V.I. Superior Court Judge Kathleen Mackay came prepared Wednesday to pick up where she left off in the case against senator-elect Kevin Rodriquez, but ended up staying the matter since Rodriquez recently removed the matter to V.I. District Court.
In a last-minute ruling Sunday night, the Virgin Islands Supreme Court said Rodriquez could not take the oath of office with the other senators Monday, despite a ruling issued on Jan. 5 by Mackay, who said that testimony from several witnesses, including Rodriquez’s wife, showed that Rodriquez has lived in the U.S. Virgin Islands since 2013, meeting the three-year residency requirement to run for Senate.
But the Supreme Court ruling Sunday night said Mackay couldn’t do that, using the rule of judicial estoppel, which precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. The high court remanded the matter back to Superior Court, and Mackay scheduled a status conference for 10 a.m. Wednesday.
On Tuesday, however, Rodriquez filed a motion to move the case to V.I. District Court and lobbied Sen. Myron Jackson, the Legislature’s new president, to make a decision and have him seated.
“Although the Superior Court dismissed the case and dissolved the injunction … the V.I. Supreme Court entered a last minute decision – hours before I was to be sworn in – reinstating the injunction and remanding the case back to Superior Court,” Rodriquez said Monday in a letter delivered to Jackson after the Senate’s swearing in ceremonies on St. Thomas.
“But in footnote 15 of its opinion, the Supreme Court implied that the courts may no longer have jurisdiction over this case once the 32nd Legislature comes into existence. Now that the 32nd Legislature has been sworn and seated, the Superior Court no longer has jurisdiction to determine my eligibility as a senator of the Virgin Islands. The Revised Organic Act clearly provides the that Legislature – not the courts – shall be the sole judge of the elections and qualifications of its members.”
Rodriquez’s suit asks the District Court for a definite answer to the question.
“While the Superior Court has ruled on certain matters, the nature of the controversy has changed since the 32nd Legislature convened on Monday, January 9, 2017,” Rodriquez defense attorney Christopher Kroblin wrote in his filing Monday. “While the Superior Court ruled on its jurisdiction prior to the convening of the 32nd Legislature, it has not ruled on its jurisdiction once the Legislature has convened. Defendant Rodriquez seeks to present that question to this Honorable Court in the first instance.”
Now that the case is pending, Mackay said Wednesday that no further action can be taken on it in Superior Court.
Attorneys for both sides – Christopher Kroblin for Rodriquez and Edward Barry for plaintiff Janelle Sarauw, a former senatorial candidate who filed the case against Rodriquez in early December – said they agreed with Mackay’s decision.
Barry, however, reminded the court that the removal of the case “does not diminish the force” of the temporary injunction that was reissued by the Supreme Court when it ruled Sunday night. Barry further described Rodriquez’s “conduct” as “pushing the line of contempt.”
“He’s dishonoring the courts in attempting to induce the Legislature to induct him,” Barry said.
“I hear you,” Mackay responded. “But the court cannot do anything because the order is stayed.”