Lawsuit challenges revision Constitutional Convention
Published: October 2, 2012
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ST. CROIX - Federal District Judge Wilma Lewis has scheduled a hearing for arguments in the federal court case in which two Fifth Revision Constitutional Convention delegates have filed suit against the convention, the 29th Legislature and Gov. John deJongh Jr.
In the complaint filed in District Court on Friday, the parties are petitioning the court for injunctive relief and for declaratory judgement and also have filed for a temporary restraining order and preliminary injunction.
The plaintiffs in the case, Adelbert Bryan and Mary Moorhead, have brought the action against the parties as taxpayers and as elected members and officers of the Fifth Constitutional Convention.
They are requesting primarily that a temporary restraining order and preliminary injunction be granted barring the revision convention from proceeding to revise, submit new language or any other action relative to the drafting of the proposed constitution.
They also are seeking declaration from the court that Act 7386, creating the Fifth Revision Constitutional Convention, is in violation of federal law and is unconstitutional. They are requesting a permanent injunctive relief precluding any action by the Fifth Revision Constitutional Convention, court costs and fees associated with the action and any other relief that the court deems just, proper and fair.
The plaintiffs are challenging the Legislature and the governor's move to create the revision convention through Act 7386, which mandates the revision of the draft constitution by the original 30 elected delegates along with an additional five-member legal team tasked with making all of the revisions for the original delegates.
The law also gives the Fifth Revision Constitutional Convention until the end of October to finish the revisions. 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.
Fifth Constitutional Convention President Gerard Luz James II is attending to personal matters and has turned all duties and responsibilities over to acting President Lawrence Sewer.
On Monday, Sewer said he did not know where James was, or when he would be returning to his position. Calls to James went unanswered Monday.
Sewer issued a press release Monday morning, stating that the convention's executive committee has voted to reject the mandates of Act 7386 because they believe that the act violates federal law by giving power to the non-elected revision convention to prepare modifications to the proposed Constitution of the Virgin Islands.
In the seven-page complaint, the plaintiffs allege that Public Law 94-584 and its amended version authorizes only a constitutional convention to revise the proposed constitution and does not give the territory the authority to create a body that is not a constitutional convention to draft or revise a constitution and propose it.
"The law provides for the revision of the draft constitution by the convention and thereafter it is to be directly returned to the president by the convention. The 5th Revision Convention is not a reconvening constitutional convention," the complaint states.
The plaintiffs assert that Act 7386 impermissibly grants the legal team the sole responsibility to revise or propose new provisions to the proposed constitution. They said the joint resolution and the amended public law are controlling and should result in Act 7386 being declared unconstitutional under the Supremacy Clause and in violation of federal law.
Senate President Ronald Russell said the lawsuit is based on a simple legal matter of whether the resolution in sending the constitution back to be revised, now pre-empts the original law from Congress that gave the local body jurisdiction over the entire process.
"We were given authority over the entire constitution and in sending it back to be revised, Congress did not take away that authority," he said. "There were no provisions made for if the draft was returned, so we had to create law."
Sewer said the executive committee has been meeting via teleconference with the convention's legal consultants to discuss the federal concerns with the delegation's draft.
"We are still working on the document," Sewer said.
Sewer said he is working to get all the convention delegates together on a teleconference to bring the discussion to the larger group.
By law, the Constitutional Convention is subject to the territory's open meetings law, and all meetings must be open to the public. Meeting as a body and taking votes via teleconference without public notice or invitation may be a violation of the law.
Sewer said it would not be illegal because the body technically still is in recess. He said James recessed the convention in 2009 and until he formally reconvenes the body - or Sewer gets a written instruction to do so himself - the body is not meeting formally and cannot take action.
"We're not taking votes. We are just taking an attendance roster," Sewer said. "We cannot do that, because only the president can bring us from a recess mode."
However, Sewer said the delegates are working to address the nine concerns laid out by the federal government and will have something to present to the people by the end of the month.
In an order issued Monday, Lewis ordered that the hearing be held at 3 p.m. Wednesday and that she expects responses from the defendants on the Emergency Motion for a Temporary Restraining Order by noon today.
- Contact reporter Fiona Stokes at 714-9149 or email firstname.lastname@example.org.