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Constitutional Convention Goes Into Illegal Closed Session

Oct. 1, 2008 — In the midst of a heated discussion about stipends, airplane tickets and hotel fares Wednesday, delegates to the Fifth Constitutional Convention decided to switch from a plenary session to an illegal executive session without taking a vote or providing a specific reason for doing so.
Title One, Section 254 of the V.I. Code states that a move into executive session can only happen when the majority "of the entire membership of an agency or subdivision thereof … votes to take such action." But a motion made by Delegate Lois Hassell-Habtes to go into executive session was never voted on or passed by a majority of delegates. Instead, the announcement was made that the convention would move into executive session, and the members of the media, along with the convention's consultants and its executive director, were asked to leave.
The V.I. Code also provides certain instances where a move into executive session is permissible, such as to prevent the disclosure of financial or legal information, trade secrets or confidential information provided by a confidential source. Before leaving the meeting room, a reporter from the V.I. Daily News read this section of the law to the delegates, and asked them to give a reason for the move into executive session.
"You see we just got an extension, and we want to discuss the way in which we're going to continue on," Hassell-Habtes said. Before making the motion, Hassell-Habtes and other delegates were discussing the convention's budget, and how expenses paid out of pocket — such as transportation to and from meetings — were being calculated.
"We're going to talk about everything that you read and more," convention President Gerard Luz James II added in response to the reporter's question. The reporter then said that any executive session called by the delegates would have had to be listed on the meeting's agenda, which it was not.
"An executive session can be called at any moment," James said.
Trying to get his colleagues to be more specific, Delegate Thomas K. Moore once again asked the delegates why the executive session was being called.
"I don't know," James said. "I have to wait and hear what everyone says."
No stenographer was present during Wednesday's plenary session, or in the meeting room while the executive session was going on. The convention's legal counsel was also not present when the motion was made to go into executive session.
Coming back into regular session around 4 p.m., delegates did not formally announce what had been discussed during the hour-long executive session. Instead, Moore came up to the media table and said that no votes had been taken during executive session, and that the delegates had discussed "personal contract matters."
Judicial Committee
It was pretty much smooth sailing Wednesday for Delegate Douglas Capdeville, as delegates voted to adopt most of the draft language proposed by the Judicial Committee — with a few minor changes included. The sticking point for many delegates was whether the chief V.I. Supreme Court justice should be responsible for the administration of the courts.
During several Senate hearings held on the same subject, Chief Justice Rhys S. Hodge has said that giving him oversight over both the Supreme and Superior courts would maintain the unified structure of the territory's judicial system. Two separate administrations would result in additional administrative, accounting, human resources, maintenance, marshal and information-technology personnel that were never before factored into the budget of the judicial branch, he said.
But separate administrations would keep each court in charge of its own day-to-day affairs, Superior Court Judge Darryl Donohue has argued. During a Senate hearing in October, Donohue said the Superior Court would otherwise be run by an administrator who is solely responsible to the chief justice — a system, he said, that "literally usurped all powers and authority of the presiding judge and provided for no input or consideration by the judges of the Superior Court." (See "Judges Disagree About Implications of Court-System Proposal.")
During Wednesday's session, many delegates shared a similar perspective, saying that while the Supreme Court does have the final say on judicial matters, having to go through a separate administrator for issues "such as buying toilet paper" would bog the Superior Court down in extra layers of bureaucracy.
"I do not think it's right to have to go to an administrator to beg for things," Hassell-Habtes said. "The Supreme Court should run it's own day to day affairs, and so should the Superior Court, and that's my opinion on that. The Supreme Court still has oversight in the judicial-review process, but each court would have independent oversight on the daily operations."
A majority of the delegates agreed, a motion allowing the Supreme and Superior courts to be run separately by two administrators passed on a 12-to-10 vote.
Gay Marriage and the Preamble
After a couple hours of discussion, delegates also agreed on a one-page preamble to the Constitution that lays out the history of the Virgin Islands, running from the "extermination" of its "original indigenous peoples" through its sale to the United States and the events leading to the abolishment of slavery in the territory.
The preamble also notes that the Virgin Islands is an unincorporated territory, and that the U.S. Congress has the ultimate say over the civil rights and "political station" of its residents.
The discussion became more heated as delegates explored language banning gay marriage in the territory and defining marriage as a union solely between a man and a woman.
"When you see same-sex marriage in some states, they do that for monetary reasons — it's all about money," said Delegate Wilma Marsh Monsanto. "I am speaking on behalf of the church of these Virgin Islands, and the Christian community is looking forward to having something in the constitution that addresses this. Same-sex marriage is an abomination unto God."
Many delegates spoke out against "legislating morality" in the constitution.
"I was raised in the church — I lived in the church," said Delegate Gerard Emanuel. "I even went to study to become a priest. But I don't want to inject our personal religious philosophy in our constitution. Let us focus on the fundamental principals of government, the legislative, judicial and executive branches, native right — those are the kind of areas I would go ahead and fight for."
The proposed language could also be considered "extremely inflammatory," added Delegate Craig W. Barshinger.
"The way it's written now, it implies that somehow same-sex marriage in an African territory threatens the right to marry and found a family," he said. "We're really showing extreme prejudice to the gay people who comprise 10 percent of the population. I'm totally against this, because it's a condemnation of homosexuals."
Delegates voted to delete the section from the constitution, along with another section entitled "women's right to choose."
A discussion on the composition of the Legislature began around 6 p.m. Wednesday, but delegates couldn't vote on anything because they did not have a quorum at that point. Some also said that the language proposed by Legislative Committee chairman Eugene "Doc" Petersen was not the same as what was proposed in various committee meetings, and that more clarification on the subject was needed.
The convention scheduled two more plenary sessions for Oct. 13 and Oct. 14 on St. Croix.
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