Both sides in former Sen. Steven Payne Sr.’s lawsuit against the 34th Legislature have been ordered to appear in Magistrate Court on St. Thomas on Dec. 28 to explain why they shouldn’t be held in contempt of court.
Senior Sitting Superior Court Judge Renee Gumbs Carty issued the order Wednesday after two previous orders — the first on Nov. 17 and the second on Dec. 7 — asking the parties to file a joint proposed schedule for hearings in the case seemingly went ignored.
The deadline for the Nov. 17 order was Dec. 1, and when that passed without the required filings, Gumbs Carty issued another order on Dec. 7, giving both parties five days to comply.
Now they must appear at a “show cause hearing” on Dec. 28 to explain why they shouldn’t face contempt of court charges for failing to follow her orders.
It’s the latest hiccup in the case that Gumbs Carty has scheduled for a March 14 bench trial.
On Nov. 30, the judge issued a sharp rebuke to members of the 34th Legislature, denying their motion for an immediate stay of proceedings and another questioning her authority to preside over the case while her term on the bench was allegedly expired.
The Legislature had set a deadline of Dec. 1 for Gumbs Carty to respond to its motion questioning her jurisdiction from Dec. 1, 2022, when it alleged her appointment to the V.I. Superior Court expired, and May 14, when she was designated a senior sitting judge by the chief justice.
Gumbs Carty responded a day early with a two-page order threatening sanctions if the defendants question her authority again.
“The Defendant is hereby placed on notice that any further attempt to violate Virgin Islands Rule of Civil Procedure 11(b) with frivolous motions to harass, delay, distract from the nature of the above-captioned proceedings, or for any other purpose; or failure to comply with any court order will result in a show cause hearing and appropriate sanctions,” Gumbs Carty wrote.
At issue in the suit is whether the 34th Legislature and then Senate President Donna Frett-Gregory violated the body’s own rules when they voted 14-1 to expel Payne on July 20, 2022, over sexual harassment allegations against him. Payne was the lone nay vote and has denied any wrongdoing. The Democratic Party subsequently selected Angel Bolques Jr. to finish Payne’s term, and he won election that fall to the St. John senator-at-large seat.
Payne’s lawsuit, filed on July 28, 2022, contends that lawmakers may discipline, but not expel, a member. In doing so, they disenfranchised the voters who elected him to serve in the 34th Legislature, his attorney Treston Moore has said.
The Legislature, represented by Joseph B. Arellano, had argued that even if the 34th Legislature broke its own rules, it would be wrong for the court to intervene because that would violate the separation of powers doctrine, a constitutional law that limits any branch of government from exercising the core functions of another.
It has also argued in a Motion to Take Judicial Notice filed Nov. 13 that the Revised Organic Act, which functions as the territory’s constitution, broadly implies that the Legislature has the authority to expel senators, if not explicitly stating such.
Then, on Nov. 27, the Legislature filed the motions questioning Gumbs Carty’s authority to have issued rulings in the case at all when her term was apparently expired, asking her for “full disclosure and transparency,” including about her compensation during that time.
Superior Court judges are appointed for six years and may continue in office for another 180 days after their term expires unless a successor is appointed sooner, according to the motion. It alleged that Gumbs Carty was confirmed by the Legislature on June 3, 2016, and her term expired on June 3, 2022 — before Payne was expelled by the Senate and before he filed his suit.
Gumbs Carty’s successor, Judge Carol Thomas Jacobs, was confirmed on April 14 — more than six months past the expiration of Gumbs Carty’s initial term, which under the 180-day extension ended on Nov. 30, 2022, the motion stated.
“The Legislature is unaware of any authority by which Judge Gumbs Carty could continue to lawfully sit as a Judge after the expiration of her hold-over term on December 1, 2022,” the motion stated, and noted that notwithstanding, she entered five orders in the case between that time and her appointment as a senior sitting judge.
It objected “in the strongest possible terms” to those actions and to her continued jurisdiction over the case.
Meanwhile, Payne is facing sexual battery charges in Florida after he was arrested in September in Orlando on an out-of-county warrant from Duval County in the northeastern part of the state. He has pleaded not guilty and is currently free on $250,003 bail.
According to the information sheet filed on the Duval County Circuit Court docket, Payne is accused of sexual battery on a person older than 12 but younger than 18 that involved penetration with a sex toy. The alleged incident happened on or between Aug. 1, 2018 and Feb. 27, 2019 while Payne was in a position of “familial or custodial authority.”
Payne’s next pre-trial hearing will take place on Jan. 10 at the court located in Jacksonville, Florida. It appears from the docket that a final pre-trial conference is scheduled for Aug. 22, and jury selection for Aug. 26.
