James v. De Jongh

52 V.I. 202, 2009 WL 8473848, 2009 V.I. LEXIS 27
CourtSuperior Court of The Virgin Islands
DecidedDecember 23, 2009
DocketCase No SX-09-CV-319
StatusPublished
Cited by1 cases

This text of 52 V.I. 202 (James v. De Jongh) is published on Counsel Stack Legal Research, covering Superior Court of The Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. De Jongh, 52 V.I. 202, 2009 WL 8473848, 2009 V.I. LEXIS 27 (visuper 2009).

Opinion

DONOHUE, Judge

MEMORANDUM OPINION

(December 23, 2009)

THIS MATTER is before the Court on a Verified Petition for Writ of Mandamus filed by Petitioners, Gerard Luz James II, in His Individual [204]*204Capacity, and Mary L. Moorhead, in Her Individual Capacity (hereinafter “Petitioners”).1 Respondent, Honorable John P. deJongh, Jr., Governor of the Virgin Islands of the United States (hereinafter “Respondent”) filed an Answer thereto.

1. FACTUAL and PROCEDURAL BACKGROUND

Pursuant to Public Law 94-584 § l,2 the United States Congress (hereinafter “Congress”) authorized “the peoples of the Virgin Islands and of Guam, respectively, to organize governments pursuant to constitutions of their own adoption . . . .” Section 2(a) of Pub. L. No. 94-584 further provides that “[t]he Legislatures of the Virgin Islands and Guam, respectively, are authorized to call constitutional conventions to draft, within the existing territorial-Federal relationship, constitutions for the local self-government of the people of the Virgin Islands and Guam.”

The 25th Legislature of the Virgin Islands (hereinafter “V.I. Legislature”) enacted Act No. 6688,3 which established the Fifth Constitutional Convention (hereinafter “Convention”). In accordance with Act No. 6688(l)(b), the Convention was tasked with preparing and agreeing upon a draft of the constitution of the Virgin Islands. Act No. 6688(l)(o) proscribed the procedure in which the proposed constitution would be handled once adopted by the Convention. The Convention was required to adopt a proposed constitution no later than [205]*205May 31, 2009.4 The Governor of the Virgin Islands had ten days to forward the proposed constitution to the President of the United States (hereinafter “President”) once it was delivered to him by the Convention. See Act No. 6688(l)(o). It is undisputed that the Convention delivered the proposed Constitution to Respondent on June 1, 2009.

The Verified Petition for Writ of Mandamus, filed on June 30, 2009, alleges that Respondent failed to forward the proposed Constitution to the President within the ten days required by Act No. 6688. Petitioners argue that Respondent’s act of not forwarding the proposed Constitution to the President is in violation of Pub. L. No. 94-584 and Act No. 6688 as neither law allows Respondent to modify, amend, veto, or withhold the proposed Constitution. Respondent admits that the proposed Constitution was not forwarded to the President. Respondent’s argument appears to be that the proposed Constitution does not comply with the requirements of Pub. L. No. 94-584 § 2(b) and because of this, was apparently not forwarded to the President. Respondent makes no further supporting argument regarding non-compliance.

On July 14, 2009, Respondent filed a Motion to Compel, arguing that petitions for writ of mandamus must be pled according to the Rules 10(b) and 8(a)(2) of the Federal Rules of Civil Procedure. Respondent asserted his difficulty with responding to the Verified Petition for Writ of Mandamus because the allegations were set forth in narrative form instead of numbered paragraphs. This Court held that a petition for writ of mandamus need not strictly be pled in compliance with Federal Rules 8(a)(2) and Rule 10. Additionally, the Court found that the Petition did not suffer from such pleading or procedural defects that would render it unanswerable. Therefore, this Court held it was unnecessary to order Petitioners replead the Petition, and ordered Respondent to file any responsive pleading to the Verified Petition for Writ of Mandaihus within ten days. On October 27, 2009, rather than filing a response that substantively argued the merits of Petitioners’ claims, Respondent filed an Answer to Verified Petition for Writ of Mandamus numerically denying or admitting the Petitioners’ allegations and asserting defenses and affirmative defenses.

[206]*206II. STANDARD and DISCUSSION

The Court’s authority to grant mandamus relief is found in Title 5, Section 1361(a) of the Virgin Islands Code, which provides:

[that the court] may issue a mandatory order to any inferior court, corporation, board, officer, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station... The order shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law.

In short, Section 1361(a) states that a mandamus order may be issued to compel an officer to perform a duty resulting from an office, trust, or station. Respondent, as the Governor of the Virgin Islands, is the chief executive officer of the Virgin Islands5 and therefore, falls within the Court’s jurisdiction as a public officer. Nonetheless, before mandamus relief may be granted, Virgin Islands law mandates that a court find: (1) the Petitioner has a clear right to the relief sought, (2) Respondent has a plainly defined and peremptory duty to do the act in question, and (3) there is no other adequate remedy available. See Donastorg v. Gov’t of Virgin Islands, 45 V.I. 259, 273 (Terr. Ct. 2003); Goodwin v. St. Thomas-St.John Bd. of Elections, 43 V.I. 89, 97 (Terr. Ct. 2000). “Mandamus relief is an extraordinary remedy and should only be issued if there are compelling circumstances.” Donastorg, 45 V.I. at 273.

Petitioners allege that they have a clear right as individual taxpayers to have the Court issue a writ of mandamus because Respondent is in violation of Pub. L. No. 94-584 and Act No. 6688. Petitioners do have the right as individual taxpayers to seek mandamus relief from the Court; nevertheless, the Court must still find that all the three requirements are met before such relief is granted. If Petitioners demonstrate a clear right to the relief sought, that Respondent failed to perform a plainly defined and peremptory duty, and there is no other adequate remedy available, mandamus relief would be appropriate under Title 5 V.I.C. § 1361.

This Court has previously determined that taxpayer standing may be granted where a petition for mandamus relief is sought to enforce a statutory duty of a public official, and the petitioner demonstrates that he [207]*207or she is a taxpayer and that there is an issue of great public importance. See Case No: SX-09-CV-319, Order dated Oct. 13, 2009, pp. 8-10. This Court held that this is such a case — where the issue, of whether Respondent’s failure to forward the proposed Constitution was a violation of statutory law, is an issue of great public concern to the Territory of the Virgin Islands warranting judicial review. Id.

The significant issue before the Court centers on whether Respondent had a plainly defined and peremptory duty to forward the proposed Constitution to the President and whether his failure to do so was contrary to Pub. L. No. 94-584 and/or Act No. 6688 making him susceptible to an order of mandamus. A finding that Respondent had a plainly defined and peremptory statutory duty, which he failed to perform, would constitute Petitioners’ clear and indisputable right to mandamus relief.

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Cite This Page — Counsel Stack

Bluebook (online)
52 V.I. 202, 2009 WL 8473848, 2009 V.I. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-de-jongh-visuper-2009.