The Virgin Islands Supreme Court has scheduled three cases for consideration when it convenes on March 12 on St. Thomas, including former Sen. Steven Payne Sr.’s complaint against the 35th Legislature over his expulsion from the Senate in 2022 and Gov. Albert Bryan Jr.’s appeal of legislation changing the composition of the V.I. Water and Power Authority’s governing board.
In an order issued on Friday, the court said it will hear the Payne and Bryan cases and a child custody dispute, Tarah S. Malek v. Anthony W. Romano. Chief Justice Rhys S. Hodge and Associate Justices Maria M. Cabret and Ive Arlington Swan will comprise the panel for the Payne and Bryan cases, but Hodge is recused from the Malek case, where Associate Justice Jessica Gallivan will be designated in his place, according to the order.
The V.I. Supreme Court transferred Payne’s lawsuit against the Legislature to its jurisdiction in January in what it called an “extraordinarily rare” case, citing in part the Superior Court’s failure to issue a key opinion on a motion to dismiss for more than a year and a half.
Payne filed the complaint in July 2022 after he was expelled from the 34th Legislature by his colleagues over allegations of sexual harassment by a staff member. He is seeking a declaratory judgment that his expulsion was without statutory authority and monetary damages.
Payne’s lawsuit contends that under the Revised Organic Act of 1954 — the territory’s de facto constitution — lawmakers may discipline, but not expel, a member. In doing so, they disenfranchised the voters who elected him to serve in the 34th Legislature, his attorney Treston E. Moore has said.
Payne, who was the at-large senator for St. John, is joined in the complaint by resident Noellise Powell, who alleges that she was unduly deprived of the services provided by the candidate she voted for.
In a brief filed on Thursday, Moore wrote that under the Revised Organic Act, there is a provision to recall an elected official, which would be a better alternative to expulsion “because it would give the person elected back to the electorate to determine the Member’s fate. That would also not do violence to our ‘republican form of government,’ by allowing those that have qualified as holders of the voting franchise … to reconsider their choices for elected officials, like Appellee Powell.”
However, he added, “[u]nfortunately for the Legislature, Appellee Payne and the alleged conduct attributed to him, would not meet the requirements to recall under this provision.”
The Legislature, represented by Joseph B. Arellano, has argued that even if the 34th Legislature broke its own rules, it would be wrong for the court to intervene because that would violate the separation of powers doctrine, a constitutional law that limits any branch of government from exercising the core functions of another.
It has also argued that the Revised Organic Act broadly implies that the Legislature has the authority to expel senators, if not explicitly stating such.
At the center of Bryan’s appeal is Act 8472, which reduced the number of WAPA board members he could appoint from three to one and stipulated that the director of the Virgin Islands Energy Office be the sole cabinet-level member on the board.
The government has argued that the legislation infringes on the governor’s powers under V.I. law, the federal Revised Organic Act and the U.S. Constitution.
The Legislature has argued that the act removes political influence from the board. Besides limiting the governor’s appointments, it reduced the size of the WAPA board from nine members down to seven and the number of members needed for a quorum from five to four. It also requires members to reside in the districts they represent and all non-government members to have formal education in any one of several fields, from energy production to information technology.
The Legislature passed the measure in early May 2021. Bryan vetoed it two weeks later. Senators unanimously overrode the veto that August. Less than a month later, Bryan sued and asked the Superior Court to issue a temporary restraining order and permanent injunction barring WAPA from complying with Act 8472 because, in the word of the suit, it “is inorganic, unconstitutional, and therefore void.”
The Superior Court denied Bryan’s request for a permanent injunction last March and lifted the temporary injunction. An appeal was filed on Sept. 18, asking the Supreme Court to find the Superior Court’s decision incorrect.
The Malek appeal concerns a dispute involving a father’s vacation in Italy with his minor child where the child’s mother showed up, in violation of a December 2016 court order stating that neither party would obstruct the parenting time schedule of the other, according to filings in the case.
Malek was subsequently ordered by the Superior Court to pay the costs of the father’s vacation and is appealing that decision. She has denied all allegations and, in a brief filed in August, said she “does not believe that being in the same town in Italy at the same time caused any contention.” Both Malek and Romano are representing themselves.
Oral arguments will begin at 10 a.m. on March 12 in the Payne and Bryan cases, with each side allotted 15 minutes to present, while there will not be oral arguments in the custody dispute, according to the order.
