In what it called an “extraordinarily rare” case, the V.I. Supreme Court has transferred former Sen. Steven Payne Sr.’s lawsuit against the 34th Legislature to its jurisdiction, citing in part the Superior Court’s failure to issue a key opinion on a motion to dismiss for more than a year and a half.
Payne filed the complaint in July 2022 after he was expelled from the 34th Legislature by his colleagues over allegations of sexual harassment by a staff member. He is seeking an injunction and declaratory judgment declaring the expulsion illegal, as well as monetary damages.
Payne’s lawsuit 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.
Payne, who was the at-large senator for St. John, is joined in the complaint by resident Noellise Powell, who alleges that she was unduly deprived of the services provided by the candidate she voted for.
The Legislature and Sen. Donna Frett-Gregory filed a motion to dismiss the case in September 2022, claiming that the senators are authorized under the Revised Organic Act of 1954 to be the sole judge of the elections and qualifications of its members, among other grounds.
The defendants filed a second motion to dismiss in January 2023, asserting the case had become moot due to the expiration of the term to which Payne had been elected.
The Superior Court denied the second motion to dismiss in April 2023 but never addressed the first one, and then after seven months, on Nov. 17, issued an order scheduling the matter for a bench trial on March 14 and denying the first motion to dismiss, according to court documents. At that time, Judge Renee Gumbs Carty said a memorandum opinion on her decision would “be issued shortly.”
“While more than two months have passed since entry of that order, the Superior Court has not yet issued an opinion or other document explaining why the motion to dismiss will be denied,” Supreme Court Chief Justice Rhys S. Hodge and Associate Justices Maria M. Cabret and Ive Arlington Swan wrote in their order transferring the case, issued Wednesday.
On Dec. 22, the Legislature filed a petition to transfer the case to the Supreme Court, alleging that the Superior Court infringed on the separation of powers principles inherent in the Revised Organic Act and that it exceeded its authority by setting the matter for trial without first adjudicating the immunity defenses that have been fully briefed for nearly a year-and-a-half, “in effect denying it the protection of that immunity which is not just to shield it from liability but also to shield it from trial,” the high court wrote in its order.
Payne opposed the transfer, asking that the Supreme Court allow the lower court to issue its ruling “and then request that it certify that ruling for an interlocutory appeal,” which allows a party to appeal a ruling by a trial court while other aspects of the case are still proceeding.
While it agreed with the plaintiffs “that it would certainly be preferable to allow this case to proceed through the ordinary appellate process,” the Supreme Court justices wrote, “we do not believe that process has proved adequate.”
Specifically, the defendants were entitled to a ruling on their immunity claims at the earliest possible stage of the litigation, but the Superior Court permitted those claims to go unresolved for more than a year and a half, “exercising its discretion to first address non-immunity claims such as mootness even though they were asserted months later,” the justices wrote.
“And while the Superior Court indicated in its November 17, 2023 order that the motion to dismiss ‘will be denied and a memorandum and order will be issued shortly,’ no subsequent opinion or order has issued, which has made it impossible for the defendants to appeal to take an immediate appeal on that issue to this Court and raises the specter that an opinion might potentially not even issue until after the scheduled March 14” trial, according to the order.
“For these reasons, we agree that this is amongst the extraordinarily rare cases that warrants invocation of our transfer power pursuant to section 32(d),” the order states. In doing so, the high court vacated the Superior Court order denying the defendants’ motion to dismiss as well as the March 14 bench trial date.
Per the court order, all proceedings have been stayed pending the Supreme Court’s consideration of the defenses raised by the defendants in the Sept. 30, 2022 motion to dismiss, including their immunity from prosecution under the Revised Organic Act.
The defendants have been given a deadline of Jan. 31 to file a brief in support of dismissal based on their immunity defenses, and the plaintiffs have until Feb. 14 to respond, according to the order. Oral argument on the matter is set for March 12.
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.”
A pre-trial hearing was held on Jan. 10 at the court located in Jacksonville, Florida, and it appears from the docket that a final pre-trial conference is scheduled for Aug. 22 and jury selection for Aug. 26.
