it's by light poles, it's not underground. So that hit us. There was water most of the time, almost everywhere, so that wasn't the biggest, at least there was water. But it was really, really crazy. From my perspective, well, let me say something, if Puerto Rico were a state versus a territory, Puerto Rico doesn't have senators, so we would have two senators. We would have five congressmen. We have one congressperson, like Hawaii did before being a state, it's a delegate, but there's no voting rights, just a voice. So that delegate has to do the work of five congresspeople and two senators for a population that everybody suffered in this instance. So politically, we didn't have the voice or the power to make things happen. The federal government was there, the president visited Puerto Rico, the vice president visited Puerto Rico, the army was there, the Navy sent a naval hospital, a ship, things happened, but I think if we had a greater representation, of course, and again, I'm not making the political pitch because I judge, but I think it could have been different. We would still probably be getting more aid and putting more pressure on Congress. So that's one of the things. I think from a judicial perspective, one of the things that was very important, the court was up and running, I would say three to five days after the hurricane. And of course, the civil case, a lot of the attorneys, the firms, they couldn't go back to practice. So most of the civil cases got stayed, there were orders, all the judges got together. So anything that was due now is due 30 days from now, or 60 days, and then we continued all the terms, that was not an issue. Criminal cases, in the criminal case of the defendant has a right to speedy trial, but of course, this is one of those things that really tolls the speedy trial, so it's not an issue. But the big issue that the court had to be open was, there's new arrests, people commit crimes after the hurricane. There's people who get arrested, there's arrest warrants out from, and just can't arrest a person and leave them out in limbo, so the court has to be open. And there's certain proceedings that the court needs to be open. So I'm very happy to say that the court then suffered too many damages and was able to operate, because everything runs on an electronic docket, and there's a cloud, nothing was lost, none of the data. So cases, little by little, the court was going, I think it's important for a federal court in particular to continue to operate in a minute after hurricane, because it gives people a sense justice can continue, you know. Well, you want the rule of law to apply, because we have a disaster like that. You know, like in New Orleans afterwards, there's a lot of crimes. The federal court continued to operate slowly, but surely, and I think it sends a positive message. We're, you know, the federal government's there. Yesterday was interesting, I went to the federal court here, I met with my Chief Judge counterpart, Chief Judge Seabright, and some of the other judges of the court and Chief Probation Office, the clerk of court, and I spoke to them about my experience, I shared with them some documents that we had pertain to the hurricane, because when we got hit, we were not prepared for that hurricane, I think. We were prepared because we knew we were coming, but now I think we're more prepared, and even if we don't get hit, hopefully we won't get hit, but we know what to expect, and you prepare before, and then you prepare during, and then after you do what you have to. So I shared a lot of that information with the Chief Judge here in Hawaii. I'm gonna also be providing forms and orders, because the equipment has to be purchased, things have to, Probation Office has to monitor, like the supervisees who are a bond, and people who are on bail, and that has to continue. So I give them all the heads up, and I put my folks at the probation office, clerk's office, and at the court at his disposition, so hopefully Hawaii will not get hit by a hurricane, I know it's been a while, but I think it's important for the court to be prepared, and my advice, anybody who listens to the show, and I'll look at the camera, talking about you, but if you're working for the executive or legislative branch or the police, talk to folks from Puerto Rico, Louisiana, Texas, who've gone through these natural disasters, and get advice now, don't get it after, and there's a lot of things that you can pre-plan, and it's good, and FEMA has a lot of checklist, anybody who is a ordinary citizen is watching the show, go on the webpage and look at FEMA preparedness list, and there's a lot of things, like get batteries, have a hurricane season, have canned food for vegetables, fruits, pasta, for a couple weeks. How about a nuclear attack? Does FEMA have any chance for that? Well, I think the chance of a nuclear attack are kind of hopefully going down, but I haven't seen those yet, I'm not an expert in that, hopefully. Oh, okay. None of us will during lifetimes. Oh, okay, okay. So, well, what is it like in Puerto Rico today? Well, we read, I think, and the impression we're left with is that a lot of people still don't have power, that a lot of Puerto Rico hasn't been able to come back, even now months ago. Yeah, there are parts, like the main areas have power, because like it's the city, but when you go to the countryside, it's harder, I think some of you know, I'm not an expert on this, but I think some of the easements have, with all the mudslides and flooding and everything, they kind of moved, you don't know exactly where the power lines are, there's areas in the mountains that, power I assume got, you had power from X place to Y place, and then to Z place, and if part of that is gone, you just can't put it automatically, and there's, so there are parts unfortunately in the island that still have no power, I don't know about water. The people overall have helped everybody else, so even poor communities, there's, and people have been relocated to the mainland also, FEMA relocated them, I think there's a lot of them coming back, but if you go even in San Juan, there's areas that are still, need reconstruction, the insurance companies, you look at the buildings, you still see like a lot of windows missing, balconies, damages, but the insurance companies, like for example, the building where I live, the adjuster just finished the final report, and then that goes to somebody else and it's a bureaucratic step, and eventually when the money comes in, it could be about a year and a half after, so what if we get hit by another hurricane? The building where I live, it's not ready for another hurricane. So that's one of the things that happens and hopefully we won't get hit, but a lot of businesses close, particularly smaller businesses, because they don't have generators and there's no power, and restaurants, you can't open, and the food rots, if you can't have a generator, so business have been closing, other businesses have started opening afterwards, so in the face of disasters, there's always other business, but it's been very, very slow, I know the governor has, if you're a governor, somebody's gonna criticize you no matter what, same if you're a mayor, but I think overall the governor has done his best, the police have done their best also, during the days of the hurricane is amazing, the policemen were like, there were no traffic lights, that was one of the other things, like incredibly people drove carefully and a lot of people, it's like one car, one car, and it was a couple of days after the hurricane, after that people started going crazy, but there was police presence, immediately after the hurricane, so that everybody felt kind of safe after that, but after, while some policemen have been retiring, some have been moving to mainland, so the police force has shrunk. It has shrunk, hm. Yeah, and then even in the municipalities, it's been tough, but it's gonna take, I have to admire the governor for trying to do his best, and I think anybody in his pants would be criticized, you're gonna be praised for some things, I think one of the best things was the information about the hurricane, everybody was really informed, but there comes a point, like the power goes out, and then you have to have like the old AM radios, and I think my 17 year old son had tinkered with mine and it disappeared, and he likes playing with mechanical things, so I did not have that radio. The other thing like cell phones, it was very interesting and that's something I was telling the judge in the court, and this year at the court, we purchased like these broadband radios, I don't know, like satellite radios. Oh, you did? And we had some last year, but now we're gonna have some more for like key supervisors, and like I guess being chief judge, I have to know, because the cell phone, like the tower, cell phone towers went down, so then instead of having five towers, and not like 300 towers, maybe you have 20, and then those of emergency, they're helping, for example, your AT&T, and there's Verizon, the emergency, okay, you'll let the Verizon clients use your, but then like, you see like little five lines on your phone when you have a high signal, usually it was like one, and many times zero, so there were times a day there was like no signal, I remember I used to check my emails and everything like at three in the morning, 3.30, and that was, but the advice is, everybody takes photos, but apparently everybody starts sending videos, and those things jam everything up, so my advice, save the videos, but immediately don't start sending them out because it blocks the signal for everybody, and again, it's lessons learned, you learn, but... Okay, well, I really wanna thank you for joining us today and everything, and we'll try to follow Puerto Rico and see if the bankruptcy ends up is in a positive way for Puerto Rico. Next time I'm here, I hope to have more news and update, and we'll see. Thank you very much, mahalo. Okay, mahalo everybody, thank you very much, think tech Hawaii for opportunity to share our thoughts on Puerto Rico.