Judge refuses revision convention restraining order
Published: October 9, 2012
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ST. CROIX - U.S. District Judge Wilma Lewis denied a motion for a temporary restraining order filed by two Fifth Constitutional Convention delegates against the revision convention, the 29th Legislature and Gov. John deJongh Jr.
In the case filed Sept. 28, plaintiffs Adelbert Bryan and Mary Moorhead filed for a temporary restraining order and preliminary injunction, barring the Fifth Revision Constitution Convention from proceeding to revise, submit new language or any other action relative to the drafting of the proposed constitution.
They also are seeking a declaratory judgement from the court that Act 7386, creating the Fifth Revision Constitutional Convention, is in violation of federal law and is unconstitutional and requested permanent injunctive relief precluding any action by the Fifth Revision Constitutional Convention.
In her order, Lewis said that to obtain a temporary restraining order, the plaintiffs had to demonstrate that they are likely to succeed on the merits of their pre-emption claim; they will suffer irreparable harm without an injunction; the harm caused to the non-moving parties does not outweigh the benefits of injunctive relief; and the injunction is in the public interest. The plaintiffs failed to do so, Lewis said.
She said the plaintiffs 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.
Additionally, the sections of Act No. 7386 establishing and convening the Fifth Revision Convention - including the provisions incorporating the "legal team" into the Fifth Revision Convention - are consistent with sections 2 and 3 of Public Law 94-584 and therefore are not in conflict with federal law, she said.
"As such, Plaintiffs' claim that Act No. 7386 is pre-empted by federal law fails as a matter of law, and Plaintiffs have therefore failed to show a likelihood of success on the merits," Lewis' order reads. "Because likelihood of success on the merits is a dispositive element, Plaintiffs' 'Emergency Motion for a Temporary Restraining Order' must be denied."
Act 7386 requires the revision of the draft constitution by the original 30 elected delegates and an additional five-member legal team tasked with making all of the revisions for the delegates.
The issue of the legal team is central to Bryan and Moorhead's complaint.
The lawsuit was filed Sept. 28, and on Oct. 3, attorney Yohanna Manning filed a motion to intervene on behalf of the convention as a whole after the executive committee voted to reject the mandates of Act 7386.
Halfway through the hearing Wednesday, Bryan said he and Moorhead had reconsidered their position and made an oral motion to dismiss deJongh from the case.
Bryan said Monday that it was clear to him that Congress authorized three branches of government to legislate, enforce and interpret and the branch that has the job to interpret has a free hand on how they do so.
"Congress authorized a convention and not a legislative session," he said. "If the legislators will be the ones taking over at the end of the day, how is that so?"
According to Bryan, the Legislature did not provide the funding or a place to meet for the convention, and that in itself shows its conflict.
"It is clear in the joint resolution that the legislation can speak for how the convention is set up, but they cannot write that document," he said. "None of them on that legal team meet the criteria to work on that document."
Bryan said the Legislature wants to disenfranchise the natives of the territory and they are taking a step in the direction of creating a revolution.
"The court has the final say, but I hope the court understands what is written, because we are heading full speed into a dangerous revolution in the Virgin Islands and Caribbean," he said. "This is a new breed of people. This is bigger than Bert Bryan."
Addressing the issue of the five-member legal team stipulated by the act, Bryan and Manning both maintain that Congress urging the convention to reconvene was a directive and that it did not include any entities other than the original delegates taking action.
Lewis said all Congress did was urge the action and did not prohibit any other action by the lawmakers to get others involved in the process.
The revision law gives the Fifth Revision Constitutional Convention until the end of October to finish the draft. If the convention fails to do so, Act 7386 stipulates that the task of creating a revised Constitutional draft would then fall to the Senate. Bryan said the Legislature had not appropriated any funds and to date the convention has not reconvened.
Acting Fifth Constitution Convention President Lawrence Sewer said Monday night that the executive committee of the Fifth Constitutional
Convention unanimously voted to forward a draft to the full body and that they will take action some time in the next week or two. The 30 delegates at that time will decide whether to vote for the approval of that document and forward it to Washington.
President Gerard Luz James is out of the territory, but Sewer said he is expected back this week and will make a determination as to when the full body of delegates will be called into session.
Senate President Ronald Russell represented the Legislature in a "limited capacity" during last week's hearing and said the case was a simple pre-emption issue because all of the other complaints have no merit and speak to the content of the legislation.
Russell said the legal team is in place to assist the convention and will eliminate any legal issues that may come up and will help the process move along faster to ensure the delegates meet their deadline.
Lewis said the order denying the temporary restraining order will be followed as promptly as possible by a Memorandum Opinion providing a fuller exposition of the court's ruling and addressing other corollary matters raised in Bryan and Moorhead's complaint and at the hearing on plaintiffs' motion.
By the end of the work day on Monday, no further filings had been made in the case.
- Contact reporter Fiona Stokes at 714-9149 or email firstname.lastname@example.org.