dissenting
The majority opinion in the instant matter has much to commend it, as it presents a detañed and masterful analysis of an extremely complex area of law. Indeed, I concur with the majority's conclusion (1) that the AppeUate Division of the District Court of the Virgin Islands possessed the authority to issue a writ of mandamus against the Territorial Court of the Virgin Islands; and (2) that Territorial Court Rule 128(b) violates the Revised Organic Act (ROA).
I part company with the majority opinion, however, with respect to its bottom line: its overly-ingenious interpretation that Federal Rule of Criminal Procedure 48(a) is nothing more than a "Sunshine" provision — a panacea that can provide both the courts and the general public with the reasons behind the United States Attorney's decision to dismiss pending charges against a particular defendant.1 Contrary to the majority, in my view, Riñe 48(a) is a substantive rule that alters the common law in order to allow the district courts to prevent a prosecutor from dismissing criminal charges without the courts' consent.
As a result, Rule 48(a) cannot be imported into the rules of the Territorial Court through its Rule 7 because only procedural — and not substantive — rules may be promulgated by the Territorial Court. Accordingly, I would hold that the Attorney General of the Virgin Islands is correct in his interpretation of Rule 48(a) as a substantive rule and that accordingly, Richards's charge must be dismissed without court interference. It is for this reason that I respectfuñy dissent.
I
The ROA empowers "the courts established by local law" (i.e., the Territorial Court of the Virgin Islands) to prescribe their own *495"rules governing practice and procedure." 48 U.S.C. § 1611(c). Purporting to use this statutory provision as authority the Territorial Court promulgated a rule patterned after Rule 48(a) — its Rule 128(b), which states that
no criminal case filed in the court. . . shall be dismissed upon motion by any party except upon a determination by the Court that the dismissal is in good faith, in the public interest, and in the interest of justice.
The Appellate Division of the District Court of the Virgin Islands held this rule to be void. See In re Richards, 40 V.I. 161, 52 F. Supp. 2d 522, 528-29 (D.V.I. 1999). That court also held that Rule 48(a), which states that
the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate,
could not be applied in the Territorial Courts of the Virgin Islands, notwithstanding the effect of Territorial Court Rule 7.2 52 F. Supp. 2d at 529-30. The Appellate Division premised this holding on the fact that, pursuant to the ROA, any rule promulgated or adopted by the Territorial Court, including Rule 7, must be procedural, and not substantive, in nature. See id. at 528-30. The majority in the instant case, as opposed to my view, holds that Rule 48(a) is not a substantive rule, although it admits that the rule "is adorned with unmistakable substantive trappings." Majority Op., at 21. In my opinion, there is no difference between Rule 128(b), which even the majority rejects as being in violation of the ROA, and Rule 48(a). The contents of both rules are substantively identical and obviously, therefore, if one rule is ineffective to condition a prosecutor's recommendation of dismissal, then so too is the other. Hence, my position in this regard is straight-forward and rather simple: neither Rule 128(b) nor Rule 48(a) is effective in the courts of the Virgin Islands because both are substantive rules.
*496A
The difference between rules that are "substantive" and cannot be promulgated or adopted in the Virgin Islands and those that merely regulate "practice and procedure" must initially be explored. The starting point for this inquiry must be the Supreme Court's watershed decision in Sibbach & Co. v. Wilson, 312 U.S. 1, 85 L. Ed. 479, 61 S. Ct. 422 (1941).3 In Sibbach, the Court held that "the test must be whether a rule really regulates procedure[ ] — the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them." Id. at 14.
As numerous commentators have indicated, however, the Sibbach test alone is of little help in determining whether a given rule is procedural or substantive in nature. See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction, § 4509, at 264 (stating that the Sibbach formula "is no test at all — in a sense, it is little more than the statement that a matter is procedural if, by revelation, it is procedural"). As a result, in order to derive a proper standard to delineate between procedure and substance, something must be added to the Sibbach Court's analysis. Hart and Wechsler, the oft-cited civil procedure scholars, have opined that substantive rules are those that "characteristically and reasonably affect people's conduct at the stage of primary private activity." Hart & Wechsler, The Federal Courts & the Federal System 678 (1953); see also Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 Duke L.J. 281. With this *497understanding of the procedure vs. substance "dichotomy," I am satisfied that both Rule 128(b) and Rule 48(a) are substantive rules, and therefore violate the provisions of the ROA.
B
As the majority acknowledges, both Rule 128(b) and Rule 48(a) implicate decisions that the common law exclusively granted (and still grants, in many jurisdictions) to the prosecutor — decisions regarding whether to dismiss pending criminal charges against a particular defendant. This prosecutorial right, known as nolle prosequi, was absolute at common law — no entity, including the judiciary, could challenge the prosecutor's decision to end a criminal proceeding. See Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L. Ed. 196 (1868) ("Under the rules of the common law it must be conceded that the prosecuting party may relinquish his suit at any stage of it, and withdraw from court at his option . . . ."); 3 Charles E. Torcia, Wharton's Criminal Procedure § 445, at 926 (13th ed. 1991). Notwithstanding this common law principle, both Rule 128(b) and Rule 48(a) restrict a prosecutor's right to dismiss criminal charges.
The nolle prosequi tradition goes to the very heart of the prosecutorial role and function. As such, any restriction on the prosecutor's right of nolle prosequi would necessarily enter the substantive arena, and thus not be available for regulation by the Territorial Court. Given that such interference with a prosecutor's discretion "transfers discretion that was once wielded by the local prosecutor into judicial hands," Majority Op., at 17-18 (emphasis added), it is obvious that both rules must be deemed substantive.
The majority, which holds that Rule 128(b) is substantive, but that Rule 48(a), despite its "substantive trappings," Majority Op., at 21, is not, gives an unwarranted life to Rule 48(a) in the Virgin Islands. It does so by grafting onto Rule 48(a)'s substantive provisions a "Sunshine" gloss that runs counter to Rule 48(a)'s history and that nowhere appears in Rule 48(a)'s jurisprudence. It is not surprising, therefore, that I find the Appellate Division's analysis persuasive in finding that Rule 48(a) cannot be applied in the Virgin Islands.
*498i.
The majority first attempts to justify its inconsistency in characterizing identical rules differently by explaining that Rule 128(b), unlike Rule 48(a), contains specific standards. See Majority Op., at 23-24. Those standard s (i.e., good faith, public interest, and the interest of justice) inform a judge's decision whether to grant a prosecutor's motion to dismiss pending charges. Terming such principles "substantive standards," the majority reasons that Rule 48(a)'s lack of such standards is an indication that the courts' "role in granting leave to dismiss under 48(a) [is] a limited one," Id. at 21, and as such, does not wrongfully venture beyond the procedural domain.
Building upon this purported lack of standards, the majority then fashions its own interpretation of Rule 48(a) — the "Sunshine" principle to which I alluded earlier. More specifically, the majority opines that Rule 48(a)"ensures that [the courts'] processes are not being abused," and allows the public to gain an insight into "the processes through which prosecutors make decisions about whom to prosecute." Id. at 26.
As an initial matter, although the majority is correct that the express terms of Rule 48(a) do not indicate that a judge's decision to grant or deny a prosecutorial motion to dismiss pending criminal charges are subject to the standards of good faith, public interest and the interest of justice, those courts that have sought to interpret Rule 48(a) have imputed those standards to the rule itself. The lone Supreme Court discussion of Rule 48(a), United States v. Rinaldi, 434 U.S. 22, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977) (per curiam), states that Rule 48(a) was primarily intended to protect against prosecutorial harassment, but that a court would likely be within its discretion in rejecting a Rule 48(a) motion where dismissal was not in the public interest. See id. at 29 n.15. Picking up on this theme, the Fourth Circuit in United States v. Smith, 55 F.3d 157 (4th Cir. 1995), held that "the disposition of a government's motion to dismiss an indictment should be decided by determining whether the prosecutor acted in good faith at the time he moved for dismissal." Id. at 159. The Smith court cited a "prosecutor's acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled" as examples of *499prosecutorial misconduct that would warrant denial of a Rule 48(a) motion. See id.;
Perhaps the most extensive treatment of Rule 48(a) can be found in the Fifth Circuit's opinion in United States v. Cowan, 524 F.2d 504 (5th Cir. 1975). In Cowen, the court held that Rule 48(a) was a "manifest" attempt on the part of the Supreme Court to vest "in the courts the power and the duty to exercise a discretion for the protection of the public interest." Id. at 511. Although the Fifth Circuit believed that such discretion was extremely limited, in that the prosecutorial decision "should not be judicially disturbed unless clearly contrary to the public interest," Rule 48(a), in its view, did provide for "a discretion broad enough to protect the public interest in the fair administration of justice." Id. at 512.
As such, each of the so-called "substantive standards" identified by the majority as contained within Rule 128(b) and ostensibly missing from the provisions of Rule 48(a) have been considered part and parcel of Rule 48(a)'s "leave of court" requirement. Rule 48(a) thus vests the district judge with decisionmaking power as to whether pending criminal charges against a defendant should be dismissed pursuant to the standards noted above — specific standards that prior to the promulgation of Rule 48(a) were weighed solely within the province of the prosecutor himself.
ii.
The majority's self-avowed purpose that it attributes to Rule 48(a) - to air the rationale(s) behind the sought-for dismissal of a criminal proceeding - suffers from serious flaws. See Majority Op., at 25-27. First, such an interpretation is belied by the very history behind the Supreme Court's promulgation of the rule. According to the late Professor Lester Orfield,4 the Advisory Committee's proposed version of what now appears as Rule 48(a) did not contain the phrase "with leave of court" that presently appears in the rule. Rather, the original rule provided that in order to obtain a dismissal of pending criminal charges, a prosecutor would be required to provide the district court "with a statement of the *500reasons therefor." See Mark S. Rhodes, Orfield's Criminal Procedure Under the Federal Rules § 48:11, at 251 (2d ed. 1987); see also 4 Drafting History of the Federal Rules of Criminal Procedure 178 (Madeline J. Wilken & Nicholas Triffen, eds.) (1991) (reprinting the original version of Rule 48(a) that the Advisory Committee transmitted to the Supreme Court). Before the Supreme Court promulgated Rule 48(a) in its present form, however, it deleted the requirement for a "statement of the reasons therefor," and replaced that phrase with the language currently found in the rule — "with leave of court." Id.; see also United States v. Hamm, 659 F.2d 624, 631 n.23 (5th Cir. Unit A 1981) (stating that the initial version of Rule 48(a) drew sharp criticism from prosecutors, and therefore was modified to its present form).
If Rule 48(a)'s language had remained unchanged from its original Advisory Committee format, the majority would have more license for its "Sunshine" interpretation of the rule. The fact that the Supreme Court eliminated express language that would support this "Sunshine" purpose for Rule 48(a), however, is fatal to the majority's creative attempt to distinguish or differentiate between Rule 48(a) and Rule 128(b). Indeed, as Professor Orfíeld wrote, "a dismissal [of prosecution] might [now] be filed without any statement of reasons." Id.
The majority therefore is plainly incorrect is its novel assertion that the Supreme Court intended Rule 48(a) as a "Sunshine" rule in order to assist the court system and the public to understand a prosecutor's reasons for seeking a dismissal of a criminal proceeding. It inexorably follows that because Rule 128(b) and Rule 48(a) are spun from an identical cloth, if Rule 128(b) is void because it is substantive, then so too is Rule 48(a).
C
Moreover, I also believe that the majority's "Sunshine" interpretation of Rule 48(a) is not as innocuous as my colleagues may in fact believe. The majority claims that "the substantive reach of the rule [48(a)] appears to be effectively curtailed' because the court cannot compel a prosecutor to proceed if the motion to dismiss were denied. Majority Op., at 21. Indeed, the majority states that interpreting Rule 48(a) as a 'Sunshine' rule "is sufficiently proce*501dural that it does not run afoul of the dictates of the ROA," and that "any doubt in this regard would seem to be resolved by the fact that . . . Judge Swan had no apparent power to force the Attorney General to proceed with a prosecution." Id. at 36.1 believe that the majority's theoretical analysis misses a crucial point with respect to the procedure/substance dichotomy.
As stated above, the very essence of the common law right of nolle prosequi was that the prosecutor enjoyed absolute control over the course of a specific prosecution. Although most of the preceding discussion is framed in terms of the ultimate decision as to whether to prosecute a particular offender at all, included within this broad power are a multitude of prosecutorial decisions bearing on the institution and maintenance of criminal proceedings. As an example, once a prosecutor is confronted with alleged wrongdoing on the part of a purported defendant, the prosecutor must determine under which statute(s) to seek criminal sanctions, and the proper evidence to introduce in order to obtain a conviction. Because the majority's "Sunshine" interpretation severely impacts on such decisions — those that go to the very core of the prosecutorial function — Rule 48(a) has a much more significant reach than the majority envisages.
The facts of the instant matter demonstrate this problem. The Government of the Virgin Islands initially filed — via an information — a felony rape charge against Richards in the Territorial Court, and then amended that information to include a misdemeanor charge. The Government thereafter agreed to allow Richards to plead guilty to the misdemeanor charge in return for dismissal of the felony charge. Judge Swan refused to allow the Government to dismiss the felony charge. After this initial refusal, however, Judge Swan scheduled a hearing to determine whether such a dismissal was consistent with the "public interest."
This "public interest" hearing would have been no different from the novel "Sunshine" hearing now advocated by the majority. Indeed, because of the prospect of such a hearing, the Government disclosed that it sought a dismissal of the felony charges because the evidence did not support a felony conviction. The government also claimed that the primary witnesses against Richards (the alleged victim and her mother) would not testify. With this *502information revealed, it would surprise me if Richards were to continue to plead guilty to the misdemeanor charge, particularly because he now has been informed that the two main witnesses who could implicate him will not provide any assistance to the Government in its prosecution.
As a result, Judge Swan's "public interest" hearing, much like the "Sunshine" hearing the majority now urges upon us, essentially forced the Government to play out its hand and disclose information that it normally would seek to keep confidential.5 Indeed, the simple knowledge on the part of the prosecutor that such a hearing would be held if he were to seek dismissal of a defendant's charges could not help but impact the manner by which the prosecutor would conduct the course of the criminal litigation, hi other words, the allegedly innocuous "Sunshine" hearing could irreparably impair day-to-day prosecutorial decisionmaking.
The ability to hold such a hearing under the auspices of Rule 48(a) therefore provides a district court judge with the opportunity to commandeer the entire prosecutorial process - a process that the common law provided to the prosecutor exclusively through the nolle prosequi doctrine. Given that such consequences reach far beyond the courtroom and intrusively into each and every prosecutorial decision, I do not understand how the majority's "Sunshine" interpretation of Rule 48(a) can be deemed either harmless or procedural.
!!
I have gone to great lengths to point out that in an effort to save Rule 48(a) from a substantive characterization, the majority not only errs, but is inconsistent in its analysis of two identical rules — Rule 128(b) of the Territorial Court of the Virgin Islands and Rule 48(a) of the Federal Rules of Criminal Procedure. The majority cannot hold one rule void and still uphold the other. I can understand the majority's desire to have Rule 48(a) provide for a *503district court's oversight of a prosecutor's decision to dismiss pending criminal charges. When the adoption of this rule goes beyond the authority that Congress has given to the Territorial Court of the Virgin Islands, however, it is neither appropriate nor wise to finesse its adoption by a subterfuge such as the seemingly benign "Sunshine" gloss that the majority has imparted to Rule 48(a).
The Appellate Division of the District Court of the Virgin Islands was quite correct in its analysis and in its issuance of a writ of mandamus. Because logic, precedent, history, and reason compel such a result, I would affirm that decision. In doing so, I must respectfully dissent.
nl The majority terms Rule 48(a) "a sunshine provision that exposes the reasons for prosecutorial decisions," Majority Op., at 25, presumably in line with the Government in the Sunshine Act, 5 U.S.C. § 552b, which seeks to open local government meetings for citizen observation.
Territorial Court Rule 7 provides that "the practice and procedure in the Territorial Court shall be governed by the Rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence." Terr. Ct. R. 7.
1 acknowledge that Sibbach and its progeny concern not the ROA, but the Rules Enabling Act (REA), presently codified at 28 U.S.C. § 2072. The REA, quite similar to the ROA, authorizes the Supreme Court of the United States to promulgate rules of practice and procedure for use in the federal courts, so long as such rules do not impair the substantive rights of any litigant. See 28 U.S.C. § 2072. Although the REA is not directly implicated in the instant matter, resort to the jurisprudence emanating from the REA is necessary because of the lack of interpretive guidance concerning the virtually identical provisions of the ROA. Indeed, the majority implicitly recognizes such. Majority Op., at 19 n.5.
Both the majority and I hold that the Supreme Court cannot promulgate substantive rules under the REA. Even though neither party to the present appeal has raised the specific issue of whether Rule 48(a) violates the REA's provisions because it is substantive and not procedural, I suggest that tire propriety of Rule 48(a) with respect to all federal courts be re-examined.
Orfield was a member of the Original Advisory Committee to the Supreme Court with respect to the Federal Rules of Criminal Procedure.
1, of course, am not suggesting that a prosecutor would be entitled to keep exculpatory evidence from disclosure. See, e.g., Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).