Lawsuits filed in two separate courts have caused some confusion over who’s going to deal with the Fifth Constitutional Convention’s case against the government.
In an order issued early this week, District Court Judge Raymond Finch has given attorneys for both sides 10 days each to hash out whether the District Court should hear the case or dismiss it, leaving the matter for the V.I. Superior Court to handle.
About a month ago, Gov. John deJongh Jr. announced at a press conference that he would not be forwarding the proposed constitution submitted by the convention to President Barack Obama. Among other things, the document failed to recognize the U.S. Constitution as the "supreme law of the land," and gave ancestral native and native Virgin Islanders certain rights and benefits that would not be available to all other residents, he explained, referencing sections of a recent opinion by Attorney General Vincent Frazer, which also says the governor is not obligated to send the document on if he determines it’s unconstitutional.
Constitutional Convention delegates Gerard Luz James II and Mary Moorhead quickly filed a complaint in District Court, stating that deJongh violated both local and federal law when he "refused" to forward the draft on to the president. The federal law authorizing the territories to establish constitutional conventions says "only the president can comment on the contents of the proposed constitution of the Virgin Islands," according to the complaint.
Late last week, the government filed a motion to dismiss the case. A 20-page memorandum of law accompanying the motion states, among other things, that the District Court lacks jurisdiction over the matter.
"In the absence of any allegation of any federal basis for jurisdiction, this case should be dismissed for lack of subject matter jurisdiction," the memorandum says.
The memorandum also states:
- there is no evidence that members of the convention gave James and Moorhead permission to file a lawsuit, and couldn’t have given them permission because the convention went into recess at the end of May;
- the convention’s enabling legislation does not give delegates the power to sue or be sued; and that
- James and Moorhead lack standing, and have failed to allege an "injury-in-fact" they have suffered as a result of the governor’s decision not to forward the proposed constitution on to the president.
"James and Moorhead’s mere assertion that the governor failed to forward the documents within 10-days as required is not sufficient to establish standing," the memorandum states. "Courts that have reviewed similar claims of standing have consistently and repeatedly held that general allegations that the law is not being followed by government officials are insufficient to confer standing to sue in district court."
The court also can’t rule on the matter without violating the separation of powers doctrine, according to the memorandum, which says that the court should "refrain from deciding political questions" and "give deference to the governor’s decision and should not become involved in a matter committed to the executive branch of government."
While no decision has been made on the motion to dismiss, James and Moorhead have filed a similar complaint last week in Superior Court. The case has not yet been assigned to a judge, according to court staff.
The most recent filing prompted Finch to issue an order questioning whether the District Court should proceed with the case or dismiss it under an abstention doctrine, which would determine whether the case — which has been filed in two courts at the same time — infringes upon the powers of the other court.
The government has 10 days to brief the matter, while the "petitioners" — James and Moorhead, according to court documents — have 10 days to respond. The government is then given five days to file a final reply, according to Finch’s order.
