 Good morning. We are here today, I think, Tech Hawaii with Judge Gustavo Yelpi from the district of Puerto Rico. He's the federal judge and he's been serving in that capacity for a while now, and he's also president of the, he's also past president of the Federal Bar Association. He was the first federal judge to become president of the Federal Bar Association and during his term I led the Federal Bar to be much more active. In addition, I just want everyone to know that he was confirmed in his appointment by the President George W. Bush unanimously by the U.S. Senate. So that's quite an accomplishment and can give you an idea of what an exceptional person he is. So welcome, Judge Yelpi. So happy to have you here. Judge Yelpi and I know each other through my late husband, Professor John Van Dyke, and both of them are very interested in the law governing the territories of the United States of America. Now Hawaii, of course, is no longer a territory, it's a state, but Puerto Rico is still a territory and both Judge Yelpi and my husband have both written extensively about the unequal treatment of the territories as well as having taught in that area. So Judge Yelpi, I know that there's been some recent developments in what we call the insular cases, which is the term used to describe the cases relating to the territories. And the recent developments have been just this year. So I was wondering if you could bring us up to date on the cases that are affecting Puerto Rico and how these recent developments, how you interpret these recent developments? Well, first of all, thanks for inviting me again. It's a pleasure being back here in Hawaii. Well, this just past summer, beginning in June, the Supreme Court issued two very important opinions regarding Puerto Rico. The last time it had issued opinions involving the constitutional status of Puerto Rico within the United States had been two, three decades ago. So two opinions came down and then immediately after these opinions, Congress also acted, which had not acted this way since before 1952 when the Commonwealth of Puerto Rico was created and its constitution was approved by Congress and the people of Puerto Rico. So what occurred was early in June, the first case that came out of the U.S. Supreme Court was a case coming from the Puerto Rico Supreme Court. It's a case called Commonwealth versus Sanchez Valle. In a nutshell, this case involved a prosecution, originally by the federal authorities, the defendant pled guilty to weapons counts. Then at the state level, he was charged for those same exact weapons counts. The case went all the way to Puerto Rico Supreme Court. The Puerto Rico Supreme Court said it's double jeopardy because the United States and Puerto Rico, because Puerto Rico is not a state, they're considered a single sovereign for the purposes of double jeopardy. Okay, let me just interrupt you there. So they're considered a single sovereign. So that means one governmental entity, whereas can you compare that to say the state of Hawaii? Hawaii is a separate sovereign to the United States of America. The power of the United States derives from the states. What the theory of the Puerto Rico Supreme Court was that the power of Puerto Rico, even though it might have a constitution of its own, enacted by its people, approved by Congress, just like occurred in Hawaii, actually seven years after Hawaii and Alaska, seven years after the Puerto Rico Constitution was approved. But Puerto Rico, the Puerto Rico Supreme Court said that that constitution, the ultimate source of power, was ultimately the Congress of the United States. The case goes up to the U.S. Supreme Court, and the U.S. Supreme Court resolves that, in fact, the U.S. and Puerto Rico, for purposes of double jeopardy, that is, it's for single sovereign, it's one single sovereign. So if the federal authorities prosecute, the state authorities can't prosecute for that same offense or vice versa. And that's the first ruling that we have. So that's different for a state, because if in Hawaii we could have prosecuted again for the same offense? Yes, that same case would have taken place in Hawaii. The federal government could have prosecuted, sentenced defendant, and then the state authorities of Hawaii could have prosecuted for that very same offense. And because they're two separate sovereigns on equal footing, they could both prosecute and sentence the defendant. That could not happen in Puerto Rico because of its territorial status and the United States Supreme Court's analysis. What the Supreme Court did was very interesting. It went on engaged in a historical analysis, and the test, the Supreme Court of the United States said this is a historical test. This is going to be based on the history of Puerto Rico and the ultimate source of power, even though it has its constitution, everything derived from congressional acts, which ultimately led to that creation of that constitution. So for all purposes, for the double jeopardy clause, it's a single sovereign. Contrary to Indian tribes, which pre-existed the nation. And in that case, it distinguished the Indian tribes. Indian tribes, there's no double jeopardy. But for Puerto Rico, there is double jeopardy. So the United States uses the ability to try people again in case especially in civil rights related kinds of criminal cases, where they think that for some reason the state didn't adequately prosecute. Well, that would have been, for example, in the 90s, the Rodney King case. He was acquitted at the state level. The police officers, they were prosecuted by federal authorities. They were the same exact conduct under a federal and state statute. In Puerto Rico, they couldn't be prosecuted. Any other state, they can. It's got its pros and its cons. You have to look at different commentators. Some individuals in academics think it's fair that a person should not be prosecuted twice. Anyway, on any circumstance, there's actually a concurring vote by Justice Ginsburg regarding that principle. Two of the Puerto Rico Supreme Court justices, the Associate Justice also, they concurred in the result, but they felt that the Puerto Rico Constitution did not allow that sort of double prosecution. So it's very interesting. Interesting also, the Puerto Rico Supreme Court relied a lot on the insular cases. The U.S. Supreme Court does not mention the insular cases. It simply goes to the historical test and recognizes that Puerto Rico does have a unique relationship with the United States. It's unprecedented, but nonetheless, it's a single sovereign. So maybe you could just tell our audience what are the insular cases. I know that you and I know quite well since we worked in that area. We could be here for weeks and ages, but the insular cases are cases decided from early 1900s all the way to 1922 at the Supreme Court. And what these cases decide is that Puerto Rico and other overseas territories, including Hawaii at some point, because what the ruling is that they're part, but they're not really part of the United States. They're foreign in a domestic sense. They're part of the United States, but the Constitution does not follow the flag necessarily, except as the fundamental constitutional guarantees. Hawaii was what it's called an unincorporated territory for about two years until the Supreme Court said now it's incorporated by the 1900 Organic Act. Puerto Rico had its own Organic Act in 1900, 1917, very similar to Hawaii, but the Supreme Court decided that Puerto Rico was not incorporated. And then an incorporated territory means it's destined for statehood. So it was really the Supreme Court who decided that Alaska and Hawaii were to become states. Puerto Rico, Virgin Islands, some of the other island territories were not to become states. And it's just based on judicial Supreme Court interpretations. Congress has followed that doctrine for all these many years. What is interesting is after the Sanchez-Ballet decision, there was a second decision by the United States Supreme Court. That one came out of my court, the U.S. District Court for the District of Puerto Rico, went up to the Court of Appeals for the First Circuit. That's called Franklin Trust. The issue was that in 1984, Congress for no apparent reason, there's no legislative history whatsoever, took Puerto Rico away from the benefits of Chapter 9's bankruptcy protection. So Hawaii can have instrumentalities or public corporations or agencies that can benefit from bankruptcy law. Well, I think we've got to explain to our viewers what is Chapter 9 protection. What is it that Puerto Rico is not being able to have? Well, the instrumentalities in Puerto Rico cannot seek bankruptcy protection. So for example, let's assume a particular agency here or instrumentality of Hawaii. Again, I'm not that familiar, but issues bonds. Let's say the Hawaii Power Authority or the Water Authority or Highway Authority, they issue bonds. Let's assume they're insolvent. They can seek bankruptcy protection. That bankruptcy protection was taken away from Puerto Rico in 1984. And it had never been an issue. Nobody complained about it until now that Puerto Rico was faced with the fiscal crisis it's facing. We could go on for ages about that, but it's really, really bad. Compare to Greece. Even compare to Greece, it's bad? Compare to Greece or what's going on in Spain and some parts of Europe, but it's a very bad situation. So the problem is Puerto Rico could not avail itself of the bankruptcy law. It enacted it on the bankruptcy law. The case goes to the federal courts. The federal court says under the supremacy clause only Congress can enact bankruptcy laws. So is that your court that ruled that? That's a colleague of mine. And he was affirmed by the Supreme Court. So I guess he was right. And he knows he's right. He watches this. So that was judged by Sosa. And then Puerto Rico enacted its own bankruptcy law, but it was held unconstitutional. When the Supreme Court holds that affirms that ruling, what Congress then does, based on the aftermath of Sanchez Valle, the Franklin Trust case, and this is within weeks. Congress enacts what is known as the promesa statute. That's acronym for promise. It's an oversight act. It creates a fiscal board. And what Congress does, relying on Sanchez Valle and on the bankruptcy decision, it says that Puerto Rico, it's legislating under the territorial clause and creating this oversight board. It creates the equivalent of a bankruptcy law under the territorial clause for a territory. But it's not Chapter 9. So it's not extending Chapter 9. I think Congress, well, the reason it doesn't invoke Chapter 9 is or extended then to Puerto Rico is then it says, well, then the states are going to start going into bankruptcy or what's going to happen? So they just didn't want to create a president that would apply to state. So they create this special bankruptcy law to Puerto Rico and create an oversight board. And the oversight board in a nutshell, they have powers under federal law that, for example, of the governor-elect. Now, when he comes into power, has any executive orders or any actions that have anything to do with the fiscal status of Puerto Rico, or the legislature adopts a budget, or anything that's fiscal in nature, or could even extend to a Puerto Rico Supreme Court decision that interprets the fiscal status of Puerto Rico, that oversight board has the authority to trump or to stay that act by the local government. So do people in Puerto Rico view that legislation as something that's going to be helpful to Puerto Rico? And did the legislation come with any financial support for Puerto Rico? Well, there's no financial support in the legislation. The governor of Puerto Rico and the congressman, who is now stepping down, both requested the legislation. They felt it was the only way to move Puerto Rico forward. So is your congressman doesn't get a vote, is that correct? He doesn't get a vote. The congressman in Puerto Rico is elected for four years, and it's one congressman for the work of five congressmen. He doesn't have a right to vote. He's got a voice but doesn't get to vote. And it's very similar to the congressman that Hawaii had before Hawaii became a state. So it's that exact relationship. But why does Puerto Rico then have a full court? You have an Article III court in Puerto Rico, which is equivalent to the same kind of federal court that we have here in Hawaii, but you don't have a congressperson who can vote. So why is there that distinction? Well, that's a very good question. The federal court, Congress created an Article III court pursuant to its power under Article III of the Constitution to create inferior federal courts to the Supreme Court. It's the first time, the only other federal court, every time a territory became a state in the Admission Act there, the congress would create a federal court. For example, in Hawaii, when Hawaii becomes a state in 59, you get an Article III federal court. An Article III, for those who don't know, it means that the judges have life tenure. They cannot be removed except impeached for just cost. But was it interesting in Puerto Rico? Puerto Rico has always had a territorial court. Hawaii and Alaska got their federal courts. And sometime in 1966, the Congress, based on recommendations of the Judicial Conference of the United States and the United States Department of Justice, recommended to the Congress that Puerto Rico get a court just like any state. And the legislative history says, well, Puerto Rico is just like any other state. It's not a state admitted to the union, but it's got its three branches of government. There's a lot of litigation between the federal government and the state government, and there's no reason why litigants shouldn't get in Puerto Rico the benefits of an Article III court. And that's why the court was created. So for the purpose of the judicial branch, federal and state judiciary, Puerto Rico is just like any other state. But in so far as the legislative branch, in so far as the right to vote for president and vice president, for example, I was not able to vote in this election. I had previously voted in Massachusetts when I lived there twice. One time I was living in DC. I voted there for president, no congressmen or senators there. But in Puerto Rico, I moved back to Puerto Rico, I can't vote for president. I have a constitutional impediment because it's not a state. There's no electoral college. Interesting. We're going to take a short break, but we're going to come back to that issue because I think that's a very important issue that you do pay taxes, federal taxes in Puerto Rico, but you cannot vote for president. Well, I pay federal taxes. Not all people pay federal taxes. So that's another interesting issue. Okay. All right. Very good. So we're going to take a short break right now, and we'll be back in just a few minutes to continue our discussion with Judge Gustavo Yelpi from Puerto Rico. Thank you. Thank you. Aloha. We're back to continue our discussion with Judge Gustavo Yelpi from the district of Puerto Rico, the federal court there. And we were just talking about the fact that people in Puerto Rico do not get the right to vote for the United States president, although when Judge Yelpi was residing in Massachusetts, he did get to vote for the United States president. So I really wanted to follow up on that. I mean, how does that work? I don't understand how you could vote for the president when you were in Massachusetts, but you couldn't vote for the president when you were Puerto Rico. I'm a U.S. citizen by birth, but I was born in Puerto Rico. I moved to Massachusetts while I studied. I was there all those years in the late 80s and 90s. So I was able to vote for president because I was residing there. I had an apartment, so I had a license so I could vote there. I didn't vote in Puerto Rico, of course. But then when I go back to Puerto Rico, because it's not a state, it does not have an electoral college, I lost that right to vote. Interestingly, when I was nominated by President Bush, I was confirmed by the Senate unanimously and interestingly, President Obama was a senator, so when they called the roll vote, he voted to confirm me. So, but it's interesting. I could not vote for senators or congressmen or, you know, not the senators who confirmed me or nor for the president who confirmed me. So that's quite an irony. At the same time, as an article three federal judge, for example, the president were to enact any, you know, enforce any legislation or I could rule that some legislation isn't constitutional, which I haven't ruled. It's never happened. But one of my predecessors many years ago enjoined the president of the United States. That's when Jimmy Carter was president. He enjoined him twice. He has that power, but he could never vote for the president. So it's one of these ironies that you get in living for a territory. Well, what about like, for instance, Guam, are people in Guam, U.S. citizens? Oh, they're U.S. The only place where folks were born within the United States territories or not U.S. citizens is American Samoa. They're considered nationals. They're not citizens. They owe allegiance to the United States, but they don't have the cloak of citizenship. And that's kind of one of these interesting judge made rules from the Supreme Court early part of the century. Puerto Rican residents before Congress in 1970, 17 granted citizenship to people in Puerto Rico were also U.S. nationals. They're not citizens of any other nation, but they're not citizens of the United States or national. So it's one of the something you had mentioned was interesting, whether in Puerto Rico individuals pay personal federal income tax. You do pay, of course, Medicare, Social Security tax, just like any citizen of any state, import and export taxes are paid federally. If I have federal income, I, as a federal judge, I have to pay federal income tax or anybody who has a contract with the United States government or federal agency or, you know, commodity taxes or anything. Interesting, Puerto Rico, maybe four or five years ago, but the statistic I had generated more federal revenue from taxes, even though most people, because of the poverty level also, and they don't have federal income, they don't pay federal taxes. Puerto Rico made more, I think, more than one state and almost as much as two other states. So it still generates money for the U.S. Treasury. Well, I noticed another thing that you've mentioned before, too, is that you have a very high percentage of your population that enlists in the United States military. Yeah, it's one of the highest per capita jurisdictions. I think Samoa and Guam are pretty high, although they're much smaller jurisdictions. So the numbers are looking even higher, but it's a very big number. We have a lot of people in the armed forces. Those individuals who move back to Puerto Rico, they can never vote for their commander chief either. So one of those ironies from living in the territory. So another thing I want to ask you about, which I thought was similar to Hawaii, is that you had an island in Puerto Rico that the U.S. Navy was using for bombing practice. Yeah, there were two islands. Originally it was Culebra. Culebra means snake and the other island is Vieques. It's a small island. People actually live there, but Vieques had maybe I think like a third of the island or half the island. And the Navy is no longer doing bombing practices there. It's moved out of there. So people moved in? Well, people have moved in. There's tourism. I haven't been there for a long time. The economy, it's very bad, just like in other parts of Puerto Rico. Tourism, there's times when it's high, times when it's low. But in terms of the place where they were actually doing bombing practice, is that livable? Because here we have Cajolave that they use for bombing practice, but we're not, nobody's able to. I'm not the super environmental expert. I've seen parts of the Navy base have been turned back to the government of Puerto Rico. Again, I'm not an expert on environmental matters, but I think the bombing there took so long. I don't think there's been a mega cleanup there. But again, don't take my word for granted, but I don't think there's been perhaps some monies given to Commonwealth for, you know, but I don't know what's the situation there exactly. And there haven't been many issues after the Navy left out. At least no lawsuits for cleanup so far. So far. So I wanted to talk a little bit about the Federal Bar Association as well, because I was president, as you know, of the Hawaii chapter here of the Federal Bar Association, and you were president of the National. I was national president. And before that in 2000, I was president of the Puerto Rico chapter. Okay. So maybe you could just tell us, you know, kinds of some of the things that you were doing while you were president. And, you know, maybe you could tell us a little bit about the Federal Lawyer Magazine, which I know you've written for before. And I want to make sure that we save a little bit of time to talk about Panama as well. Okay. Well, the Federal Bar Association is a national association. Its members are in large majority, federal practitioners and federal judges. The purpose of the association is to promote the rule of law, strengthen federal relationships between the bar and bench, and to promote academic discussion of issues that are going on at the national level, which impact the federal practitioner and the federal courts. For example, the year before I was president, there was a sequestration issue and the Federal Bar lobbied and obviously the judges who were there, we can't lobby, we're ethically precluded. But the other members of the Bar Association and the board and its representatives go before the Congress and explain how this was affecting the courts, so that the courts needed to be open to carry out justice. And there's civil criminal cases moving on. Other things like, for example, when I was president three years ago, it was the 50th anniversary of the Civil Rights Act and the Criminal Justice Act, which is the law that guarantees that everybody charged in federal court who cannot afford an attorney will get an attorney of quality to represent him and creates a federal public defender's office. So I went on sort of like a national tour and I went to different locations and we would speak about the importance of the Criminal Justice Act, the Civil Rights Act, and so forth. I've also lectured through the Federal Bar in different chapters. I've been here in Hawaii, Alaska, in Massachusetts, Chicago, I think Orlando, in Puerto Rico, talked about the situation about the territories of the United States. And the Federal Bar promotes that sort of discussion, which is more academic in purpose. Right now, the current president is magistrate Judge Michael Newman from the United States District Court in the Southern District of Ohio. And his idea for this year is to promote civics throughout, you know, so he's here in Hawaii. Actually, the Federal Bar Association Hawaii chapter conference will take place tomorrow. And we're both going to be in a panel. And it's to engage the bar and the bench and promote the rule of law. And yes, and well, you have written about the insular cases and some issues. There's a magazine. It's a very good. Those are not members of the Federal Bar since nobody from Hawaii practices before me. I can encourage you to join. There might be still space to go to the conference tomorrow. I'm not going to be talking about the insular cases. I'm going to be talking about the amendments to the rules of civil procedure. But it's got a magazine called the Federal Lawyer. It's always open for attorneys or judges to send articles. It's not law review articles. They're not like 100, 200 pages long. They're usually four or five page articles. One of the big issues we had when I was president, along with Michael Newman, Judge Newman, was to have a special issue dedicated to the role of magistrate judges and the importance of magistrate judges in the federal courts. Magistrate judges are judges. They're not appointed for life. They're appointed by the court for a term of years. But they work very hard for the court. And without them, we could not do our business. So they really help us. And that was very important for me to get that message out. And that's the sort of thing the Federal Bar does. So let's just take the last few minutes. We have to return to those absolutely fascinating insular cases and the differential treatment of the territories. And I know that you recently wrote an article about the Panama Canal and how the United States treated the Panama Canal zone as part of its territories and the different treatment there. So I would like you could give us just a brief review of what happened. Yeah, well, it was very interesting because, and I became very interested. I happened to go to Panama over the summer for a basketball tournament, which was about for 10 days. And in that time, I knew there had been a federal court there. So they will have the embassy folks take me down there. I took some photographs. And I researched. I got some, read a lot of history. And it was very interesting because the canal zone from 1904 to 1979, when the treaty was signed to give it back, was a U.S. territory in the middle of Panama. It's just imagine having, you know, the middle of Hawaii become a federal territory and Hawaii being a kingdom. And all of a sudden, you know, just imagine that the center of Hawaii was federal territory and Hawaii still a nation, independent nation. And that's what happened in Panama. There was a military base. Obviously, the United States under President Roosevelt constructed the canal. The interest of President Roosevelt was to connect the Atlantic and the Pacific because obviously its fleet could go through there. The United States could have naval supremacy. And that was one of the important issues like whoever had control that canal would have control of the globe. So it was very interesting. And the United States had that territory for close to 60, 70 years. Also, the United States has a former territory was the Philippines. And those are the two territories which the United States eventually Philippines became an independent nation. And the canal zone was returned to the nation of Panama, the Republic of Panama. But aside from that, all the other territories, what I saw done in the article I wrote, that was one of my last articles, was to contrast all the other territories that ties between the territories and the United States government have strengthened. In those, for example, in the canal zone, the people born there, some were citizens like President, well, Senator McCain. But that was one of the issues when he was president. But there were issues regarding citizenship. And you have to be a citizen, a child of at least one American parent to be a citizen. And the rules that in every state apply, when we're born, we're citizens or what constitutional rights apply or not in the territories, they're very different. And it gives the Congress flexibility, you know, in the case of the Philippines, to basically de-annex the Philippines and let them become an independent country. In the case of Panama, return it to another nation. And I guess in the case of Puerto Rico, Virgin Islands, Guam, Marion Islands, there's a more permanent relationship moving on forward. And again, none of these in Panama, there was a big movement to return Panama also to the nation. Philippines also, they really didn't want to become part of the United States. In the other island territories, in Puerto Rico, we have a statehood and a Commonwealth party, there are the majority parties, but if you put them together, it's basically a very large number of, you know, 80, 90 percent, close to 90 percent of the folks who want some permanent relationship with the United States, regardless of how the situation is. So as to these territories, the Congress continues to legislate, work with them. We've seen promesa, you know, we'll see what happens. I assume at some point it's only been enforced for the last two months, I believe, the oversight board has already started acting. There may be cases before the federal court, before the Supreme Court, and again, maybe next year, the following year, I can come and give a synopsis of those. Who knows, I might end up having one of those before me and then it will go up on appeal. So do you have an independence movement in Puerto Rico? There is an independence movement. The votes in this last election were not enough for the party to rein in as a party, so they have to re-inscribe the party. This has been happening for the last four or five electoral periods. So they did get a seat in the Senate and a seat in the local house, but as a party, they did not garnish enough votes. And interesting this year, we've never had that before. There were like two independent candidates and one got, you know, I think, I don't have the exact numbers, but one got, I think, 160, 170,000 votes and it took a lot out of the statehood and the Commonwealth Party. How exactly everybody can argue one way or another, but I think also there's electors who, you know, looked at independent people who are not involved in status politics, so that might be one, you know, that looked at social issues. So it's, again, I'm not a sociologist or a politician, so I can't explain that phenomenon, but it was very interesting in this election because I, you know, I don't think anybody figured, except for her, that she was going to get so many votes in. And she basically, like President-elect Trump, was using social media to get out to the younger people, to a lot of people. So it's going to be interesting, both in the mainland and even in Puerto Rico and I think in the other states, how elections from now on are going to be carried. So that's part of the democracy, I guess. Well, thank you very much. Well, my pleasure. I'm just happy for coming and sharing a valuable time with you. With my limited knowledge of Hawaiian language, but I know Mahalo Nui Loa. Thank you very much. Mahalo Nui Loa to you. Thank you very much. And we hope to see you here in Hawaii again soon. Oh, so do I. So thank you all from Think Tech Hawaii for putting on this show and we hope to see you again soon.