The president and secretary of the Fifth Constitutional Convention cannot sue the government in their official capacity, but there’s nothing stopping them from moving forward with the case as regular taxpayers, V.I. Superior Court Judge Darryl D. Donohue Sr. recently ruled.
The legal spat between the government and the delegates started a few months ago, after Gov. John deJongh Jr. announced in a press conference that he would not forward the convention’s draft constitution to President Barack Obama because it did not comply with local or federal law.
Gerard Luz James II and Mary Moorhead filed a motion for a writ of mandamus in June, asking that the court compel the governor to send the draft document onto the president and Congress.
The government filed its motion to dismiss the suit at the end of July, arguing that James and Moorhead, acting in their official capacities as the convention’s president and secretary, could not sue or be sued. The convention’s powers are limited to those laid out in its enabling statute, and further, there’s no indication that any of the other Constitutional Convention delegates gave James and Moorhead permission to file suit on their behalf, the government’s motion said.
Donohue agreed with the government’s argument, saying in his Oct. 13 ruling that the convention was "specifically" set up to draft a constitution.
"There is no enumerated statutory right that allowed the convention or any delegate the power to take any action beyond the preparing and agreeing upon a draft of the constitution to be forwarded to the governor of the Virgin Islands," Donohue wrote.
Because the judge said James and Moorhead didn’t provide any evidence that the convention’s enabling statute allows the delegates to file suit, he granted the government’s motion to dismiss.
However, James and Moorhead, as taxpayers, can file suit, Donohue added.
"Despite the general minimum requirements for standing, courts in other jurisdictions have held that where a petition for mandamus relief is sought to enforce a public or statutory duty, the petitioner need only show that he or she is a taxpayer and that there is an issue of great importance," he wrote.
In this case, the "fate" of the territory’s constitution is at stake, and the court is "compelled" to find the issue a matter of "great importance" to the people of the Virgin Islands, Donohue added.
The judge ruled that the case would proceed with James and Moorhead acting in their individual capacities and gave the governor 10 days to file a response to the revised petition for a writ of mandamus.
