Considering a temporary restraining order blocking new legislation mandating the delegates submit a legal constitution by Oct. 31 and giving it a team of legal advisors Thursday, U.S. District Judge Wilma Lewis asked plaintiffs 17 times what federal law was violated. She never got an answer to her liking.
Lewis did not rule on the temporary restraining order Thursday.
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. [Act 7386]
The Legislature’s action came two years after the U.S. Congress sent back the draft produced by the Fifth V.I. Constitutional Convention in 2009, asking for changes to nine areas where it conflicted with the U.S. Constitution and federal law. Several delegates have said the convention has not acted to date because it has not had sufficient funding.
Fifth Constitutional Convention delegates Adelbert Bryan and Mary Moorhead filed suit in U.S. District Court on Sept. 28 asking for a restraining order against the new law taking effect, arguing that it violated federal law by usurping the Fifth Constitutional Convention’s power. [Bert Bryan Lawsuit]
Fifth Constitutional Convention Vice President Lawrence Sewer, represented by attorney Yohana Manning, asked the court to allow the convention to join Bryan and Moorhead’s case.
Lewis took statements and heard arguments from all parties and would-be parties in the lawsuit, but did not rule on any of the motions or arguments that evening.
Bryan and Moorhead argue in the complaint that the federal law giving the Legislature the power to create constitutional conventions (U.S. public law 94-584, as amended by Senate Resolution 33 in 2010) "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.
In court Thursday, Lewis said the threshold question was whether or not there was a legal justification for federal court to intervene in a dispute about two local laws – the law creating the Fifth Constitutional Convention and the new law adding legal advisors and giving an Oct. 31 deadline. She said there needed to be a direct conflict with federal law in order for federal law to preempt the local law and allow the court to intervene.
"As plaintiff, you have to establish there is a conflict, I would like you to direct me to where there is a conflict," Lewis said to Bryan. Bryan said Senate Resolution 33, passed in 2010, created the conflict with local law.
That resolution states 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."
Lewis pressed further, saying, "My point is, where in that resolution is there a conflict with the law creating the Fifth Revision Convention?"
Bryan responded, "You will not find any language here authorizing the Legislature to add delegates."
Lewis asked, "Where in the Joint Resolution is there language that prohibits the Legislature from doing so?"
Bryan then cited the language urging the convention to reconvene.
"But it does not require the Fifth Constitutional Convention to reconvene; it says "urges," correct?" Lewis pressed.
Bryan began saying the convention was insufficiently funded, whereupon Lewis steered the question back to the language of the Joint Resolution, saying, "There has to be a direction, an affirmative command from Congress that is in conflict with state law. ‘We urge,’ – that is not a directive," Lewis said.
Later Manning argued the V.I. Legislature lacked authority to pass the new law. Lewis read out the relevant part of Public Law 94-584, which says 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." She asked where that law placed a limit on the Legislature’s power to create conventions, saying it cannot make changes.
"That one word "call," Manning said, suggesting the Legislature can only call conventions, nothing else.
Lewis asked if Manning believes the Legislature can "only start from scratch."
"I understand that is how you would like it to be but I ask again,” Lewis said. “Where in the law does it say it must be that way? Which law are you pointing to that would preempt, under federal supremacy?" Lewis asked.
After a long pause and some moving of papers, Manning asked for a five-minute recess.
When the recess was over, Manning argued that Congress granted the territory only the power to initiate a convention, retaining power to alter the convention to itself. "Congress did not give them the power to impact the process once that convention has been called," Manning said, suggesting Congress kept that power to itself. "Congress is saying, ‘We give you the power to create a convention but once you create it, that power belongs to us,’" he said.
On the government’s side of the case, Assistant Attorney General Erika Scott argued
the plaintiff’s lacked standing to sue, because when the Legislature created the Fifth Constitutional Convention and defined its powers, it did not give it the power to sue or be sued. She cited a 2009 V.I. Superior Court case that found the convention could not sue to force Gov. John deJongh Jr. to forward the draft constitution to Congress. That same case allowed Moorhead and Convention President Gerard "Luz" James to sue as taxpaying residents, citing local law. Scott argued that the local law allowing taxpayers to sue did not apply in federal court.
Both Scott and Russell argued there was no federal law in play and the plaintiffs were trying to use the court to stop legislation they personally did not like.
"When we make a law, people may disagree but the preemption issue is about whether we have the right to make a law," Russell said. "The issue really is whether or not the Joint Resolution prevented us from weighing in," he said, arguing that its language urging the convention to reconvene did not prevent them. Rather, he argued, the new legislation helped to fulfill Congress’ intent that the delegates address its concerns and produce a constitution.
On questioning, Russell said the legal advisors added by the new Legislation would present the 30 elected delegates with a proposed revised draft constitution that addressed the concerns of Congress. The delegates could then vote for or against the proposal; change it around as they wished, or add other things not envisioned by the legal advisors.
"The delegates retain absolute control," Russell said.
"You say the legal team does not have a vote?" Lewis asked. "No, they do not have a vote. I think if you see the references to delegates and quorums it is clear that voting is by the delegates. The legal team is simply there to assist," Russell responded.
After hearing all the arguments, Lewis said the court "will rule as promptly as it possibly can," moments before adjourning a little after 7 p.m.
