The V.I. Legislature is holding a special session Tuesday to hear testimony and perhaps decide who is to fill the St. Thomas seat that has remained empty since the other 14 senators were sworn into office in January.
Unlike other U.S. jurisdictions, which have single-member districts or winner-take-all statewide districts, the U.S. Virgin Islands elects 14 of its 15 senators based on who comes in the top 7 places for each of the two districts. The 15th senator is elected at large, on a winner-take-all basis.
The St. Thomas/St. John Board of Elections certified Kevin Rodriquez as a candidate and, after the November 2016, general election, as a winner, after Rodriquez came in sixth to fill the seven St. Thomas-St. John legislative seats.
But in December, the eighth-place candidate, Janelle Sarauw and campaign worker Brigitte Berry, sued in V.I. Superior Court to stop Rodriquez from being seated, arguing that Rodriquez had asserted in court documents filed in 2016 that he was a bona fide resident of Tennessee and therefore could not meet the three-year V.I. residency requirement set by V.I. law.
The V.I. Supreme Court determined that in his bankruptcy petition, Rodriquez swore under penalty of perjury that he lived in Tennessee and had not lived in another state anytime during the preceding three years. It applied the doctrine of “judicial estoppel,” saying that Rodriquez’s claim under oath in one court prevented him from claiming the opposite in another court. The court
Rodriquez filed to have the case moved to federal court. He argued that the Revised Organic Act, the federal law that acts as a constitution for the territory, gives the Legislature final authority over who is qualified to sit. Rodriquez also sued the Legislature, requesting it seat him.
Sarauw, on the other hand, argued the St. Thomas/St. John Board of Election erred and asked the court to direct the board to decertify Rodriquez as a candidate.
While the Senate deferred to the courts, both Rodriquez’s and Sarauw’s suits were eventually dismissed, along with an appeal recently filed by Rodriquez that sought to stay the special election.
Senate President Myron Jackson, on behalf of the V.I. Legislature, filed a motion with the court asking it to dismiss Rodriquez’s complaint. Part of the Legislature’s argument was that, although the Legislature had the power to determine the qualifications of its members, it had put the residency requirement into the law and could not violate the law without inviting more litigation.
In February, U.S. District Court Judge Curtis Gomez dismissed both suits. Gomez’s order cited the V.I. law, which says if “a vacancy occurs in the office of a member of the Legislature, the governor shall call a special election … within 30 days following the day on which the vacancy occurs.” He went on to say it “is entirely within the province of the executive to do so if he chooses.”
Gov. Kenneth Mapp then called a special election. Fourteen candidates filed papers and Sarauw won that election in April. But the results were never certified by the St. Thomas-St. John Board of Elections, whose members said they would not be able to put Sarauw in until Rodriquez was officially taken out, or de-certified. Rodriquez sought to stay the election by filing a suit in District Court, which was also denied, and Rodriquez countered with another appeal to the Third Circuit, which did not weigh in on the previous legal matters, but chose to stay focused on the roles of the Elections Board, the courts and the Legislature in the legal process.
Rodriquez appealed and on June 9, the Third Circuit Court of Appeals placed the decision back in the lap of the Legislature. According to the ruling, under the “plain language” of the Revised Organic Act, once the 32nd Legislature convened, it alone had the authority determine whether Rodriguez had the qualifications necessary to be a member.
“In sum, before the 32nd Legislature convened, the Board of Elections had the authority to review the qualifications of prospective members of the Legislature and because it is not a part of the Legislature or any other branch of the V.I. government, issues of separation of powers did not preclude a court from a viewing in the Board of Elections decisions concerning a candidate’s qualifications,” the ruling said. “But now that the 32nd Legislature has convened, only that body can determine the qualifications of its members and separation of powers principles require a court to decline weighing in on these issues,” the courts ruled.
The next day, the V.I. Democratic Party issued a statement calling for the Legislature to seat Rodriquez.
“We have always held to the position that the matter was under the jurisdiction and authority of the Legislature. The Appellate Court has clearly affirmed this. We are again calling on the entire 32nd Legislature, and in particular on the Democratic Leadership, to immediately administer the oath of office to Senator-elect Kevin Rodriguez,” the party’s statement concluded.
A few days later, on June 15, the Legislature called a special session for Tuesday to hear testimony and possibly decide the matter.
On Friday, attorneys for Rodriquez wrote the Legislature, objecting to some of the witnesses the Legislature decided to ask to testify and saying Rodriquez and his testifiers would not be able to provide written testimony.
“Unfortunately, with the short notice of the June 27, 2017, hearing, there was insufficient time to fully comply with your request for the witnesses’ written testimony,” wrote Attorney Francis Jackson.
Jackson also objected to the Legislature hearing testimony from Attorney General Claude Walker and to testimony from Sarauw.
“We will object to any witness who cannot provide relevant evidence on the only issue before the 32nd Legislature, to wit: whether Senator-elect Rodriquez has satisfied the five requirements for membership established by … the Revised Organic Act,” Jackson wrote.
The hearing is scheduled to begin at 10 a.m. Tuesday in the Legislature’s conference room on St. Thomas. The session will continue Wednesday, when senators will consider legislation and nominations approved recently in committee.