Mary L. Moorhead, Mario Moorhead and Gregory E. Miller v. Governor Albert Bryan, Raquel Berry-Benjamin, commissioner, V.I. Dept. of Education and V.I. Board of Education

2020 VI Super 46U

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

Mary L Moorhead, Mario Moorhead and Glegory E Miller SX 13 CV 348

Plaintiffs ACTION FOR INJUNCTIVE RELIEF

V

Gov Albert Bryan Raquel Betty Benjamin Commissioner V I Dept of Education and V I Boaid of Education

Defendants

Cite as 2020 VI Super46U

Appearances

Mary L Moorhead, Pro Se

Mario Moorhead, Pro Se

Gregory L Miller, Jr, Pro Se Christiansted V I 00820

Christopher M Timmons, Esq , Assistant Attorney General Department of Justice

Attorney f0) Defendants

Christiansted V I 00820

OPINION ORDER

Meade, Judge

‘11 1 This matter is before the Court on Defendants Motion for Summary Judgment and Plaintiffs objection as referenced in Plaintiffs Trial Memorandum For the reasons outlined below the Motion for Summary Judgment is DENIED

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Factual and Procedural Background Hi 2 The PlaintiffsI initially filed IhlS action on October 21 2013 as a Petition for Writ of Mandamus claiming standing to seek relief as taxpayers under Title 5 V IC § 80 In substance the Petition alleged that the Government of the Virgin Islands through its executives administrators and agencies, failed to carry out the mandate of Act # 4844 as codified in Title 17 V I C § 41(c) by their failure to implement Virgin Islands History and basic Caribbean History in the public school curriculum Accordingly the Governor of the Virgin Islands, the Commissioner of Education and the Department of Education were made Respondents’ to the action The Petitioners contended that this statute requires the teaching of Virgin Islands and Caribbean History at ail grade levels K through 12 ‘}[ 3 On November 25 2013 the Respondents then Governor John de Jongh and Acting Commissioner of Education Donna Frett Gregory filed their opposition to the Petition In their opposition, the Respondents argued that the Writ of Mandamus is inappropriate because it would require the Court to command public officials to carry out discretionary acts since they had fulfilled their legal duties by implementing the curriculum as it then existed The Respondents also argued that the Petitioners had failed to meet the standards for mandamus because they had other available remedies Further the Respondents challenged the Petitioners claim of tax payer standing pursuant to Title 5 V I C § 80 In addition the Respondents challenged Petitioners assertion of jurisdiction pursuant to Title 17 V I C § 262

' After Plaintiff Mary Moorhead appealed an order of the Superior Court dismissing the action the VI §upreme Court remanded stating that mandamus relief was unavailable because Petitioners had other available remedies The Plaintiffs are currently engaged in this action as Plaintifls seeking injunctive relici rather than Petitioners seeking relief under a petition for mandamus as initially filed 1 The Parties are identified as Petitioners and Respondents in relation to the proceedings under the Petition for Mandamus as initially filed but as Plaintiffs and Defendants in relation to the current proceedings under the First Amended Complaint where Plaintiffs seek relief under Title 5 VIC § 80

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Mary L Moorhead et al v CV1 et a] 2020 v1 Super 46!)

Opinion Order

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1M On March 11 2014 the Petitioners requested a status hearing on the Writ of Mandamus On June 26 2014 the Superior Court as per Judge Douglas A Brady entered an order denying the Petition for Mandamus and denying Petitioners motion for a hearing as moot thereby dismissrng the action Petitioner Mary Moorhead filed an appeal with the Virgin Islands Supreme Court The Supreme Court issued its opinion on April 14 2015, finding that the Superior Court erred when it dismissed the action on the denial of the writ of mandamus without considering Petitioners right to relief under Title 5 V I C § 80 The Supreme Court reversed the order dismissing the action and remanded to the Superior Court for further proceedings ‘11 5 On remand, the Superior Court dismissed the claim for mandamus relief but reinstated the claim for relief under sec 80 Subsequently the Court granted the Plaintiffs leave to amend the complaint to add new Plaintiffs and to substitute new Defendants to reflect the individuals who held the offices of Governor and Commissioner of Education The Plaintiffs also added the Board of Education as a necessary party Defendant Despite urging by the Court the Parties failed to reach an amicable resolution and the Court scheduled the trial of the matter for Match 16 2020 On February 7 2020 the Defendants Gov Albert Bryan and Commissioner of Education Raquel Berry Benjamin filed their Motion for Summary Judgment Although the Plaintiffs did not directly file an opposition to the Motion for Summary Judgment they filed a Trial Memorandum on March 6 2020 through which they registered their opposition to summary judgment The Court conducted a Final Pretrial Conference on March 10 2020 at which time it heard arguments on the Motion for summary Judgment

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DISCUSSION

A Summary Judgment

‘ll 6 A court should only grant summary judgment when the pleadings the discovery and disclosure material on file and any affidavits show there is no genuine issue as to any material fact Williams i United Corp 50 VI 191 194 (VI 2008) A genuine issue of material fact exists if the evidence is such that a reasonable trier of fact could return a verdict for the non moving party Matsusluta Elev Indus Co Ltd t Zenith Radio Corp 475 U S 574 587 (1986) A matelial fact is one that will affect the outcome of the case under applicable law Anderson 1 Liberty Lobby Inc 477 U S 242 247 (1986) When reviewing the record the court must View the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party and take the nonmoving party 5 conflicting allegations as true if supported by proper proofs Simpson t Golden Reasons LLLP 56 VI 597 617 (V12012) To su1vive a motion for summary judgment the nonmoving party s evidence must amount to more than a scintilla but may amount to less than a preponderance Id ‘1[ 7 When a nonmoving party fails to object or otherwise oppose a motion for summary judgment the court must still inquire whether the facts therein entitle the movant to relief as a matter of law Mar rm v Martin 54 V1379, 389 (V12010) (Citing Anchorage Ass n v V I Board ofTax Rel/ten 922 F 2d 168(3rd Cir 1992))

B The Factual Contention of the Parties ‘11 8 In their Motion for Summary Judgment the Defendants first contend that the Plaintiffs in their amended complaint abandoned their claim under Title 5 V I C § 80 and rely exclusively on their claim for mandamus relief However this Court notes that the Plaintiffs titled their amended pleading First Amended Complaint as opposed to Petition for Writ of Mandamus by which they titled their original pleading Moreover in numbered paragraph 3 of the First Amended Complaint

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the Plaintiffs represent that they are appearing individually and otherwise pursuant to the provisions of Title 5 V I C § 80 While the Plaintiffs are self representing litigants who do not possess the artful drafting skills of lawyers, their First Amended Complaint sufficiently puts the Defendants on notice that they were proceeding under Title 5 VIC § 80 ‘11 9 To support the motion for summary judgment the Defendants submitted the U S Virgin Islands Social Studies Curriculum Guide in addition to the affidavits of Victor Somme Assistant Commissioner of the Department of Education, and Milton Potter Executive Director for the Virgin Islands Board of Education ‘11 10 In their presentation of facts the Defendants outlined the expectations that were to be achieved at the various grade levels under the Cultural Education/Social Standards as defined by the 2013, Board of Education Meeting Report The affidavit of Milton Potter makes references to promotional policies promotion and retention grading graduation requirements cultural education and the infusion of social studies standards as adopted by the Board The affidavit of Victor Somme states summarily that the Department of Education adheres to the Curriculum Guide to the best of its ability and has adopted measures to monitor teacher compliance ‘1 11 The Social Studies Curriculum Guide was developed in 1986 and is a broad and generalized guide to the adopting a Social Studies Curriculum it introduces Virgin Islands and Caribbean History and Civics integration at the Ninth Grade level ‘11 12 The substance of the Plaintiffs claim is that the Defendants have failed to comply with Act No 4844 by their failure to implement V I History and basic Caribbean History into the public school curriculum for Grades K through 12 The representations of the summary judgment motion the affidavits of Potter and Somme and the Social Studies Curriculum Guide have not presented the factual evidence to demonstrate the absence of a factual dispute regarding the issue of the

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implementation of the History Curriculum While there is evidence that there is a framework for the teaching of Social Studies the Defendants have presented no facts from which the Court can determine that the History Curriculum has been implemented that satisfies the requirements of the statute ii 13 The party moving for summary judgment possesses the initial burden of identifying evidence indicating that there is an absence of any issue of material fact Martin at 391 If the moving party fails to carry its burden of production the nonmoving party has no obligation to produce anything even if the nonmoving party would have the ultimate burden of persuasion at trial Id ‘ii 14 To support their challenge to the Motion for Summary Judgment the Plaintiffs provided the Board of Education Management and Accountability Report dated November 5 2010 The report contains the following statement

The lack of a meaningful learning experience that reflect the historical and cultural connectors for our children is creating a deep void in their psyche and is damaging our children profoundly

‘1! 15 During the hearing on March 10 Plaintiff Mary Moorhead represented to the Court that she is a member of the Board of Education and the Board has never adopted a V I History and basic Caribbean History Curriculum for implementation into the V I Public Schools according to the provisions of Act No 4844 The Defendants insist that the 1986 Curriculum Guide evidences the Defendants compliance with Act No 4844 However the 2010 Board of Education Management and Accountability Report makes references to the lack of meaningful historical and cultural connectors within the learning experience These representations put conflicting evidence before the Court This conflicting evidence confirms that there are factual disputes that go to the heart of the matter before this Court Where there are conflicting pieces of evidence in the record a court cannot independently weigh the evidence to resolve the conflict and must accept as true the

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evidence that is most favorable to the nonmoving party so long as it is supported by proofs Rhymer v Kmart Corp 68 VI 571 617 (VI 2018)

(II 16 In addition resolving the conflict will require this Court to make credibility determinations A court may not make credibility determinations at the summary judgment stage Brod/111ml v Frazzer 47 VI 365 397 (VI 2012) If a credibility determination is necessary as to the existence of a material fact a grant of summary judgment is improper Id C The Writ of Mandamus ‘II 17 The Defendants in requesting summary judgment rely on the proposition that the Plaintiffs are seeking mandamus relief The V I Supreme Court 5 opinion which remanded this matter found mandamus relief was unavailable to the Plaintiffs Since it is obvious that the Plaintiffs in their amended complaint are no longer seeking mandamus relief this Court will not address that issue further CONCLUSION

‘l[ 18 A party seeking summary judgment has the initial burden of establishing the absence of a factual dispute Whether a curriculum has been implemented to satisfy the requirements of Act No 4844 is a question of fact The Defendants have failed to meet their initial burden and there is conflicting evidence that confirm a factual dispute In light of the above discussion the Defendants Motion for Summary Judgment is DENIED DONE AND SO ORDERED this a? day arch 2020

ATTEST W JUDGE OF THE SUPERIOR COURT TAMARA CHARLES

Clerk of the Court

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