Steven D. Payne, Sr. v. Donna Frett Gregory as Senate President of the 34th Legislature of the VI and Its Membership

Opinion

[N THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN *******

SENATOR STEVEN D PAYNE SR ) an Elected Member of the 34‘” Legislature and ) Ms Noellise Powell ) CIVIL N0 ST 22 CV 00247 )

Plaintiffs, )

) ACTION FOR DAMAGES

v ) DBCLARATORY JUDGMENT ) and INJUNCTIVE RELIEF DONNA FRETT-GREGORY as Senator and ) President ofthe 34"I Legislature of the Virgin ) Islands and its Membership, )

) Cite as 2024 V I Super 4 Defendants )

M )

TRESTON E MOORE, ESQ JOSEPH B ARELLANO ESQ MOORE DODSON RUSSELL & WILHITE P C ARELLANO & ASSOCIATES 14A None Gade No 4 & B Kongens Gade PO Box310 PO Boxll899 St Thomas V I 00804-0310 St Thomas V I 00801 AttorneysfiJr the Plainnfifs Attorneysfor the Defendants

MEMORANDUM OPINION

1|] BEFORE THIS COURT are two motions to dismiss filed by Defendants Donna Frett Gregory, as Senator and the President of the 34th Legislature and the membership of the 34th Legislature filed on August 10, 2022, and September 30 2022 respectively Plaintiffs, then Senator At Large Steven D Payne Sr (“Payne” or “Senator”) along with his constituent, Ms Noellise Powell (‘Powell’), have filed their Oppositions to the motions to dismiss on September 12, 2022, and October 21, 2022 Defendants filed a consolidated reply on November 21, 2022 Both motions raise the same arguments and for the reasons that follow, this Court will deny the motions I FACTUAL AhD PROCEDURAL BACKGROUND ‘2 This case stems from events that occurred on February 28, 2022, on the island of St Croix U S Virgin Islands Steven D Payne, Sr Senator At Large who was elected to the 34"1 Legislature

Senator Steven D Payne Sr e! a! v Donna Fret: Gregory Cite as 2024 V l Super4 as Senator and Prudent oflhe 34" Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

of the Virgin Islands, was working in the St Croix District 0n the day in question, Payne’s office manager asked him to give a ride to one of his female staff employees after a meeting of the Committee on Homeland, Justice and Public Safety to the Kings Alley Hotel where they both were staying Upon arrival at the hotel, Senator Payne carried the employee’s duffel bag to the hotel Once made the hotel, and during the course of travel, the intetactions between Senator Payne and the employee eventually resulted in accusations of sexual misconduct against the Senator 1B Following the incident the 34'h Legislature began its own investigation concerning the allegations of sexual misconduct By letter dated April 19, 2022, Senate President Donna Frett Gregory requested the Committee on Ethical Conduct, consisting of five senators, to convene and conduct an investigation into the allegations ofsexual harassment and to report the findings and make recommendations to the legislative body Three hearings were conducted on May 17, 2022, June 6, 2022 and July 6 2022 Payne reSponded and denied all allegations On July 19 2022 the 34‘" Legislature adopted Bill No 34 0287 imposing sanctions against Senator Payne in the form of suspension for fifty (50) consecutive days without pay and a letter of reprimand for violations of the Code of Ethical Conduct The Bill also provided “this suspension commences on July 21, 2022 and ends on September 27 2022 The suspension of Senator Steven D Payne, Sr , does not affect the Senator’s staff or Senator Payne’s ability to manage the affairs of his senatorial office ” On July 20, 2022, the 34‘” Legislature amended the bill by ad0pting Amendment No 34 588, which authorized the expulsion of Senator Payne on the identical grounds to those in the Bill, i e , for violation of the code of conduct and for the Legislature 3 zero tolerance of sexual harassment policy 14 On July 25, 2022, Plaintiffs filed an action for injunctive relief against Defendants seeking a temporary restraining order and preliminary injunction to prevent Senator Payne’s expulsion from the 34‘h Legislature of the Virgin Islands and an apgointment in the seat by his competitor, Angel L

Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 v I Super4 a: Senator and President ofthe 34'” Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

Bolques Jr , in the Senate Democratic Party primary election scheduled to occur on August 6, 2022 Upon the action being brought to the Court’s attention, the swearing in ceremony of Angel Bolques Jr had already taken place Hence, the Court issued an Order in this matter on July 27, 2022, denying Plaintifi‘s’ motion for a temporary restraining order as moot Plaintiffs thereafier filed their initial complaint dated July 28, 2022, seeking both declaratory judgment and injunctive relief in addition to a claim for damages 15 On August 10, 2022 Defendant Donna Frett-Gregory in her capacity as the President of the 34‘h Legislature filed a motion to dismiss the action on the following grounds (1) Plaintiffs failed to join indispensable parties, namely, the other fourteen (14) senators of the Virgin Islands Legislature; (2) the instant lawsuit violates Section 6(d) of the Revised Organic Act of I954 (“RDA”), which grants immunity to all senators for their votes in the Senate; (3) the lawsuit violates Section 6(g) of the RCA that defines the Legislature as the “sole judge” of qualifications of its members; (4) the remedy sought by Plaintiff Payne seeking damages violates Section 2(b) ofthe RCA, and (5) Plaintiff Payne failed to present his constitutional due process challenges to the Senate or, in the altemative, waived or abandoned them {6 Fallowing the Senate President’s motion to dismiss Plaintiffs filed an opposition on September 12, 2022, essentially challenging the Legislature s authority to expel Senator Payne under Section 6(g) of the RCA and denying the remaining allegations On September 30, 2022, the 34"1 Legislature responded to the Plaintiffs’ complaint, by adopting and incorporating in full the motion to dismiss filed by its co Defendant, Senate President Donna Frett Gregory On October 21, 2022, Plaintifi‘s filed an opposition denying Defendants’ allegations on nearly identical grounds asserted in their first opposition that was filed on September [2 2022 W On November 21 2022 Defendants file: a consolidated reply to the Plaintiffs two (2)

Senator Steven D Payne Sr e! a! v Donna Fm: Gregory Cite as 2024 v I Super 4 as Senator and President ofthe 34" Legislature er a! Case No ST 22-CV 247 Memorandum Opinion

oppositions, where they challenged this Court’s jurisdicuon based on the separation of powers and the non justiciable politncal question doctn'nes Defendants timber argued, Inter alia, that the unanimous decision to expel Senator Payne by the fourteen (14) senators was fitlly supported by the record before them and that Plaintlffs’ arguments are non men'torious in that regard Finally, Defendants contested reference to Title 14 V I C § 104 in the context of constitutional due process issues as inapplicable to the case at hand [I APPLICABLE LEGAL STANDARD FOR DISMISSAL 1|8 Defendants contend that the Plaintiffs’ lawsuit should be dismissed for (1) lack of subject matter Jurisdiction because the issues raised before the Court present non justleiable political questions that are rooted in the doctrine of separation of powers, and for (2) failure to join an indispensable party under Rule 19, i e , all fourteen senators of the 34‘“ Legislature, includmg Angel Bolques, Jr , Payne’s successor Virgin Islands Rule ofCivil Procedure 12(b) lists defenses to a claim for relief, which a party may assert by motion Specifically, V I R Civ P 12(b)(]) offers relief for lack of subject matter jurisdiction and V I R Civ P 12(b)(7) allows dismissal for failure to join a party under Rule 19 The Court will address the standard for each defense in turn A Rule 12(b)(1) Subject Matter Jurisdiction 119 Virgin Islands Rule of Civil Procedure l2(b)(l) provides that a party may move for dismissal on the basis that the trial court lacks subject matter jurisdiction Subject matter jurisdiction defines the court's authority to hear a given type of case Joseph v Leglslature ofthe Vzrgm Islands, 2017 WL 7660718 at *2(V I Super 2017) 2017 VI Lexis I75 see also Carlsbad Tech Inc v H117 8:0 Inc 556 U S 635 639 (2009) (citing Untied States v Morton 467 U S 822 328 (1984)) If the trial court lacks subject matter Jurisdienon, the dismissal should be without prejudice because a determination that subject matter jurisdiction is lacking does not constitute a decision on the merits

Senator Steven D Payne. Sr e! a! v Donna Fre110regory Cite as 2024 V l Super 4 as Senator and President oflhe 34" Legislature e! a!

Case No 81‘ 22-CV 247 Memorandum Opinion

of the case Id 110 This Court notes that all motions to dismiss based on Rule 12(b)(1) are not the same ’ “The applicable standard ofreview under Rule 12(b)(1) differs depending on whether the moving party has made a facial attack or a factual attack on the court‘s power to hear the case ”2 In a facial attack the argument assesses a claim on its face, specifically arguing its failure to sufficiently establish subject matter jurisdiction 3 When considering a facial attack, the court accepts the allegations within the complaint as true, considering them in the light most favorable to the non moving party Id (cumg Wlllmms v Juan F2 Luz: Hosp , para 4) In contrast, a factual attack occurs “when a defendant disputes the existence ofcertain jurisdictional facts ” and a factual attack may only occur “after the allegations of the complaint have been controvetted ” Tutu Park, Ltd para 6 Thus, in determining which standard apphes, the Court looks at the specific challenge raised by the movant Brewley v Government ofthe Vtrgm Islands 59 V 1 at 102 (2012) ‘11 [n this matter sub judtce, Defendants did not challenge any specific facts addressed in the complaint, therefore, none of the facts in the Plaintiffs’ complaint form the basis for the instant motion Instead, Defendants asserted that this Court does not have subject matter jurisdiction to hear the case as the matter before it interferes with the affairs of the legislative branch of govemment Defendants’ first assertion is that the Legislature is immune against any judicial inquiries based on the “Speech or Debate” Clause of Section 6(d) of the RCA Defendants’ second argument is based on the allegation that the Court cannot challenge the Legislature s authority to expel its members

‘See Brewleyv Govtofthe Virgin Islands 59 V1 100 (V1 Super Ct Feb 9 2012) Janina?! Julesv Thompson 2015 V l LEXIS 74 (VI Super Ct June 25 2015) Klolzbach v VI Water& Power Am}: 2016 V I LEXIS 28 (V l

Super Ct Mar 29 2016) Gardinerv V I Hosp: & Facilities Corp 2016‘” LEXIS 157(V1 Super Ct Oct 4

323142 Park, Ltd v Gov: ofthe Vlrgm Island: 2019 V 1 Super 30U para 6 (quoting James-& Jules v Thompson No

SX 09 CV 136 2015 WL 13187393 ‘2 2015 V1 LEXIS 74 (V 1 Super Ct June 25 2015) (unpublished)) 3 Rae: v Cheerham 2019 V 1 Super 99U para 8 (citing lesllams v Juan F L10: Hosp 2019 V 1 Super 56U para 3)

Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 VI Super4 a: Senator and President afzhe 34‘" Legislature e: a! Case No ST 22 CV 247 Memorandum Opinion

because the Legislature is the “sole judge” of its members qualifications, and not the Court 1112 First, the Court recognizes the Legislature’s authority to discipline its membership, but only a court can determine whether such discipline occurred in violation of the U S Constitution, the Revised Organic Act of the Virgin Islands of 1954, or an external statute It is for the Court to determine whether any right or protection granted under the U S Constitution, the Revised Organic Act, or a law was violated during the disciplinary process The movants generally assert that the challenge of the Legislature’s actions by the judicial branch presents a non justieiable politncal question The 34th Legislature contests the truth of Plaintiff's factual allegations. that is, Inter aha, Plaintiff‘s assertion that he was denied due process, and introduces evidence that controverts Plaintiffs claims Defendants argued Plaintiff had notice at every step during the process, the opportunity to be head and Plaintiff was in fact heard The Legislature’s assertions mostly constitute factual attacks as they concern the Court's “actual ability to hear the case based on facts, or the lack thereof, as developed in the record ” Vzrgm Islands Tel Corp v M113, 2018 WL 3120823, at ‘1 (V I Super 2018) (citation and internal quotation omitted) Accordingly, the Court may ‘ weigh the evidence and satisfy itselfas to the existence of its power to hear the case ” Id B Rule 12(b)(7) and Rule 19 (a)(l)(A) Failure to Join an Indispensable Party $13 In reviewing a motion to dismiss under Rules l2(b)(7) and 19, the court must accept all allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the non moving party See Junmex Kommerz Trans" G M B H v Case Corp , 65 Fed Appx 803, 805 (3d Cir 2003) It is the movant's burden to prove that a non party is indispensable to the adjudicatlon of the action Fed Home Loan Mortgage Corp v Commonwealth Land Title Ins Co No 92 CV 5255 1993 U S Dist LEXIS 4051 1993 WL 95494 at ‘5 (E D Pa March 31

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Senator Steven D Payne. Sr a a! v Donna Fret! Gregory Cite as 2024 V I Super 4 as Senator and President ofthe 34'" Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

1993) Rule 19 governs when joinder of a party is mandatory The Third Circuit has determined that courts considering a Rule 19 motion must undemke a two step inquiry See General Reflactorxes Co v First State Ins Co 500 F 3d 306 2007 WL 24l677l at ‘3 (3d Cir 2007) Jamey Montgomeiy Scot! Inc v Shepard Ntles Inc 1] F 3d 399 404 (3d Cir 1993) First the initial determination the court must make is whether the absent party is "necessary" to the action under Rule 19 Gen Refiactortes Co 500 F 3d 306 2007 WL 2416771 at *3 A pany is ”necessary" under Rule 19(a) ifjoinder is feasible See V I R Civ P 19(a) If the court determines the party is "necessary", the party must be joined Gen Refractories Co 500 F 3d 306, 2007 WL 241677] at *3 If a party does not satisfy the requirements of 19(a) the Court need not inquire limiter Temple v Syntheses Corp 498 U S 5 8 III S Ct 315 I 12 L Ed 2d 263 (1990) If the party is necessary but may not feasibly bejoined under Rule 19(a), the court must turn to the second step in the inquiry See id Where the com determines that a party must be joined under Rule 19(a), but doing so would be procedurally infeasible (e g , where joinder of the party would destroy diversity of the parties and thus, jurisdiction of the court), the court looks to Rule 19(b) to determine if "in equity and good conscience," the party is "indispensable" that is, whether "the action should proceed among the parties before it, or should be dismissed " V I R Civ P 19(b), see Jamey, 11 F 3d at 405 American Home Mortgage Corp v First American Title Ins Co 2007 U S D13! LEXIS 83337 ‘7 9 114 Since Virgin Islands Rule of Civil Procedure 8(a)(2) explicitly states that the Virgin Islands is a notice pleading jurisdiction, a plaintiff merely needs to provide a basic legal and factual basis for his

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Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 V I Super4 a: Senator and President ofthe 34“ Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

claim to put a defendant on fair notice ofthe claims brought against him ‘ In fact, “the complaint need not identtfy the particular legal theories that will be relied upon, but it must describe the essence of the claim and allege facts sufficient to demonstrate that the complaining party has been injured in a way that entitles him or her to relief ”5 Pleadings must be “fatally defective before they may be rejected as insufficient ”6 The purpose ofthe not1ce pleading standard is to avoid “dismissals ofcases based on failure to allege specific facts which, if established, plausibly entitle the pleader to relief ”7 '15 In making the plausibility determination, the Virgin Islands Supreme Court in Joseph v Bureau ofCorrections 54 V I 644, 649 50 (V I 20] 1) adopted the following framework

“First, the court must take note of the elements a plaintiff must plead to state a claim so that the court is aware ofeach item the plaintifi‘must sufficiently plead Second, the court should identify allegatxons that, because they are no more than conclusions, are not entitled to the assumptlon of truth These conclusions can take the form of either legal conclusions couched as factual allegations or naked assertions devoid of timber factual enhancement Finally, where there are well pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief ”8

If the remaining facts are sufficient for the court to draw a reasonable inference that the defendant is liable based on the elements the plaintiff must plead then the claim is considered plausible Id [1] LEGAL DISCUSSION

1116 The motions to dismiss set forth five main issues brought for resolution before this Court 1 The first issue is whether Plaintiffs’ failure to join the other fourteen (14) senators ofthe 34'"

‘ Bank ofNova Scam v Flavms Super Civ No SX l6-CV l25 20l8 WL 745958 at ‘6 (Super Ct Feb 2 2018) see also M111: Willa!!!” v Mapp 67 V I 574 585 (20”) 5 Howe v MMG Ins Co 95 A 3d 79 81 82 (Me 2014) (internal quotation marks omitted) ‘ Comm v British American Tobacco PLC 796 S E 2d 324 333 (N C Ct App 20I6) 7 Basra Sens Inc v GovlofVIrgm Islands No S C!" CIV 2017-0084 20l9 WL 2488037 at ‘4 (V I June I3 20l9) (citinng R Civ P 8 Reporter's Note and Mill: Walllams 67 VI 574 at 585) ' See also Barshmger v Legislature ofVirgm Islands No ST I l CV 24 2012 WL 4793846 at ’1 (V I Super Ct Sept 28 2012) see also Santiago v Warmmster Tp 629 F 3d 121 [30 (3d Cir 2010) (quoting Ashcrofl v Iqbal 556 U S 662 88! (2009))

Senalor Steven D Payne Sr e10! v Donna Fm: Gregory Cite as 2024 VI Supera a: Senator and President ofthe 34" Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

Legislature violated V I R Civ P 19(a)(l)(A)

2 The second issue touches upon a question whether Defendants are “immune” against any judicial intrusions pursuant to the “Speech or Debate” clause of Section 6(d) of the RCA 3 The third issue presents the major discussion of this case It revolves around the question whether the 34'“ Legislature being the “sole judge” of qualifications of its members under Section 6(g) ofthe RCA had the authority to expel Senator Payne from the office 4 The fourth issue raises the question ofwhether Plaintifi‘s’ pursuit of damages violates Section

2(d) ofthe RCA

5 The fifth and final issue addressed by the Defendants is whether Plaintiff Steven Payne failed

to raise constitutional challenges before the Senate during investigative and disciplinary hearings

‘117 In addition to the written representations, the Court also heard oral arguments in relation to these motions on January 10 2023 Although the parties were allowed to argue matters on the merits at the hearing, the Conn will address each issue in turn as it pertains to the motions to dismiss A The Superior Court’s Jurisdiction ‘I8 As a preliminary matter the Superior Court has jurisdiction over the instant case and is not barred from review for several reasons First, pursuant to 4 V I C Section 76(a), the Superior Court has original jurisdiction over all civil actions regardless of the amount in controversy 9 Since the Plaintiffs challenge, Inter aha, Defendants decision to expel Senator Payne fiom the 34‘“ Legislature and seek equitable relief in the form ofcompensatory damages the matter is civil in nature Therefore, this Court’s subject matter jurisdiction is established

Haynesv Ouley 6| VI 547 554 (2014) 9

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SenatorSIevenD Payne Sr 2! a! v Donna Fren-Gregmy Cite as 2024 VI Super4 as Senator and Pravda»! ofthe 34’” Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

119 Second, and more importantly, throughout their written and oral arguments, Defendants maintained that this lawsuit must be dismissed because it presents a non justiciable political question that is beyond the scope ofthis Court’s jurisdiction on grounds ofseparation of powers '0 Defendants averted that the Court may not act as a “super parliamentarian” and second guess the decision of the fourteen (14) senators that resulted in expulsion of Senator Payne ” In response, Plaintiffs countered that their actton is not barred by the political question doctrine, because they did not request the Court review the validity of the internal rules of the 34'h Legislature or to verify whether the Legislature abided by its own rules when expelling Senator Payne '2 See Transcrth ofM0110" Hearmg Plaintiffs conceded that although under the separatlon of powers doctrine, request for such review would present a nonjusticiable political questlon and interfere with the legislative branch instead, their goal was to establish whether the 34‘h Legislature violated the external sources of law, to wit the U S Constitution and the RDA when it ultimately decided to expel Senator Payne from the Senate under Secnon 6(3) of the RCA ‘5 ‘20 It is well established that the Revised Organic Act of 1954 “divides the power to govern the territory between a legislative branch, an executive branch, and a judicial branch,” reflecting that “Congress ‘implicitly incorporated the principle of separation ofpowers into the law of the territory ’ Kendall v Russell 572 F 3d 126 135 (3d Cir 2009) (quoting Smith v Magras 124 F 3d 457 465 (3d Cir 1997)) (citations omitted) see also Gerace v Bentley 65 V1 289 301 (V I 2016) Balbom v Ranger Am ofthe V1 Inc 70 V I 1048 1084 (V I 2019) (stating Congress delegated cenain

‘° Defendants Consolidated Reply p 2 “ [bid at p 9 12Transcript atp 120 l 21 ‘3 Plaintifl‘s’ oppositions to the motions to dismiss dated September l2. 2022. and October 21 2022 (preliminary statements)

Senator StevenD Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 v1 Super4 as Senator and President oflhe 34“ Legislature er a1 Case No 81‘ 22 CV 247 Memorandum Opinion

powers to the Virgin Islands Government and “established a system of separation of powers within its branches ), Todmann v People ofthe V1 57 VI 540 543 (V l 2012) The doctrine prohibits one branch of government from exercising powers of the other two Bonn v Fawkes, 61 V I 201, 212 (VI 2014) It is also true that under the political question doctrine, “certain cases present questions that are non justiciable ” See Goodwm v U S Federal Election Comm'n, 2012 WL 4009903, at ’6 (D V I 2012), see also Barshinger v Legislature of Virgin Islands, No ST 11 CV 24 2012 WL 4793846 at *2 (V 1 Super Ct Sept 28 2012) A matter is non justiciable when a concern over the separation of powers between coordinate branches of government is so inextricably intenwined to the case at hand that a judicial forum would be an inappropriate place for resolution of that issue ’ 1d (citing Baker v Carr 369 U S 186 217 (1962)) Courts typically decline to interfere with the internal workings of the legislative branch when a matter concerns a legislature's violation of its own internal rules See Brown v Hansen 973 F 2d 1118 1 122 (3d Cir 1992) However, in cases when a legislative body violates some external source of law, such as a constitutional or statutory provision, the matter is justiciable Consequently, courts may rule on legislative compliance with external laws, 1 e , the RCA or the United States Constitution or some external law Hansen at 1124 see also Mapp v Lawaetz 882 F 2d 49 55 (3d Cir 1989) ‘21 This Court is mindfitl that ‘the people of the Virgin Islands speak through the voice of the Legislature” and thejudiciary does not sit to second guess its informed judgment Alele v People of the V I 59 V I 215 228 (VI 2012) With this general principle in mind the Court turns to the appropriate standard ofjudicial scrutiny for each claim raised by the Plaintiffs 122 Plaintiffs raised at a minimum two constitutional challenges to the 34‘“ Legislature’s decision to expel Senator Payne from the Senate Their first claim is that the decision to expel Payne violated Section 6(g) of the RCA because the phrase :slole judge of qualifications of its members and

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Senator Steven D Payne Sr 2! at v Donna Fret! Gregory Cite as 2024 V l Supcr4 a: Senator and President ofthe 34’" Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

elections” does not preempt an authority to expel a duly elected member from the Legislature According to Plaintiffs, Section 6(g) is solely restricted to legislature’s functions to act as a “gatekeeper” and “filter” of incoming candidates for the office Second, Plaintiffs claim that the illegal expulsion caused a violation of Senator Payne’s constitutional due process rights under the premises of the Fourteenth Amendment As a result, Senator Payne was deprived of his office and a salary In addition to the above referenced claims, Plaintiffs also raised concerns that the Legislature’ s ultimate decision to substitute a lesser punishment (suspension and a letter ofreprimand) with greater punishment (expulsion) violated the spirit of the double jeopardy clause of 14 V I C § 104 123 In evaluating Plaintiffs’ constitutional and statutory challenges, this Court has determined that Plaintiffs’ concerns touch upon statutory interpretation of the U S Constitution and the RCA, hence the judicial forum is the appropriate place for the resolution of those issues To reiterate this Court has not been asked to review whether the 34"I Legislature complied with its internal rules when disciplining Senator Payne Therefore, as a guardian ofthe U S Constitution and the Revised Organic Act, this Court has subject matterjurisdiction over the instant matter B Joinder of indispensable parties under V I R Civ P l9(a){l)(A) and (B)(i)

1124 Having concluded that this Court has jurisdiction over the subject matter, this Court turns to the question whether the Plaintiffs failed to comply with V l R Civ P 19 Pursuant to V I R Civ P Rule l9(a)(l)(A) and (B)(i)

“A person who is subject to service ofprocess and whose joinder will not deprive the court of subject matterjurisdiction must be joined as a party if.

(A) in that person‘s absence the couxt cannot accord complete relief among existing parties, or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may

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(i) as a practtcal matter impair or impede the person's ability to protect the mterest ”

The party seeking joinder need only establish that one of the grounds under Rule l9(a)(l) exists Whyham v Piper Aircraft Corp 96 F R D 557 560 (M D Pa.l982) see also Koppers Co v Aema Ca: & Sur Co 158 F 3d 170 175 (3d Cir 1998) Under Rule l9(a)(l) the Court must first ask whether complete reliefmay be accorded to those persons named as parties to the action in the absence of any missing parties ” Gen Refiactories Co v Fm! State Ins Co , 500 F 3d 306, 313 (3d Cir 2007) In making that determination, the Court weighs the factors below and considers whether the suit can proceed “in equity and good conscience” without the necessary party See V l R Civ P Rule

19(b)(1) (4) 1[25 In determining whether a party is indispensable, a court should consider (1) to what extent a

judgment rendered in the person's absence might be prejudicial to him or those already parttx, (2) the extent to which, by protective provismns m the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided, (3) whether a judgment rendered in the person's absence will be adequate, and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder Id see also Seneca Nation ofIndians v New York, 383 F 3d 45, 48 (2d Cir 2004) 1126 These factors “are not exhaustive, but they are the most imponant considerations in deciding whether to dismiss the action " Gardiner v Vtrgin Islands Water & Power Auth , 145 F 3d 635, 640 (3d Cir 1998) “Due to the equitable nature of the inquiry, there is no precise formula for determining whether a necessary party is indispensable ” Gateco Inc v Saflzco Ins Co ofAm Civ No 05 2869, 2006 U S Dist LEXIS 23386 at ‘5 (E D Pa. Apr 26 2006) (citation omitted) The party moving for dismissal for failure to join an indispensable party “has the burden of producing evidence showing

Senator S(evenD Payne Sr eta! v Donna Fret! Gregwy Chests 2024 VI Super4 as Senator and President oflhe 34“ Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

the nature of the interest possessed by an absent party and that the protection of that interest will be impaired by the absence Holland v Fahneslock & Co Inc 210 F R D 487 494 (S D N Y 2002) (quoting Citizen Band Potawalomz Indian Tribe v Collier 17 F 3d 1292, 1293 (10th Cir 1994)) “If a non party is necessary, cannot be joined and is indispensable, the action cannot proceed and must be dismissed Jamey Montgomery Scott Inc v Shepard Niles Inc , 1 1 F 3d 399 403 (3d Cir 1993) 1[27 Without specifically citing V I R Civ P Rules 12(b)(1) and (7), Defendants argued inter aha that Plaintiffs’ complaint must be dismissed for lack of subject matter jurisdiction and failure to join a party under Rule 19 The moving Defendants maintained that this case should be dismissed because Payne failed to join or name indispensable parties, i e , the other fourteen (14) senators of the 34m Legislature, in violation of V I R Civ P 19(a)(1)(A)," including his replacement, Senator Angel Bolques, Jr , pursuant to V I R Civ P 19(a)(1)(B)(i) because, as it relates to Senator Bolques, Jr , the reinstatement sought by Plaintiff Payne would serve to the detriment of Bolques, Jr and result in his expulsion fiom the Senate Id at fn 23, see also Id , Transcript at p 55,1ines 2 11 With respect to the latter, Defendants argued during the hearing that the reinstatement of Senator Payne would also result in violation ofthe separation of powers doctrine because it would potentially occur through this Court’s order and not by means of democratic voting process of the citizens of the Virgin Islands '5 Defendants are correct on this issue But, the only case Defendants cited to support this argument of joinder is Richards v Jones 47 V 1 I97 201 (VI Super Ct 2005) where the trial court ordered the joinder of the members of the Committee on Ethical Conduct Senator Richards was accused of sexually harassing two female staff employees in the Twenty fifth Legislature and brought suit for declaratory judgment and injunctive relief against Senate President David Jones Richards had not

" Defendant Donna Frett-Gregory's Motion to Dismiss, pp I I 13 see also Defendants' Consolidated Reply pp 2 3 lsTranscript atp 5011 I9 seeaIsoatp 5218 24 14

Senator Steven D Payne Sr 2! a! v Donna Fretl-Oregwy Cite as 2024 VI Supet4 as Senator and President ofthe 34" Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

served the Defendants at the time of filing his Complaint and subsequently filed a First Amended Complaint within the time permitted by law followed by proper service ofthe Defendants In contrast, Payne brought suit against Donna Fret! Gregory as Senator and President of the 34“ Legislature and the Membership ofthe 34‘" Legislature and properly served the Executive Director of the Legislature Hence, Richards is inapplicable 128 Next, it is true that a court order reinstating Plaintiff Payne in his senatorial capacity followed by an expulsion of Senator Angel Bolques, Jr would constitute an intrusion into the realm of the legislative branch of the government and therefore violate the separation of powers doctrine The Court further recognizes that it has no authority to create an additional senatorial seat in the Legislature should it find Payne’s expulsion was improper On its own accord the Court understands that it cannot compel the currently serving 35‘“ Legislature to admit Payne into the office Thus, on this issue the Court agrees with Defendants 1|29 However, with respect to questions of law that touch upon V I R Civ P Rule 19, the Court does not agree with the Defendants The Legislature failed to argue either explicitly or implicitly that any of the unnamed senators claim a cognizable interest in this matter or that this Court's eventual determination ofthe Legislature’s rights would somehow impair or impede an individually unnamed senator’s ability to protect his or her purported interest To the extent the Senate President or the Legislature argues that a determination of their rights is somehow hampered by Plaintifi’s failure to individually name each senator, such an argument remains unavailing There is no premise or basis to conclude that any of the individually unnamed senators claim an interest that is so situated that disposing ofthe action, as it the stands, would impede or impair the Legislature’s ability to protect its interest Defendants’ arguments do not reflect that any ofthe individually unnamed senators claim an identifiable specific interest in these proceedingsl 5Nor do they reflect how their individual absence

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Senator Steven D Payne Sr e! a! v Donna FreIIoG'regory Cite as 2024 VI Super 4 a: Senator and President ofthe 34" Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

will prevent this Court from grantmg complete relicfamong existing parties Afterall, the membership is inclusive of all fourteen (14) senators who voted against Payne Finally, Defendants did not demonstrate to what extent or how ajudgment rendered without the senators being specifically named would be prejudicial towards them since they are part of the membership Nothing in the record supports such a proposition Therefore, Defendants’ assertions have no bearing on a Rule 19 analysis Accordingly, no rights will be impeded or impaired, as neither the remaining thirteen (l3) senators nor Bolques Jr are necessary under V I R Civ P Rule l9(a)(l)(B)(i) 1130 In opposition, Plaintiffs asserted that they met minimum pleading requirements in accordance with V I R Civ P Rule 8(a) and properly served the opposing patty under Rule 12(a)(2) Plaintiffs correctly argued that they were only required to file a “short and plain statement” of their complaint in compliance with the V I R Civ P Rule 8(a)(l)(2),"’ which provides in pertinent part

“(a) Except as otherwise provided in these Rules, a pleading that states a claim for relief must contain

(1)3 short and plain statement ofthe grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support

(2) a short and plain statement of the claim showing that the pleader is enntled to relief because this is a notice pleading jurisdiction and the pleading shall be set forth in separate numbered paragraphs as provided in Rule 10(b), with separate designation of counts and defenses for each claim identlfied in the pleading ”

(31 Considering that the Plaintiffs have also brought suit against the Membership of the 34‘h Legislature, the Court does not find that naming each senator individually makes a wmarkable distinction between the membership and the naming of individual senators The suit was brought

'° Plaintiffs Opposition to Defendant Donna Ftett Gregory‘s Motion to Dismiss, p 3 23:23:22,353; 3.533233755292 317"” CM 2°24 V' 3”“ Case No 81‘ 22 CV 247 Memorandum Opinion

against the 34‘h Legislature collectively, and each cause of action is brought as a result of concerted behavior, not personally to any senator Neither does the Court find failure to name Angel Bolques, It individually, amounts to failure to join an indlspensable party Plainttfi‘s properly presented a plain statement of causes of action and the basis for relief under the V I R Civ P Rule 8(a) by asserting that Defendants have, collectively, violated external sources of law (i e , beyond the Rules of the Legislature), implicating the United States Constitution and the RCA, when expellmg Senator Payne from the 34‘“ Legislature and ultimately disregarding voters’ choice to have him as their representative at large Moreover, the evidence on the record supports finding that Plaintiffs’ representations are more than naked assertions or eonclusory statements deprived of any factual basis Their assertion that section 6(g), the Legislature being the sole judge of the qualifications of its members, does not include the authority to expel, rises above the threshold of a naked assertion Finally, allegations pleaded in the Plaintnffs’ complaint and factual findings on the record are enough to raise a right to relief above the level of speculation As such, the complaint is sufficient to allow the case to proceed and address pleadings based on the merits of the asserted claims f32 Plaintiffs further asserted the President of the 34"I Legislature was not sued individually, but only in her official capacity as an “agent” of the Legislature Id As such, the 34‘" Legislature was collectively served through the Summons and Complaint upon Defendant Donna Frett Gregory pursuant to V I R Civ P 4(i)(4) ‘ According to V I R Civ P 4(i)(4)

“In any lawsuit based upon any action conduct or activity ofthe Legislative or Judicial Branches of the Government, the Executive Director of the Legislature or the Administrator of Courts shall be personally served with a summons and a copy of the complaint ”

‘7 Plaintiff's Opposition to the 349‘ Legislature’s Motion toll?7ismiss, p 3

Senator Steven D Payne Sr 2! al v Donna Fret! Gregory Citeas 2024 VI Super4 as Senator and PrcSIden! ofrhe 34'“ Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

During the hearing, Plaintiffs posited that there are no indispensable individual parties in the context of V I R Civ P Rule 19 and compared the 34'“ Legislature to a corporation, which can be sewed through its executive body '8 Besides service upon the Senate President, service was properly effectuated upon the 34‘“ Legislature as a separate Defendant, through the Executive Director, therefore the 34th Legislature has been properly joined particularly since no one is sued individually Collectively, all are represented through membership 133 In evaluating the plain text of V I R Civ P Rules 8(a) and 4(i)(4), the Court agrees with the Plaintiffs Following the strict framework set forth in the above referenced rules, Plaintiffs complied with the service of process requirements First, Plaintiffs filed a fully pleaded complaint seeking relief in the form ofdeclaJ-atory judgment that satisfies notice requirements in accordance with V I R Civ P Rule 8(a)(2) Second since Plaintiffs instituted the instant action against the 34'h Legislature and its President, which comprise one legislative body, the process was proper under Rule 4(i)(4) The Court is unable to glean any procedural exceptions that would require Plaintiffs to individually join all fourteen (14) members of the 34‘“ Legislature Therefore, Plaintiffs joined all the necessaty parties as required under the rules of civil procedure For the reasons given above, the Court finds that the Defendants have failed to meet their burden for dismissal on a rule 12(b)(7) motion

C Concerns Over Violations of the “Speech or Debate” Clause of Section 6(d) of the Revised Organic Act

£34 This case serves as an example ofthe fine line ofthe intersection ofpolitics and law that poses a challenge for courts As the Court is mindful of this intersection, it will meticulously consider the issues raised by the Defendants In their motion to dismiss, Defendants averted that Plaintiffs’ lawsuit

1"l‘rai'isci'ipt,atp 96725 seealso atp 971-6 13

Senator Steven D Payne Sr eta! v Donna Fret! Gregory Cite as 2024 VI Super4 a3 Senator and President ofthe 34“ Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

was filed in violation of the “Speech or Debate” ptotection afforded to the members of the Virgin Islands Legislature by Section 6(d) of the RCA '9 Section 6(d) of the Revised Organic Act provides in pertinent part

“No member of the Legislature shall be held to answer before any tribunal other than the legislature for any speech or debate in the legislature ”

The “Speech or Debate” Clause of the Revised Organic Act is worded similarly to the Speech or Debate Clause of the United States Constitution which provides that “for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other place ” U S Const art 1, § 6 Because the policies underiying the “Speech or Debate Clause” of the United States Constituuon and the Speech or Debate Clause of the Revised Organic Act are also closely parallel, the Third Circuit Court of Appeals has found “that the interpretation given to the Speech or Debate Clause ofthe Federal Constitution, whiie not dispositive as to the meaning ofthe legislative immunity provision of the Virgin Islands is nevertheless highly instructive ” Government ofthe Virgin Islands v Lee 775 F 2d 514 520 (3d Cir 1985) ‘35 The Supreme Court of the Territory of Guam likewise noted the similarity in wording and underlying policy between the L'nited States Constitution's “Speech or Debate” Clause and the “Speech or Debate” Clause of the Organic Act of Guam, 48 U S C § l423c(b), which is nearly identical to the “Speech or Debate” Clause of the Virgin Islands Revised Organic Act of 1954 See Hamlet v Charfizuros 1999 Guam 18 1999 WL 359191 *2 (Guam Terr June 4 1999) The court took guidance from case auLhoiiLy interpreting the United States Constitution's provision in its interpretation of the “Speech or Debate Clause of the Organic Act of Guam Id 1B6 This Court will follow the course charted by the Third Circuit and the Guam Supreme Court

’9 Defendant Donna Frett-Gregory’s Motion to Dismiss. p 1];

20

SenatorSrevenD Payne Sr e! a! v Donna Fret: Gregory Cite as 2024 VI Super4 as Senator and Prasadem ofthe 34" Legislature e! 0! Case No ST 22-CV 247 Memorandum Opinion

by considering the case precedent interpreting the “Speech or Debate” Clause of the United States Constitution in determining whether the senators are immune from suit in this case The “Speech or Debate” Clause absolutely bars members of Congress from suits for either prospective relief or damages, so long as they are engaged in the sphere of legitimate legislative activity Eastland v United States Servtcemens Fund, 421 U S 491 501 503 95 S Ct 1813 44 L Ed 2d 324 (1975) Accordingly, “the purpose ofthis immunity is to ensure that the legislative function may be performed independentiy without fear of outside interference ’ Supreme Court of Vzrgmza v Consumers Union ofUS Inc 446 U S 719 731 100 S Ct 1967 64 L Ed 2d 641 (1980) 137 For the Virgin Islands Legislature to carry the burden of defending itself or to bear the consequences of litigation's results, it would be forced to divert its attention from their legislative tasks in serving the people of the territory Thus, guided by the interpretation of the “Speech or Debate” Clause of the United States Constitution, this Court finds, that, as a general rule, so long as the Virgin Islands legislators are engaged in the sphere of legitimate legislative activity, they are immune from suit including actions seeking damages, as well as those seeking only declaratory or injunctive relief Hispanos Umdos v Gov? ofU S Vzrgin Islands, 45 V I 619, 622, 314 F Supp 2d 501 503—04 (D VI 2004) 138 The movants posit that Section 6(d) ofthe RCA immunizes all members ofthe 34‘” Legislature from liability for their votes, as well as from any judicial inquiry as to their motives in relation to the business on the Senate floor that resulted in expulsion of Senator Payne Id Cltmg Lewis v Legislatw'e ofthe VI 44 V I 162 165 (ten Ct 2022), see also Eastland v U S Servzcemen s Fund at 503 Defendants argued that under the “Speech or Debate” Clause, all fourteen (14) members of the 34'h Legislature were entitled to be skeptical regarding Payne’s testimony to the Committee on

Senator Steven D Payne Sr e! a! v Donna FreII-Gregoo: Cite as 2024 VI Super4 as Senator and President oflhe 34'” Legislature et a! Case No 81‘ 22 CV 247 Memorandum Opinion

Ethical Conduct and question his motives in relation to “Jane Doe” 2° In other words, members of the Senate were free to discredit Payne’s testimony during the investigative and disciplinary hearing on the Senate floor Id at pp 7 8 For the reasons stated above, Defendants contested that this Court is not at libetty to come to a contrary conclusion, or “re weigh” the testimony prov1ded before the Senate by Senator Payne Id At this juncture, the Court agrees with the Defendants with respect to senators’ autonomy to express their opinion during the hearing of Payne’s matter and vote on the Senate floor 1B9 Further Defendants relied on United States v Menendez, 831 F 3d 155 (3d Cir 2016) by arguing that the “Speech or Debate” privilege protects their “legislative act” that resulted in expulsion of Senator Payne 2' Under Menendez, to detennine whether the legislative act is capable of such protection, the Courts follow the two step framework Id First, they look to the form of the act to determine whether it is inherently legislative or non legislative Id Some acts are clearly legislative in nature, that no further examination has to be made as to determine their appropriate status Id Examples of “manifestly legislative acts” include introducing and voting on proposed resolutions and legislatlon, introducing evidence and interrogating witnesses during committee hearings, subpoenaing records for committee hearings, inserting material into the Congressional Record, and delivering a speech in Congress Id And even though ‘ such manifestly legislative acts may have been pursued and accomplished for illegitimate purposes, such as personal gain, the acts themselves are obviously legislative in nature ” Id Thus “an unworthy purpose” does not eliminate Speech or Debate protection 1d 140 Second, if an act is neither manifestly leglslative nor clearly non legislative, then it is ambiguome legislative, and we proceed to the second step of the Speech or Debate analysis Id

3° Defendants Consolidated Reply, p 6 2' Transcript atpp SS 57 2!

Senator Steven D Payne Sr mm v Donna Fm: Gregory Cite as 2024 v1 Super4 as Senator and President 411:: 34" Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

There we consider the content, purpose, and motive of the act to assess its legislatlve or non legislatwe character Lee at 521 (3d Cir 1985) Ambiguome legislative acts—including trips by legislators and informal contacts with the Executtve Branch will be protected or unprotected based on their particular circmnstances See id at 524 In Lee, for example, a legislator from the Virgin Islands faced criminal charges for a trip he took supposedly on the Government’s behalf Id Lee argued that legislative immunity batted the prosecution because he engaged in legislative fact finding during the trip Id [The court] first explained that there was nothing inherently legislative or non legislative about the trip because it was only legislative to the extent it “involved legislative fact finding ” 1d at 522 Rather, “[i]t is the content of Lee’s private conversations, and not the mere fact that the conversations took place, that determines whether Lee is entitled to legislative immunity ’ Id We then determined that Lee’s conversations were not “in fact legislative in nature so as to trigger the immunity ” Id To reach that conclusion, we consider “the content of Lee’s private conversations” and his “purpose or motive ’ for engaging in them 1d at 522 24 1|41 Applying the first step of the standard provided in Menendez, the movants put forth the procedure employed and the decision of the 34"I Legislature to expel Payne was proper and constituted a “manifestly legislative conduct ’ that consisted of introducing and adoptlng Bill No 34 0287 and Amendment No 34 588 Id at p 58 lines 4 ll Defendants further posited that the hearings held before the committee were consistent with the Rules of the 34III Legislature Id at p 58, lines 11 14 Therefore, all questions and interrogations before the Senate were part of the legislative process protected under the “Speech or Debate” Clause Id at lmes l4 19 The ultimate decision to expel Payne on July 20, 2022 was made during a regularly scheduled Senate session in [the] course of legislattve business Id at pp 58 59 Therefore, the first step of the Menendez analysis is satisfied With respect to the second step this (igurt finds that since all the indtcatots on the record

SenatorSlevenD Payne Sr e: a! v Danna Fret! Oregon; Cite as 2024 VI Supcr4 as Senator and Presldem ofthe 34'” Legislature e! a! Case No ST 22-CV 247 MemowIdum Opinion

leave no doubt that the act ofthe 34‘h Legislature was purely legislative in nature, the second step of the analysis is not feasible 142 In addition to Menendez, the Defendants supplemented their arguments by relying on Lewzs v Legtslamre of Virgin Islands 44 V1 162 165 (Terr V I 2002) and asserting that the Territorial Court in that case did not inquire into the legislative action at issue namely, the consideration and passage ofzoning legislation even though the Plaintiffs contended that a legal variance was invalid Id , at p 60, lines 1 23 The Court held that “purely legislative 80110118” are not subject to review by thejudiciary Id The Court concluded that the validity ofthe variance in question must be determined without subjecting the Legislature to litigation and subsequently granted the Legislature’s motion to dismiss Id In its reasoning, the Court pointed out that the purpose of the legislative immunity under the premises of the “Speech or Debate” Clause is to prevent “intimidation of legislators by the Executive and accountability before a possibly hostile judiciary ” Id citing Tenney v Brandhove 341 U S 367 372 S 71 S Ct 783 (1951)) At the conclusion of their arguments Defendants posited that they should not stand before this Court and subject themselves to an attack for their vote in the course of their regular legislative business that was accompanied by a proper procedure 1d at p 63, lines 1 20 143 In response, Plaintiffs countered that the 34“I Legislature and its President have been sued only in conjunction with their collective “arbitrary, capricious, and illegal action in violation of the Revised Organic Act by incorrectly assuming an unfounded ability to expel a duly elected member ”’2 Plaintiffs challenged Defendants immunity under the Speech or Debate” clause by arguing that Section 8(a) of the RCA limits the Legislature s authority and power to “all rightfiJI subjects of

1’ Plaintiffs Opposition to Defendant Donna Frett Gregoryz'; Motion to Dismiss. p 3

24

Senator Steven D Payne. Sr er al v Danna FreII-Gregoor Cite as 2024 V 1 Super 4 as Senator and President ofthe 34" Legislature e! a! Case No ST 22 CV 247 Memorandum Opinion

legislation not inconsistent with this Act or the laws ofthe United States made applicable to the Virgin Islands ”23 In other words, the immunity extends only to the legislative process and does not prohibit inquiry into the Legislature’s actions on the floor Id As such, the Legislature is not immune against the inquiry regarding the expulsion of Plaintiff Payne Id Finally, Plaintiffs asserted that they are not seeking any other remedy at this juncture, other than a declaratory judgment that Payne’s expulsion was illegal 2" 1144 Here, the Defendants do not enjoy absolute immunity from standing trial, especially when constitutional concerns are involved The United States Supreme Court has announced the general duty of the judicial branch to review compliance of other branches of government with the Constitution and laws The Court in Powell v McCormack, 395 U S 486 89 S Ct 1944 (1969) stated the following

“Especially is it competent and proper for this court to consider whether its [the legislature's] proceedings are in conformity with the Constitution and laws, because, living under a written constitution, no branch or depanment of the government is supreme, and it is the province and duty of the judicial department to determine in cases regularly brought before them whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the Constitution, and if they have not, to treat their acts as null and void ’

011mg Kilboum v Thompson, 103 l1 S 168 199 (1881) This announcement provides the authority for the rationale that a grant of power to any branch ofgovernment to engage in certain activity 18 not a license to violate the Constitution or laws See Bryan v Lzburd, 35 V I 46, 54 (Terr VI 1996) When such violation is alleged, it is the duty ofthe judiciary to decide whether the challenged activity

’3 Plaintiff's Opposition to the 34th Legislature’s Motion to Dismiss p 4 1‘ Transcript at p 105 IS 25

25

Senator Steven D Payne. Sr e! a! v Donna Fren-Gregoly Cite as 2024 V I Super 4 a: Senator and President ofthe 34"I Legislature e! a! Case No ST 22-CV 247 Memorandum 0pimon

was in compliance with the Constitution or laws Id 1145 Here, Payne alleged that his procedural due process rights under the Founeenth Amendment, to name the least, were violated when the 34“ Legislature expelled him from the ofl‘ice The Fourteenth Amendment, Section I provides

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cinzens ofthe United States and of the State wherein they reside No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the baited States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws ”

First, Payne argued that the 34"I Legislature did not have any power under Section 6(g) of the ROA to expel him, because the provision itself renders the Legislature exclusive power to judge the elections and its members’ qualifications to hold the office, but the language of Section 6(g) is silent on matters relating to expulsion Second, Plaintiffs elaborated that the 34'” Legislature’s decision to expel Payne violated his procedural due process rights afier the Committee on Ethical Conduct already recommended punishment in the form of suspension and letter of reprimand and the 34"1 Legislature agreed to it, but then imposed greater punishment A determination of whether there was violation ofdue process rights can only be addressed afier weighing the evidence, therefore dismissal would be premature 1l46 For the reasons stated above the Court is not barred from review of the instant matte: based on the ‘Speech or Debate’ clause when constitutional matters are called into question As explained above, the issues raised by the Plaintiffs and evidence on the record present sufficient grounds for this Court to inquire into whether the procedutes employed by the 34‘" Legislature complied with, not its Rules but the federal Constitution, the Revised Organic Act, and Virgin Islands law As the U S

26

Senator Steven D Payne. Sr at a! v Donna Fret! Gregory Cite as 2024 V I Super 4 a: Senator and Presadenl ofthe 34“ Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

Supreme Conn stated, no branch ofdepartment or government is supreme under a written constitution that is the supreme law and as guardian of the Revised Organic Act and the U S Constatution, this Court is compelled to review whether the 34‘h Legislature’s actions in Payne’s matter were in compliance 1l47 On the validity of the intemal rules of the 34‘“ Legislature that provide for expulsion, Defendants argued that according to Brown v Inmate»,25 it has been determined there is no violation of internal legislative rules which present non justiciable political questions as long as “external sources of law” are not violated As such, the Defendants should not stand before the Court for violations of their internal legislattve rules, ifany It! The Court agrees with the Defendants but note: that neither the Plaintiff nor the Court has addressed issues related to the internal rules of the 34'" Legislature 1:48 The pivotal issue is whether the 34'" Legislature statutorily “had the ability’ to expel Senator Payne in the first place 2‘ First, Plaintiffs argued that the Revised Organic Act does not authorize the Virgin Islands Legislature to impose sanctions upon its members Id Thus, the internal rules of the 34"I Legislature authorizmg expulsion of its members violate the provisions ofthe RCA Id Although Plaintiffs acknowledge that the Legislature ‘shall be the sole judge of qualifications of its members, Section 6(3) of the RCA does not explicitly authorize expulsion Id Section 6(g) provides, in pertinent part

The legislature shall be the sole judge of the elections and qualifications of its members, shall have and exercise all the authonty and attributes, inherent in legislative assemblies and shall have the power to institute and conduct investigations, issue subpoena to witnesses and other parties concerned and administer oaths

’5 973 F 2d Ill8(l992) 2‘ Plaintiffs' Opposition to Defendant Donna FrettoGregory 5 Motion to Dismiss, p 2

Senator Steven D Payne Sr era! v Donna Fm: Gregory Cite as 2024 v1 Super4 as Senator and President 01m 34'» Legislature e! a! Cue No ST 22-CV 247 Memorandum Opinion

Second, Plaintiffs agreed with the Defendants to the extent that Payne was initially qualified to hold the office under Section 6(b) of the RCA at the time he was elected however, they posited that Senator Payne did not commit a crime that would justify his “disqualification” or “expulsion” by the statutory standards 27 As a result, his expulsion was illegal Id 1|49 During the January 10 2023 hearing Plaintiffs also argued that in Brown the Supreme Court held that the legislature may not by its own rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method or proceeding established by the rule and the result which is sought to be attained Brown at 1122 See also Transcript ofMotion Hearing at p 91, lines 1 20 Therefore, the 34'11 Legislature is the “sole judge” of qualifications of its members as long as it Operates under the constitutional restrictions as stated in Powell 1|50 With reSpect to the wording and teIos of Secnon 6(g) of the RCA Payne posited that the Revised Organic Act is silent on how a member of the Legislature becomes “unqualified ” Id , at p 92, lines 12 19 Had the ROA permitted expulsion it would explicitly delegate such power to the Legislature in its text Id By correctly referencing the text of the U 8 Constitution as standard for interpretation for the RDA, Payne argued that unlike in the RCA, both Houses of Congtess have that specific power to expel a member of Congress through votes of two thirds of majority Id Since neither the express language nor the Spirit of Section 6(g) of the ROA demonstrate that the noun is not the expulsion clause it is appropriate to consider Section 12 of the RDA, a recall, of any elected official Id , at p 93 lines 4-12 Finally Plaintiffs argued that it is a direct violation of the RCA to expel a member of the Senate three months prior to the election [or] within their first year of service

2’ Plaintiffs Opposition to Defendant Donna Frett-Gregory2’3Motion to Dismiss pp 3-4

28

Senator Steven D Payne Sr :1 a! v Donna Fret! Gregory Citeas 2024 VI Super4 a: Senator and Prudent ofthe 34" Legleature el a! Case No ST 22 CV 247 Memorandum Opinion

in the Senate Id at p 93 lines 14 22 See ROA § 12(c)(6)

151 Finally Defendants argued during the hearing that even though Section 6(g) of the RCA does not explicitly mention the expuision ofa member elect, it implies that the framers ofthe Revised Organic Act intended for the Legislature to have the authority to expel 2‘ Defendants cited fn 6 in Mapp that addressed an opinion by the Virgin Islands district com that said

“In view of the absence ofany express procedural limitations relating to the expulsion of members from the Legislature we must conclude that the framers of the Revised Organic Act intended to leave those procedures exclusively to the Discretion of the Legislature This conclusion is reinforced by the Organic Act's designation of the Legislature as the “solejudge” of its member's qualifications ”

[till]

“This is not to say that a court is powerless to consider a removal said to be based on a member's lack of standing qualifications when there is a mere sham or fraud without any basis in fact ” Id

152 With respect to justiciability of the given issue in conjunctton with the legislative functions under Section 6(g) of the RCA. the violations alleged in Plaintiffs’ complaint involve civil liberties, because Payne seeks declaratory judgment and damages under Section 2(d) Under Bryan v Lzburd, constitutional protections of these liberties would be nonexistent if any branch of government could ignore them pursuant to an alleged grant of exclusive power The institutional competence of courts in the field of constitutional and statutory law is well established Id Accordingly, this Court concludes although Section 6(g) of the RDA confers broad powers upon the legislature to determine what procedures to utilize in disciplining its members, those powers are not exclusive and final Id The Btyan court opined that the procedures utilized may not transcend constitutional or statutory limitations that are clearly in dispute Further, it is the duty of the courts to monitor compliance with

”TmscripL PP 4 75 12 24 I 25

29

Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 V 1 Super 4 a: Senator and President ofthe 34“ Legislature e! a! Case No ST 22-CV 247 Memorandum Opinion

those limitations Id Since Plainttffs raised allegations of constitutional and statutory violatlons the propriety of Payne’s expulsion from the office is a justiciable issue regardless of whether he prevails on the merits or not I Constitutional premises of expulsion of an elected official.

$53 In order to determine the scope and meaning of “sole judge of qualifications of its members” under Section 6(g) ofthe ROA, this Court must examine the historical background and congressional application of Art 1, Section 5 of the Constitution, a premise that laid a foundatton for Section 6(g) of the ROA and bears similar meaning It is appropriate to analyze historical developments to determine the true intent ofthe framers of the U S Constitution Therefore, as the matter is justiciable dismissal would be inappropriate 2 Functional equivalent of Section 6(g) of the ROA in other U S jurisdictions 154 In order to understand Section 6(g) of the ROA better, it is also important to interpret similar enactments in other U S jurisdictions Out of 50 states and five tem'tones and possessions of the United States, only seven states, New York, South Carolina, Alaska, Massachusetts, New Hampshire, and Minnesota; and two territories Guam and the U S Virgin Islands, mention that the legislature shall be the “sole judge" of its members’ qualifications The remaining majonty ofother United States jurisdictions, however, provide for in their state and territory constitutions similar wording with regards to the expulsion of a member of the legislature

“Each House shall have power to determine the rules of its proceedings and punish its members or other persons for contempt or disorderly behavior in its presence, to enforce obedience to its process to protect its members against violence or offers of bribes or private solicitation, and with the concurrence of two thirds, to expel a member, but not a second time for the same cause, and shall have all other powers necessary for the Legislature of a free State A member expelled for corruption shall not thereafter be eligible to either House and punishment for contempt or disorderly

Senator Steven D Payne Sr e: a! v Donna Fret! Oregon: Cite as 2024 V I Super 4 as Senator and Presulen! ofthe 34‘" Legislature er al. Case No ST 22-CV 247 Memorandum Opinion

behavior shall not bar an indictment for the same offense ”29 Evidently, the preceding language is unequivocal as it relates to the punishment of legislative members which leaves no room for ambiguity such as what constitutes being the “sole judge of the elections and qualifications of its members” particularly if the Revised Organic Act of the Virgin Islands specifically provides a remedy for removal of an elected oficial from the Senate, to wit, recall election initiated by a two thirds vote

3 Expulsion of Senator Payne from the Senate pursuant to Section 6(g) of the RDA

$55 This Court notes that on numerous occasions, Defendants averted that the Legislature has the power to expel a member who “loses” their “qualification" during their time in the office as a result of a felony conviction 3" As such, Defendants imply that Payne 3 alleged sexual misconduct towards “Jane Doe ’ justifies such measure The Court is unaware of any such criminal conviction as a result of these allegations of sexual misconduct As Plaintiffs has put forth during the January hearing, the Investigative Report Revised (April 13, 2022) prepared by investigators did not find that sexual harassment took place Id at p 102, lines I 8 Considering this the Court is obligated to address these issues only upon an evidentiary hearing as the Fifth and Fourteenth Amendments guarantee that no person shall be deprived of “life, liberty, or property, without due process of law ” U S Const, amends V, XIV Pursuant to 48 U S C (5 1561, the equal protection and due process ciauses of the Virgin Islands Bill of Rights provide as follows [n]o law shall be enacted in the Virgin Islands which shall deprive any person of life liberty or property without due process of law or deny to any person therein equal protection of the laws ’ V I C Rev Org Act of 1954 § 3 Several key phrases—such

2’ Constitution of the Commonwealth of Pennsylvania, Art II. Section I l a"Transcript, p 80 l 14 30

31

Senator Steven D Payne Sr eta! v Donna Fret! Gregory Cite as 2024 VI Super4 as Senator and Preuden! ofthe 34'” Legislature er al Case No ST 22-CV 247 Memorandum Opinion

as “due process of law” and “equal protection of the laws”--appear in both provisions Balbom v RangerAm ofthe VI Inc 70VI [048 1062 2019 VI 17 1 14 (2019) 156 Procedural due process generally guarantees an individual the right to notice, fair procedures, and a hearing before a neutral decisionmaker Mathews v Eldridge, 424 U S 319, 334 (1976) Procedural due process “is flexible and calls for such procedural protections as the particular situation demands ” Id (quoting Morrrssey v Brewer, 408 U S 471, 431 (1972)) 1157 Defendants allege, mter aha, that Plaintiffs never properly presented their constitutional due process challenges to the Legislature or in the alternative, they waived them 3' Citing Bryan v Lzburd, Defendants further argued there is no due process right or entitlement to the office of Senator and salary that goes with it under the 5'’1 and 14‘“ Amendments, as such, no due process challenge is cognizable by the Plaintiffs Id. Moreover, all charges that were brought against Payne were specific, substantiated, and were properly adde with sufiicient notice Id Defendants’ next argument was that Payne was given an opportunity to speak and defend himself before the Senate and/or the Committee on Ethical Conduct, however, he failed to do so and they further provided examples to support their contention Id One such example proffered is when Plaintiffs’ counsel submitted two (2) memoranda to the Committee on Ethical Conduct, they failed to bring any constitutional due process challenges 32 In Plaintiffs’ first memorandum following the preliminary inquiry dated May 20, 2022, Plaintiffs barely addressed their concerns as to vagueness” and “overbreadth” of Rules 801 and 802 ofRules ofthe Legislature without properly citing any legal authority 33 As for Plaintifi‘s’ second memorandum dated June 29, 2022, that followed “Jane Doc 5” testimony and the Committee’s

" Defendant Donna Frett Gregory’s Motion to Dismiss p I? 18 Ibid pp 18 19 3: gefmdant Donna Frett-Gregory 3 Exhibit 3 at p I See also Transcript ofthe January I0 2023 hearing, p 41, paras

Senator Steven D Payne Sr eta! v Donna Fret! Gregory Cite as 2024 VI Super4 as Senator and President ofthe 34" Legnslature e! a! Case No ST 22-CV 247 Memorandum Opinion

Statement of Charges, Plaintiffs yet again failed to raise any due process concerns based upon vagueness and overbreadth ofthe aforemenuoned rules 158 Plaintiffs countered that when the 34"I Legislatute disregarded the tecommendation of the Committee to suspend and ultimately determined to expel Senator Payne from the Senate, it was a total and complete disregard of his due process rights under the Constitution of the United States of America and the RCA per se 3‘ Additionally, Plaintiffs argued that Defendants not only violated the consumtional provisions, but also violated Plaintiff Payne’s due process rights under 14 V I C § 104 by disregarding initially proposed sanction of suspension and a letter of reprimand and imposing a greater punishment of expulsion instead Id at p 2 As Plaintiffs have demonstrated, on July 19, 2022, the Committee presented Bill No 34 0287 recommending a fifiy (50) day suspension period and the letter of reprimand The following day July 20 2022 Amendment No 34 588 provided for an expulsion of Senator Payne from the Legislature instead Id Additionally, Plaintiffs argued that the constitutional challenges were properly and timely raised in the course of the instant litigation Id at p 4; see also Transcript, at p l 16. lines 22 25 Finally, Plaintiffs asserted that Payne is entitled to his salary because it was illegally taken away from him as a result of his illegal expulsion Id , at p 117 lines ll 18 159 Before considering the adequacy of the process, this Court must determine whether due process requirements are appltcable They would apply only where an interest protected by the Fourteenth Amendment can be identified Bryan v Ltburd (clung Board ofRegents ofState Colleges v Roth 408 1‘ S 564 57] 92 S Ct 270] 2706 (1972)) The Fourteenth Amendment provides in pertinent part

" Plaintiffs’ Opposition to Defendant Donna Frett-GregoryészMotion to Dismiss, p 4

33

Senator Steven D Payne Sr eta! v Donna Fret! Gregory Cite as 2024 VI Super4 as Senator and President ofthe 34" Legislature er al Case No 81' 22-CV 247 Memorandum Opinion

“ nor shall any State deprive any person of life, liberty, or property, without due process of law ”

160 In Taylor v Beckham 178 U S 578 (1900) the Kentucky General Assembly adopted the findings of the election board that the defendants govemor and lieutenant governor elect were erroneously declared as winners The defendants claimed, Inter alia, that they were being deprived of their property (elected offices) without due process of law Specifically, they alleged that the Assembly met without notice to them or an opportunity to be heard The Supreme Court concluded that no right secured by the Fourteenth Amendment was violated The same holding was repeated by the Supreme Court in Snowden v Hughes 321 U S I 64 S Ct 397 88 L Ed 497 (1944) where it said

“More than forty years ago this Court determined that an unlawful denial by state action of a right to state political office is not a denial ofa right ofproperty or ofliberty secured by the due process clause

16] With respect to double jeopardy violations in conjunction with constitutional due process considerations, Payne parallels sanctions directed against him with 14 V I C {5 104 by pointing out that the Legislature punished him twice for the same offense This Court disagrees for two reasons First, 14 V I C § 104 is inapplicable Section 104 provides, “an act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other ” The Court discovered no such precedent that involves the application of § 104 to a civil matter, neither has Plaintiff presented any such stare decisis And even if § 104 was hypothetically applicable here, the Plaintiff’s argument would fail because by passing the second resolution aiming to expel Senator

34

Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 V I Super 4 a: Senator and President of(he 34’h Legislature e! a! Case No 81' 22-CV 247 Memorandum Opinion

Payne, the Legislature had effectively stricken down the first resolution with a lesser punishment Furthennore, contrary to Plaintiffs’ belief, the Court has found no rule or law that obligated the Legislature to follow the Committee’s recommendations for sanctions and did not oblige the Legislature to follow the recommendation Therefore, the Legislature’s second resolution did not violate the “spirit” of Section 104 D Damages Under Section 2(b) of the Revised Organic Act 1162 Defendants maintain that Count [II of the Complaint must be dismissed because the Senate President, other Senators, as well as the 34‘h Legislature as a body, are immune from an award of damages resulting from official acts under Sections 2(b) and 6(6) of the RCA 3‘ They posit that no consent to suit has been granted by the Senate President, or any other Senator, or by the VI Legislature, and none is alleged by the Plaintiff Id Section 2(b) ofthe Revised organic Act provides

“The government of the Virgin Islands shall have the powers set forth in this Act and shall have the right to sue by such name and in cases arising out ofcontract, to be sued Provided, that no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by this Act[ ]”

163 In response, Plaintiffs referred to their Complaint by stating that Payne is entitled to compensation as a duly elected Senator 3“ Namely, because the 34‘h Legislature chose an illegal remedy expulsion, Plaintiff Payne was illegally deprived ofhis salary 3" At this point, the record is not clean as to whether Plaintiff is still maintaining this argument with regards to salary, therefore this matter can only be decided after the merits have been considered

3’ Defendant Donna Frett Gregory 5 Motion to Dismiss, pp l7 l8 3‘ Plaintiffs' Opposition to Defendant Donna Frett-Gregory's Motion to Dismiss, p 4 3"l‘tansei'ipt p I” 11 I8

35

Senator Steven D Payne Sr e! a! v Donna Fret! Gregory Cite as 2024 V I Super 4 as Senator and President ofthe 34'" Legislature er a! Case No ST 22-CV 247 Memorandum Opium

IV CONCLUSION 164 For the reasons explained above, the Court will deny Defendants’ motions to dismiss Given all the arguments raised by the Defendants, they do not dispel the singular and most important issue raised by the Plaintzfl‘s, i e , whether the 34'h legislature violated Section 6(3) of the RCA upon

expelling the Senator Thus, the motions to dismi denied An appropriate Order shall follow I ’5

Dated January M 2024 ‘ MIKI/IW/ Renée Inw- Carty

Senior Sitting . _ , Superior Court ATTEST of the Vi @ Islands Tamara Charles Clerk of the Court

By _—W6 Donna D Donovan Court Clerk Supervisor 01 18 / 2024 i i

' IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS ’ DIVISION OF ST THOMAS AND ST JOHN *******

SENATOR STEVEN D PAYNE SR ) an Elected Member of the 34‘" Legislature and ) Ms Noellise Powell ) CIVIL NO ST 22 CV-00247 )

Plaintiffs, )

) ACTION FOR DAMAGES v ) DECLARATORY JUDGMENT ) and [NJUNCTIVE RELIEF DONNA FRBTT GREGORY as Senator and ) President of the 34‘” Legislature of the Virgin ) Islands and its Membership )

) Cite as 2024 V 1 Super 4 Defendants )

___._)

ORDER

THIS MATTER is before the Court on the motions to dismiss filed by Defendants Donna Frett Gregory, as Senator and the President of the 34th Legislature and the Membership of the 34th Legislature filed on August 10, 2022, and September 30, 2022, respectively The premises considered and in accordance with the Memorandum Opinion of even date, it is hereby ORDERED that Senate President Donna Frett-Gregory’s motion to dismiss is DENIED, and it is further ORDERED that the 34‘" Legislature of the Virgin Islands and its Membership 5 motion to dismiss is DENIED, and it is further ORDERED that copies of this Order shall be directed to the parties of record

Dated January 3 2024 9 {(14 é‘z(fl/5/{

7

Renée umbs Carty

Senior Si Judge, Superior Court ATTEST of irgin Islands Tamara Charles L Clerk ofthe Court W By: R __~~____ Donna D Donovan Court Clerk Supervisor 01 I 13/ 2024 01/18/2024