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District Court Rejects Constitutional Convention Challenge

U.S. District Court rejected a request for a temporary restraining order blocking new legislation mandating the 30 delegates of the Fifth Constitutional Convention submit a revised legal constitution by Oct. 31 and giving it a team of legal advisors, in an order issued Friday evening.

Fifth Constitutional Convention delegates Adelbert Bryan and Mary Moorhead filed suit in U.S. District Court 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.

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.

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When hearing the TRO request Wednesday evening, U.S. District Judge Wilma Lewis said the threshold question was whether 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.

Attorney Yohana Manning, arguing on behalf of the Fifth Constitutional Convention, argued federal 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," prohibits the Legislature from amending the law setting up a convention. Manning also argued U.S. Senate Resolution 33, which "urges the Fifth Constitutional Convention to reconvene" was a federal directive for the convention to reconvene that preempted any action by the Legislature

In Friday’s order, Lewis said plaintiffs "have failed to show that either Public Law 94-584 or Joint Resolution 33 requires the Fifth Constitutional Convention to reconvene for the purpose of revising the proposed constitution, or that these laws authorize only the Fifth Constitutional Convention to revise the proposed constitution." She said the law’s provisions incorporating a legal team into the convention and renaming it the "Fifth Revision Convention" are consistent with federal law.

"Plaintiffs have therefore failed to show a likelihood of success on the merits. Because likelihood of success on the merits is a dispositive element, Plaintiffs’ “Emergency Motion for a Temporary Restraining Order” must be denied," Lewis concluded.

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