U.S. District Judge Wilma Lewis issued a temporary restraining order Friday morning directing Sen. Alicia "Chucky" Hansen be placed back on the ballot.
In an order and opinion issued Friday morning, Lewis made the temporary injunction effective until Sept. 26 and directs the parties in the suit to tell the court if they want to file additional briefs by the end of the day Friday.
Lewis’ opinion said the defendants and plaintiffs make largely the same points, leaving little dispute.
"Not only did defendants offer no opposition to the entry of a TRO, defendants made essentially the same arguments as plaintiffs and requested the same relief at the TRO hearing," Lewis wrote. She determined the plaintiffs –- Hansen and a group of V.I. voters – had "a likelihood of success on the merits" and had met the four legal conditions for a temporary restraining order.
Lewis endorsed the proposition that a pardon restored Hansen’s eligibility because it restored all her civil rights. But she rejected Hansen’s argument that deJongh’s pardon "not only erased the legal effects of her conviction from the date of the pardon forward, but also reached back in time and served to make Senator Hansen’s May 2014 nomination papers valid."
Later, she explains, "Contrary to plaintiffs’ assertions, the cases cited by plaintiffs in their post-hearing brief do not—for the most part—support their position that pardons have retroactive effect."
"Most of the cited cases stand for the undisputed propositions that a pardon restores to a person the full enjoyment of his or her civil rights that were lost as a result of the conviction … and that the deprivation or suspension of any of these civil rights, after pardon, is punishment, and would nullify the power of the pardon," she wrote.
In late August, the V.I. Supreme Court ruled Hansen’s three convictions for willful failure to file income tax were "moral turpitude," rendering her ineligible to serve. (See Related Links below.) Gov. John deJongh Jr. then pardoned Hansen, saying her candidacy should be judged by the voters.
"I am not questioning the past illegal acts taken by the senator to which she has pled guilty,” deJongh wrote in a statement issued by Government House to announce the pardon. “Nor am I questioning the fact that these crimes have been definitively defined by the Supreme Court of the Virgin Islands as crimes of moral turpitude. Those determinations have been made."
However, he said, “I am not comfortable with an outcome that denies the voters of St. Croix an opportunity to decide again for themselves what they have twice before decided during the elections for the 29th and 30th Legislatures. It was publicly known at the time of those elections that the senator had been convicted of these crimes. It was also known that she had completed her sentence and fulfilled the obligations that followed from her conviction and sentencing.”
DeJongh said he was relying in part on the legal advice of Attorney General Vincent Frazer. Frazer issued a legal opinion that day, arguing essentially that Hansen’s convictions cannot be used to her legal disadvantage after the pardon.
St. Croix Board of Elections Chairman Adelbert Bryan brought the initial suit to force Hansen off the ballot. The VI.I. Superior Court ruled in Hansen’s favor, then the V.I. Supreme Court overturned that ruling and ordered her removed from the ballot, citing legal precedent for the notion that willful failure to file tax returns constitutes moral turpitude, rendering her ineligible under the law.
Supervisor of Elections Caroline Fawkes had initially declared Hansen qualified, but after the Supreme Court ordered Hansen removed and deJongh pardoned her, Fawkes declined to put Hansen back on the ballot.
“I stand on my decision that she was qualified before, but now with the court order, it has to be set aside,” Fawkes said after a Sept. 5 Joint Boards of Elections meeting. “And just like I got a court order to take her off, I need a court order to put her back on, so I expect this to go back to court soon. If I get another court order to put her back on the ballot, that’s what I’ll do.”
Two parties – Hansen and a group of Hansen supporters – filed separate suits in U.S. District Court on Sept. 7, asking the court to order the supervisor of Elections to put her back on the ballot.
Lewis heard arguments from both sides Wednesday and directed both sides to file supplemental briefs.
The V.I. government, representing Fawkes, has also filed a motion requesting the Supreme Court to rehear the case. However, with a subsequent pardon and federal court ordering Hansen back on the ballot, the Supreme Court’s decision to rehear or not rehear the case may not be immediately significant to Hansen’s candidacy.
That motion, filed by Assistant Attorney General Kimberly Salisbury, petitions the Supreme Court to rehear and reconsider their ruling. The request seems to indicate concern over the fact that the Supreme Court specifically directed the Superior Court to remove Hansen from the general election ballot. While a pardon may completely exonerate Hansen and make her eligible to run, the government’s filing may suggest a concern as to whether a pardon for the underlying crime would directly overturn the Supreme Court’s order to remove Hansen from the ballot.
Salisbury wrote in the motion that the judgment and mandate of the court to “set aside the nomination papers” of Hansen was “premature” since “the defect was curable by pardon from the governor restoring civil rights."
The government also argued the Supreme Court’s new interpretation of the law, concluding that "willful failure to file" an income tax return amounts to fraud, would make it harder to prosecute that crime because it "imposes on the government the burden to prove evil intent in willful failure to file cases."
And they argue that because this is a new interpretation of the law, Hansen did not have fair notice and amounted to an "ex post facto" law, a law written to criminalize an otherwise legal act after the fact, that is prohibited by the U.S. Constitution.
There is no automatic right to a rehearing of a V.I. Supreme Court decision and the court itself decides whether it will or will not entertain such a request
Therefore, as of Friday, Sept. 12, Hansen is back in the race.