*Updated – See Editor’s Note* A decision handed down last week by the Third Circuit Court of Appeals has given the Legislature the final say on what happens to the still vacant St. Thomas-St. John Senate seat and an official hearing date was set Thursday night to deal with the matter.
Speaking from Denmark early Thursday, Senate President Myron Jackson said that he was “working” with his colleagues to hold a hearing, and by the end of the day, June 27 had been decided on. Jackson, who is a member of the territory’s Centennial Commission, paid his own way to Denmark, according to Senate staff, but it is still unclear how the rest of the four-member party got there.
Joining together, both the Senate’s majority and minority caucuses spoke out earlier this month against the Commission’s planned trip, which was initially expected to include 11 members and by paid for by public funds.
In the meantime, the Third Circuit’s decision – which put to rest a legal battle waged for months by senator-elect Kevin Rodriquez – has remained untouched, and it is unclear what happens next in the process. Senate minority members have long supported the Third Circuit’s opinion, however, and members of the District Democratic Committee issued a statement this week calling for the Senate to have Rodriquez “immediately” seated or sworn in so that a decision could be made on who takes the seat.
The Third Circuit ruling does not overturn any of the legal decisions made in the case so far, but it does say that a previous ruling from the District Court makes moot any injunctions put in place to keep Rodriquez from taking his Senate seat. The ruling also says that now that the Legislature has been sworn in, only its members can determine whether Rodriguez can be seated or not.
Rodriquez came in sixth in the November 2016 general election to fill seven St. Thomas-St.John legislative seats and the St. Thomas-St. John Board of Elections certified his candidacy and the final vote.
But in December, the eighth-place candidate, Janelle Sarauw, joined by a campaign worker, sued in V.I. Superior Court to stop Rodriquez from being seated, arguing that Rodriquez had asserted in court documents filed in 2016 that he was a bona fide resident of Tennessee and therefore could not meet the three-year V.I. residency requirement set by V.I. law.
The V.I. Supreme Court determined that in his bankruptcy petition, Rodriquez swore under penalty of perjury that he lived in Tennessee and had not lived in another state anytime during the preceding three years. It applied the doctrine of “judicial estoppel,” saying that Rodriquez’s claim under oath in one court prevented him from claiming the opposite in another court.
Rodriquez filed to have the case moved to federal court. He argued that the Revised Organic Act, the federal law that acts as a constitution for the territory, gives the Legislature final authority over who is qualified to sit. Rodriquez also sued the Legislature, requesting it seat him.
Sarauw, on the other hand, argued the St. Thomas/St. John Board of Election erred and asked the court to direct the board to decertify Rodriquez as a candidate.
While the Senate deferred to the courts, both Rodriquez’s and Sarauw’s suits were eventually dismissed, along with an appeal recently filed by Rodriquez that sought to stay the special election.
Meanwhile, a special election, in which Sarauw was selected by voters to fill Rodriquez’s vacant seat, was held, but the results were never certified by the St. Thomas-St. John Board of Elections, whose members said they would not be able to put Sarauw in until Rodriquez was officially taken out, or de-certified. Rodriquez sought to stay the election by filing a suit in District Court, which was also denied, and Rodriquez countered with another appeal to the Third Circuit, which did not weigh in on the previous legal matters, but chose to stay focused on the roles of the Elections Board, the courts and the Legislature in the legal process.
According to the June 9 ruling, the Revised Organic Act maintains that the duty of the Elections Board is to determine the candidates’ qualifications. The courts may jump in if there is a challenge between the time the election is certified and the Legislature convenes, but afterward, the “power to determine a winning candidate’s eligibility to serve shifts to the Legislature,” according to the ruling.
Speaking to the Source this week, St. Thomas-St. John District Board of Elections chair Arturo Watlington, Jr. also said the Legislature is in a tough position, as it now may have to swear in Rodriquez before it decides to expel him or not. Or, if senators decide to seat him, the Legislature could face more lawsuits from Sarauw, who also has been demanding that the special elections results be honored.
“I don’t know the process, but it seems that in order to act on someone, that person has to be a member of the Legislature,” Watlington said. “In order to determine if that person is ineligible, they would have to be a member, so they could have to swear him in first.
Two calls made and an email sent to the Attorney General’s Office to see if local law gives any guidance on the process were not returned.
Editor’s Note: An earlier version of this story said that a hearing had not been set in this matter; a hearing date was set late Thursday, according to the Senate.