With an Oct. 31 deadline to amend its draft V.I. Constitution to comport with federal law looming, the Fifth V.I. Constitutional Convention is working towards that goal but rejects the validity of the law setting the deadline, according to Convention Vice President Lawrence Sewer.
The Constitutional Convention completed the draft constitution in 2009. Gov. John deJongh Jr. initially declined to forward the document to President Barack Obama, citing constitutional and other problems with several passages.
The V.I. Superior Court concluded deJongh did not have the latitude to decide whether or not to send the document on and ordered him to forward the draft.
Since then, Obama forwarded it to Congress, along with a Department of Justice analysis raising nine areas of concern, including questions about maritime boundaries, tax breaks aimed at native Virgin Islanders and other provisions.
The most controversial sections said only native-born Virgin Islanders can run for governor or lieutenant governor and that “ancestral virgin islanders” (those who had family in the territory in or prior to 1932) would be exempt from property tax.
In 2010 the U.S. Senate passed a joint resolution [Senate Resolution 33] urging the Fifth Virgin Islands Constitutional Convention to reconvene and change its draft constitution to address the legal and constitutional concerns raised by the U.S Department of Justice. The Department of the Interior has promised some funding for the process, but not as much as some on the convention want. The Fifth V.I. Constitutional Convention has declined to act at all over the past two years.
In September the V.I. Legislature passed legislation giving the Fifth V.I. Constitutional Convention free use of legislative chambers throughout the territory, guidance from five appointed attorneys, and an Oct. 31 deadline to produce a final, legally sufficient document. The act calls the combination of 30 existing elected delegates and five new legal advisors the Fifth Revision Convention.
Reached Monday afternoon, Sewer said he had been meeting with other members of the convention since Sept. 20, and had been making plans "as to how we are to approach the nine issue areas." Members had been working out "a matrix" of possible language changes, alongside the current language, with help from legal counsel, he said.
Sewer described his actions as "informal," saying he was only acting until Convention President Gerald Luz A. James II returns to the territory. James is off -island on a family matter, Sewer said.
"We are working informally so when the time comes for the formal reconvening of the convention, we have all the things in place to actually vote on the document and send it out," Sewer said.
At the same time, Sewer said the convention’s executive committee voted Monday to reject the mandates in the new local law, arguing they violate federal law. He sent out a statement on behalf of the convention Monday afternoon, saying "the executive committee stated that the act violated federal law by giving power to the non-elected Fifth Revision Convention to prepare modifications to the proposed constitution of the Virgin Islands."
Sewer’s statement reiterated that convention delegates were working on revisions and had scheduled a telephone conference call of all the delegates. But Sewer also said the convention contends that the federal law allowing the territory to write a constitution, as amended, requires a constitutional convention to write the document, and that Senate Resolution 33 specifically directs the current constitutional convention, and no one else, to make the required changes.
"Nowhere in the federal law does it give the USVI Senate president the power and authority to circumvent the constitutional convention," Sewer said in the statement. "By introducing this bill, Senate President Russell is ultimately telling voters that their will is no longer relevant, because his legislation attempts to devalue the existing constitutional convention of elected delegates in favor of a hand-picked committee."
Sewer said, "The most offensive part of the act is that it only empowers the five appointed lawyers to make suggestions and recommendations for revisions to the proposed constitution, thereby stripping the elected delegates of their right and authority to recommend changes to the document."
Sewer’s statement about the views of the executive committee echoes arguments made by convention delegates Adelbert Bryan and Mary Moorhead in a lawsuit filed in U.S. District Court Sept. 28. And the executive committee members "overwhelmingly expressed their support" for the lawsuit, according to Sewer.
That lawsuit asks for a temporary restraining order to prevent the law from taking effect. Bryan and Moorhead argue in the complaint that U.S. public law 94-584, as amended by Senate Resolution 33, "only authorizes a constitutional convention to revise the proposed constitution and does not give the Virgin Islands the authority to create a body that is not a constitutional convention to draft or revise a constitution and propose it."
It declares "The Fifth Revision Convention is not a reconvening constitutional convention," and that the V.I. law is a clear violation of the federal law.
Public Law 94-584 says in relevant part that the "Legislatures of the Virgin Islands and Guam, respectively, are authorized to call constitutional conventions to draft, within the existing territorial-federal relationship, constitutions for the local self-government of the people of the Virgin Islands and Guam."
The law places no limitations on when or how the Legislature may call constitutional conventions, or what rules it may impose upon them, stating only that the Legislature has this power.
Senate Resolution 33 states that the Senate "urges the Fifth Constitutional Convention of the United States Virgin Islands to reconvene for the purpose of reconsidering and revising the proposed constitution in response to the view of the executive branch of the Federal Government." It makes no mention of exclusivity or of changing the federal law giving the Legislature the power to create and convene constitutional conventions.
The lawsuit and the statement from the convention’s executive committee both argue the new law usurps the convention by placing all power in the five legal advisors and by giving these five a vote on the convention.
The text of the act is silent as to whether the five legal advisors have a vote. It distinguishes between the legal advisors and elected delegates, saying a quorum shall consist of 21 delegates. But it says all decisions will be "by affirmative vote of a majority of those voting," without expressly stating whether the legal advisors have a vote or not.
During Senate hearings, Sen. Louis Patrick Hill and other supporters of the legislation asserted the legislation did not give the advisors a vote.
"The fact of the matter is they are not being supplanted but guided,” Hill said during Senate session Sept. 21. “In the final analysis, they are the ones who are going to vote, not the legal advisors.”
There will be a hearing Wednesday at 3 p.m.in U.S. District Court on St. Croix before U.S. District Judge Wilma Lewis to decide whether or not to approve Bryan and Moorhead’s request for a temporary restraining order to prevent the implementation of Act 7386 and convening of the Fifth Revision Convention.